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Dáil Éireann debate -
Wednesday, 28 Jan 1942

Vol. 85 No. 10

Emergency Powers (No. 139) Order, 1941—Motion to Annul.

I move:—

That the Emergency Powers (No. 139) Order, 1941, made by the Government on the 30th day of December, 1941, be and is hereby annulled.

Our object in putting down this motion is to endeavour to secure annulment of what we regard as a very iniquitous and far-reaching order. Our concern has been to ensure that the liberties of our citizens will be preserved, and that those liberties, which are vital and fundamental, liberties which in fact are birthrights, will not be trampled upon at the whim of any political Party which happens to secure transitory power in this country. In our view, those liberties and rights are violently assailed in Emergency Powers (No. 139) Order. I think it is clear to anybody who has examined that order, and who has taken any little time to compare the procedure in that order with the existing legal practice, that the order uproots the well-established legal code in this country, a code which has been based upon centuries of experience and progressive thought, a code which, to a very substantial extent, represents the creation of minds which sought to give a liberalising influence and effect to our entire code of jurisprudence in this country. It is because the order makes those radical and violent changes in what up to now has been a relatively liberal code of jurisprudence that we are anxious that this order should be annulled, and that the fundamental rights of our citizens should be preserved from the ruthless attack which has been made on those rights in the order to which I have referred.

I do not desire, in the course of the remarks which I have to make on this motion, to refer to what has come to be known as the Devereux case. I assume, in the first place, that any reference to that case would be out of order, since the persons who are charged in connection with it are in custody and are awaiting trial, and I do not desire here to make any reference to that case which would in any way prejudice the trial of those who have been apprehended and who will be charged in connection with it. At the same time one is bound to refer to the fact that Order No. 139 makes no reference whatever to what has come to be known as the Devereux case, and one is, therefore, entitled to assume that the Government did not make the order merely for dealing with that case, but that they made the order for the purpose of using it in any similar case in which the Government felt its use desirable from their particular point of view. We must, therefore, look upon this particular order as one which will probably have an extended currency, one which may, in fact, operate during the period of the emergency, and one for which some people may develop an affection even after the period of emergency has passed. It might be well, therefore, seeing that this is not just an ad hoc order but one which may have an extensive period of currency, to examine the present procedure in connection with our courts. We have, under our Constitution, certain defined courts, and we have a rather extraordinary court which is described as the Special Criminal Court, but it was always intended—and, in fact, it is really the position—that the procedure before the Special Criminal Court should be much on the lines adopted in the case of the ordinary courts in the country.

If a person is charged before the Special Criminal Court or before any of the courts of the country, it is necessary under the present legal code that depositions be taken on oath in an open District Court. There, those depositions are supervised by the district justice, and his legal training and his regard for the preservation of the existing legal code ensure that only properly admissible evidence is included in the depositions. When the deposition is duly made it is read over to the witness—again in open court— and that witness is required to sign the deposition that was read to him and he also signs an undertaking binding himself to give evidence in support of that deposition. That is the normal legal procedure in well-conducted countries in peace. That is the type of legal procedure which civilised communities regard as the best type of procedure to govern their normal civilian life.

Let us contrast that procedure with the procedure envisaged under Emergency Powers (No. 139) Order. Under that order the Government, which ought to have no judicial functions in respect of the courts of this country, has taken upon itself the power to arrogate those special judicial functions to itself and to issue an order which is calculated to direct the military court to take evidence of a type which the Government know perfectly well would not be admissible in the ordinary courts of the country and which probably would not be admissible even in the Special Criminal Court which was established under the Constitution to deal with exceptional cases and to be operative in exceptional times.

Under the Emergency Powers Order which we are discussing to-day it is not necessary to tender to the military court evidence on oath. A statement by a witness or by an accused person, even if not made voluntarily, will be admitted before the military court. It will be possible for a police officer to threaten a person with imprisonment or internment and in these circumstances to extract a statement from that person, be he a witness or an accused person, and to tender that statement in evidence to the military court. The statement, in fact, may not be signed at all. It may be extracted under duress from a prisoner or from a witness. It is not necessary for the person to sign it. It is merely necessary for a police officer to tell the military court that that person acknowledged that he made the statement, and a simple nod or the use of the American expression O.K. will be sufficient to ensure that that acknowledgment complies with the order which has been made by the Government.

One would imagine that even then the court might have some power to say that a statement extracted in that way was something which they could not admit in evidence. But the court has no power to take a decision of that kind. Once the statement is tendered in court, it is obligatory upon the court to regard that statement as evidence, and from that mandatory injunction the court has no possible escape. It is sufficient for a police officer to come into court and to say that such and such a person made the statement and that the person who made the statement acknowledged it. He need not even produce in the court any person to give evidence in support of the statement or to be cross-examined on the statement.

As if the scales were not already sufficiently weighted in favour of the prosecution, this order makes it perfectly clear that the right to put in an unsworn statement is a right reserved solely to the prosecution and that no similar right is extended to the prisoner. The defence, in circumstances of that kind, will have no opportunity whatever of testing the truth of the statement or of eliciting any evidence or information calculated to be in favour of the prisoner. We may be sure, since police officers are the instruments of the Government and since they are being armed with these unusually wide powers, that such a statement extracted from an accused person or from a potential witness will be of such a nature as will be calculated to ensure a conviction and that everything favourable to the accused will be carefully omitted from that statement. Even when a statement of that kind is obtained from a witness, it will not be possible for the accused to see the witness. The witness need not be produced in court. The prisoner will have no opportunity of cross-examining the person who made the statement and the court will have no discretion whatever to refuse to admit evidence tendered in that way, no matter under what circumstances that statement may have been obtained either from a witness or from the accused.

Powers of that kind are being given to a body which is described as a military court. But I always understood, and I think it is the view of the average citizen, that the primary function of a court, a function from which it can never escape, is to hold the scales evenly as between the prosecution and the prisoner. In this particular case, the order gives the court no such power and no such discretion. This order simply loads the dice completely against the prisoner, and one cannot escape from the conclusion that the purpose of bringing a prisoner to the court, armed as that court will be with this order, is not to try the prisoner but merely to sentence him to death. We might well be forgiven if we assume that a military court composed of military officers has very wide powers at present and that, because of the constitution of the court and the circumstances under which such a court is constituted, at all events a court of that kind might not be bound by the ordinary legal procedure or by the delicacies which are sometimes associated with that procedure. But, as if the court had not sufficient powers in the general body of the order, an omnibus provision is inserted which tells the court that they are not bound in any way by the rules of evidence either in common law or under statute law. So that, in fact, what we are doing is setting up a military court and giving it wider powers than any other court in this or in any other country.

Let us examine for a few minutes what exactly is this military court, what exactly it was intended to do, and in what circumstances it should operate. It seems to me that in a country at peace, supposedly a country that is constitutionally governed, where the will of the people is supposed to operate, it is little short of an anachronism that a military court should be set up in present circumstances. I think it is the general view of all people who have given any consideration to the matter in an abstract way that a military court ought only to function in very exceptional circumstances and where the civil law or the civil courts are inoperative. But I doubt if it was ever intended that a military court in this country should function side by side with the courts which are provided for in the Constitution. My understanding of the establishment of a military court in this country was that its sole purpose was to deal with the possibility of invasion, to deal with the possibility of aggression by an external people against our own citizens, and that, so far as any other type of offence was concerned, we had the civil courts available to deal with those offences and we had that extra special court— the Special Criminal Court—to deal with any abnormal offences. So far as it has not been shown by the Government that the Special Criminal Court is in any way deficient in powers for dealing with any type of offence which has yet shown itself in this country, the present military court is, of course, just a replica of the military court which was established under the Constitution (Amendment) Act in 1931.

On that occasion, Deputy Cosgrave, moving the Constitution (Amendment) Bill, made a lengthy case in support of the establishment of a military court but, even then, he did not think it necessary to equip the court with the powers which this Government proposes to give to its own special military court. The case was then made by Deputy Cosgrave—and I think it was really the kernel of the case then made—that the shooting of a high police officer in Tipperary and the difficulty of securing the operation of trial by juries rendered it necessary to establish a military court. The present Government, when in opposition, did not believe that it was necessary at that time that the Executive Council should be armed with the powers which they then sought, even though those powers were not as wide as the powers which this Government have now with the additional powers with which they propose to equip themselves under Emergency Powers (No. 139) Order.

On that occasion, most members of the Front Bench of the present Government Party, and quite a substantial sprinkling of those not now on the Front Bench but on the back benches, delivered themselves in violent opposition to the powers which the Government of 1931 sought, for dealing with the situation which that Government believed was at least as serious as the situation confronting this country to-day. It might be no harm at this stage if the House were to be reminded of what the Taoiseach said at that time.

If the Deputy will allow me, I wish to indicate the legitimate scope of this debate. The Oireachtas conferred on the Government certain powers to deal with a state of emergency. In the exercise of those powers, the Government made Order No. 139, which deals with the admissibility of a certain type of evidence. The motion before the House proposes to annul that order. The order, therefore, is in a very definite setting and the discussion should take place within that setting. The issue is the wisdom or unwisdom of making that order, possibly the necessity or the expediency of making that order. The motion does not throw open even the emergency powers legislation to discussion. That is the established practice in dealing with annulment motions. The Act is, therefore, not open to discussion, neither is the existence or jurisdiction of the military court, to which the Deputy refers. They must be taken as established. This order does not propose their annulment. The Deputy has been relevant in his main arguments, but may find it difficult to show the relevancy of quotations relating to military courts—which courts it is not now proposed to abolish.

Possibly, as I was not permitted to make the reference, there has been some unconscious misunderstanding of the point I was going to make. I submit that it is quite in order for me to recall the dangers of equipping military courts with wide powers and to draw upon the wisdom —the 1931 wisdom—of the present Taoiseach, to show that it is highly dangerous to give military courts not merely the wide powers then envisaged but the very much wider powers with which the Taoiseach now proposes to equip the court. I am merely quoting the very wise words of what were then a few wise folk on these benches.

I will hear the Deputy on that.

On that occasion, after he had been told by Deputy Cosgrave of what Deputy Cosgrave then described as a very serious condition of affairs in the country, the Taoiseach said:—

"The ordinary law is quite sufficient to deal with anything that has been referred to by the President. I, for one, and every man sitting here with me this afternoon, think and believe that if we were here in five years' time or in ten years' time we will see Bills introduced on lines like these, if the present state of affairs is allowed to continue and that we will be dealing in the last with causes and not with results."

Would the Deputy please give the reference?

Column 52 of volume 40 of the Official Debates. Warning the country and the House then of the dangers of giving an Executive exceptionally wide powers, Deputy de Valera then went on to say:—

"The Executive Council has a right to authority, but not the right to use it as any whim may wantonly suggest."

That is precisely what this Government, having got them, is doing to-day. It has authority and is using it now as any whim wantonly suggests. The present Minister for Supplies spoke in that debate as well and pointed out the dangers which threatened the liberties of the people of this country by the enactment of the Constitution (Amendment) Bill. Lining up behind Deputy Geoghegan and using his examination of the position, Deputy Lemass said:

"Deputies have heard the lucid exposition of Deputy Geoghegan that some of the provisions had no parallel in any legal code in the world, and that this Government had taken on powers that no other European Government except a group of brigands in some Eastern European State had taken on."

And this, Sir, although the powers were not nearly as wide as the powers which this Government is seeking to-day. Deputy Ruttledge, who subsequently, with his legal knowledge, became Minister for Justice, delivered himself thus:

"We find now that juries are going to be abolished.... They (the Government) want to substitute a sort of star chamber and to appoint officers as judges.... In a state of actual war, I challenge any member on the benches opposite to point to anything so Draconian or anything going so far as we find under this Bill."

The present Minister for Local Government also spoke on that occasion. His views are most interesting to-day. He said:

"We are going to abolish the courts. We are going to set up a revolutionary tribunal and, by a Public Safety Bill, we are going to appoint five persons to act as General Mulcahy's bloodhounds. They are going to operate in secret. We are going to deprive people of the right to elect representatives to this House. We are going virtually to wipe out the whole Constitution so that there is only one Article which this Bill is designed to preserve and that is Article 17.... You cannot do this thing in safety——"

said Deputy MacEntee

"—and in the hope that this House is going to exist.... Look at the history of every dictatorship that ever was established. They always appealed to the people when they were depriving the people of their liberties."

He went on:—

"When I hear the Minister for Local Government and the Minister for Justice talking smug platitudes, when I hear them talking about murder, and when I know what is in their minds, that it is nothing but the wholesale murder of their own countrymen that they are contemplating, I remember the lines of Shelley."

and then the Minister, with his special aptitude for poetry, quoted Shelley. He told us:—

"I met Murder on the way,

He wore the mask of Castlereagh,

Very smooth he looked, yet grim;

Seven bloodhounds followed him:

And one by one, and two by two, He tossed them one's heart to chew."

That was the Minister for Local Government and Public Health quoting Shelley in 1931. Shelley wrote more than that. The lines the Minister quoted were culled from Shelley's poem, "The Masque of Anarchy." That was not a one-verse poem. Shelley wrote other verses and Deputy MacEntee might have gone on then or might, as Minister for Local Government to-day, quote another of Shelley's verses from the same poem:

"What is Freedom? Ye can tell

That which Slavery is too well,

For its very name has grown

To an echo of your own."

Is not a verse of that kind apposite to the role in which the Minister appears to-day, having regard to his denunciation of the Constitution (Amendment) Bill of 1931?

Having quoted these speeches by members of the present Government to show the dangers of this abnormal method of dealing with offences and having pointed out, as the present Taoiseach did, the dangers of arming a Government with very wide powers, I think it would be no harm if we were to look at the court to which we are to give still wider powers than the powers this Government so vigorously opposed in 1931. The military court will, of course, be composed of military officers, every one of whom is on the Government's pay-roll and, consequently, in the economic pocket of the Government. These military officers have no knowledge whatever of law and do not purport to have such knowledge. They are simply military officers and they have no qualifications for dispensing justice. They are completely divorced from the independence with which this House rightly thought fit to equip the judges—an independence of the Government and a relative independence of this House, except in very unusual circumstances.

The Deputy is departing from the motion and seems to make an attack on a duly established court. He must relate his remarks to the motion which is in his name.

Nothing was further from my thoughts——

"The court is in the pocket of the Government."

Let the Minister quote more poetry. Let him stick to poetry which he is better at than anything else. I did not intend to make a reference to the individuals who comprise the court——

Except to say that they were in the pocket of the Government.

When the chattering ceases, I shall endeavour to make my point. I want to make the case that the military court is composed entirely of Army officers who have no legal training and do not purport to have legal training and that that is a particularly undesirable type of court to equip with wider powers than are given to highly-trained judges. This court has no real independence of the Government, its personnel is on the Government's pay-roll and is subject to the discipline of the Minister for Defence and the collective discipline of the Government. I say that a court of that kind is not one which should, in any circumstances, be entrusted with these very wide powers. The powers would be wide enough— too wide, in my view—to be given to highly-trained judges and, when we are giving them to people unversed in law and who do not even purport to have legal training, that is an added reason for stopping short at endorsing this Emergency Powers Order. That is a description of the personnel of the court and of their want of legal training. That is a description of a court which is in the pocket of the Government and on the pay-roll of the Government and it is to that court we are proposing to give these extra powers.

I begin to ask myself what purpose a lawyer would serve in a court of that kind. It seems to me that he would be a most useless and unwanted functionary there. An unsworn statement may be tendered in evidence to the court. The person who made that statement need not be produced to prove it. Even if present in court when the statement is being read, it is not obligatory on him to testify, on oath or otherwise, as to the accuracy of the statement. Circumstantial evidence may be adduced in the statement submitted and a lawyer may have no opportunity of challenging that statement or cross-examining the person responsible for it. In fact, the person alleged to have made the statement may not exist and there is no obligation on the police officer to testify as to whether the person is alive or not. Neither is there an obligation on the police officer to testify as to the character of the person who gave the statement. All that is necessary is to get such a statement. It need not be signed. All that is necessary is that the person who made it should say that it is all right. That statement may be submitted to the tribunal and the person who made the statement may be prevented from attending for cross-examination. On evidence of that kind, the court can arrive at either of two verdicts, but it has power to deliver only one sentence. It may find the prisoner guilty or not guilty but, if it finds the prisoner guilty on evidence got together in that unsatisfactory fashion, it has only one function, that is, to sentence that person to death and see that the execution is carried out with all possible expedition.

I suspect that it will be urged as a reason for endorsing this order that we must trust the Government, that we must have faith and confidence in the Government, and that, having faith and confidence in them, any number of these Emergency Powers Orders can be issued; that the most ruthless powers can be given to any court, and that everything will be all right so long as this Government remain in office to secure the due supervision of the execution of these orders. I know of no reason why we should be asked to trust the Government in the exercise of these powers under the Emergency Powers Act. They have distinguished themselves by abuse of their powers under that Act. They got that Act to deal with the danger of invasion and armed aggression against our people. It has been abused, and even prostituted to purposes widely divorced from the purpose for which we were led to believe the Act was required in 1939. We have an Act which, we were told, was to enable the Government to deal with invasion and aggression, used for the purpose of keeping down workers' wages and preventing employers from being troubled with demands for increased wages, notwithstanding the great increase in prices. The Emergency Powers Act has been utilised for the purpose of amending the Factory Acts so that young people can be exploited at night-work. The same Act has been used for the purpose of rendering the Trades Board Act null and void. Recently, we saw a typical abuse of the Act when the Minister for Local Government and Public Health made Emergency Powers Order, 109, to prevent the Dublin Corporation from supplying meals to necessitous people.

In the face of this evidence, and in the face of abundant additional evidence which could be produced, to ask us, the House, to trust the Government in the exercise of Emergency Powers (No. 139) Order, is to ask it to do something which I hope it will not do. We may, of course, be told that this order is to deal with the possibility that the State may be overthrown. I do not know on what ground that case is going to be made, if it is going to be made, except to divert the suspicion that an attempt will be made. But it does not seem to me that you can defend this order on that plea in a democratically governed country. If one looked for an example one might look across the water to Britain which is at war with a powerful and a very resourceful enemy. Britain is engaged in a war which compels her to take every possible step to prevent any weakening of military or national standing. Even though Britain is at war and is fighting to-day in most parts of the world, they have not found it necessary there to resort to the procedure adopted by the Government in Emergency Powers (No. 139) Order. I think I have as fair an idea of the position in the country as anyone sitting on the Government Front Bench and I know of no set of circumstances here which could be remotely associated with an organised attempt to overthrow the Government. If there were any serious attempts to overthrow constitutional government in this country I feel sure that the members of all Parties, desiring to maintain democratic and constitutional government, would deal with any such menace if it were to show itself.

This order seems to me to do one thing in the main, and that is to make the military court just a ruthless instrument of Party Government. The Government by passing this order coerces the court into acceptance of evidence which is not acceptable in any other court in the world, and is trying to shift on to the military court a responsibility which belongs to the Government itself. Quite clearly this Government order indicates what it wants the military court to do with anyone that the Government elects to bring before that court. It would be much more honourable if the Government met in the Council Chamber in Merrion Street and passed a resolution deeming any three, four or 100 persons to be guilty. That would be clear and the Government would take the responsibility. The Government in this case is imitating Pontius Pilate, washing its hands of all responsibility for death but coercing the military court to such an extent that it has no power but to carry out the instructions given it by the Government in what is described as Emergency Powers (No. 139) Order. The court through this order is executioner for the Government, but the Government lurks in the background while inciting the court to do things which it must do, faced as it is with an order of that kind.

There are two cases that one might quote to illustrate the danger of an order of this kind. With other members of the House I got a document recently, purporting to be the confession of one Stephen Hayes, and in the course of that confession——

That document is not relevant to this debate.

I do not want to put in the document, but I want to show the Government, before it is too late, the dangers of an order of this kind— dangers which they probably did not perceive. Whatever the document is, or whatever its value or credibility, that does not arise now. It would be possible to take that document—and let us assume that it is the most odious document in the world— and for some other Government to arraign before the military court two Ministers mentioned in it, but the person who signed the document would not have to appear or to testify to its accuracy. It would be incumbent and mandatory on the military tribunal to accept that document as evidence against the two persons mentioned. There is another case which might be quoted because it has a special significance for the Irish people. The Government probably remembers the famous Parnell-Pigott Commission and they know that an attempt was then made by forgery to "frame" Parnell. Only that the forger Pigott had to testify orally in support of the forgery, Parnell would have been "framed" by the commission. But Pigott was compelled to attend the court, and because he had to attend and could be cross-examined the case against Parnell collapsed. The forgeries which were created to ensnare Parnell fell to the ground because Pigott could be cross-examined. Pigott's blundering in cross-examination, and his inability to spell in court a word which was in the forged document, was solely responsible for the case against Parnell collapsing completely. If Pigott could have arraigned Parnell before a military tribunal that would not happen. Pigott could merely put the statement before the military tribunal, need not appear to be cross-examined and would not be asked to spell, and the case against Parnell would have been as faithfully made at the military tribunal. Had his British traducers tried to make that case before the Times Commission Parnell to-day might be a different person in the eyes of many people. In that way the British could have succeeded with the mud slinging they indulged in, but the fact that written evidence alone could not be accepted before the Times Commission was responsible for ensuring that that innocent man was able to vindicate himself. But any innocent men brought before the military court might not be able to vindicate themselves because written evidence will be taken and there will be no one there to be cross-examined in person.

I know of no circumstances operative in this country to-day which would justify the Dáil in approving of this order. I think it is a mischievous order in so far as it indicates that the Government intends to use a military court, armed with wide powers, to try people against whom they cannot get convictions elsewhere. Taken with many gloomy speeches on the economic front, it indicates that the Government are apparently seized with some kind of judicial panic, and do not seem to realise the dangers which they are themselves fomenting. Better that 100 guilty men should go free than that one innocent man should suffer. There is no assurance envisaged in the order that innocent men will not suffer when the dice is so heavily loaded against them. At a time when the vast majority of liberty-loving people throughout the world are striving to give expression to the conception of liberty in tune with human aspirations and human dignity, it seems to be an insult to our conception of human liberty and humanity that Parliament, in this still democratically-governed country, should be asked to deal with an order of this kind. I say that the order is an insult to our conception of liberty and humanity. It is an order which no circumstances present to-day could justify, and I hope the House, jealous of the basic rights of our citizens, will refuse to endorse it. If they refuse to endorse it, although the Government may be very much upset, I think the cause for the preservation of the basic liberty of the people will be still further solidified.

I formally second the motion.

It is, I think, no exaggeration to say that the provisions of the order which we are discussing have shocked both lawyer and layman. In discussing this motion, we have to approach the question of whether or not this order shall get from this House continued validity in the light that each Deputy here is exercising the last safeguard provided by our Legislature for the preservation of individual liberty. This order has been the subject of very serious argument and consideration in our courts for the last few weeks. The decision of our Supreme Court was given yesterday. In the concluding words of his judgment, the Chief Justice in referring to arguments of counsel for the appellants made the following statement as reported in the Press of to-day—I quote from the Irish Times and the Independent:

"It has been strenuously urged upon the court by counsel for the appellants that the orders in question were manifestly oppressive and unjust to accused persons and that, if that court refused the relief sought, it would be sanctioning an improper exercise by the Government of the powers vested in them by the Legislature. In our opinion, this contention is based upon a misconception of the duties and functions of the court. This emergency legislation is of a temporary character, passed for the purpose of securing the public safety and the preservation of the State during a time of national emergency. During such period, the duty of determining what provisions are necessary for securing that object is vested in the Government, but every such provision must be laid before each House of the Oireachtas and may be annulled by resolution passed by either House. Many of the arguments addressed to us would be more fittingly addressed to either House of the Oireachtas when considering the propriety of, and necessity for, the order in question. They are not matters which can properly be relied upon in a court of law."

The judiciary has, accordingly, passed the ball to the Legislature and a very grave responsibility lies upon each Deputy, in exercising this last privilege in favour of the liberty of the citizen, to consider whether or not he should vote for this motion. This motion, in my opinion, is one that must be given consideration on its merits or demerits, as the view may be. It is a decision which should not be made lightly on a mere Party vote. I approach this question, therefore, with a full sense of the personal responsibility that I, as a Deputy, have to exercise by voting for or against this motion. Before I shall finally determine how that vote will be cast, I shall await to hear the case that will be made by the Government. I have pointed out, and I wish to emphasise, the heavy responsibility that rests upon each Deputy in connection with this vote. The heavier responsibility, however, is upon the Government. The duty is cast upon the Government of making such a case for this order as will satisfy the minds and the consciences, not merely of each individual Deputy of this House, but of every right-thinking citizen in the country.

One of the judges of the High Court in his judgment stated that

"the plain effect of the provisions of the Constitution and of this legislation was that the natural guardian of the citizen's constitutional guarantees, the High Court of Justice in this State, had for the time being relinquished its guardianship and the inescapable effect of the war-time enactment is to deny the protection of the High Court to the citizen."

We find, therefore, that, in effect, every fundamental constitutional right of the citizen has been abrogated by this war-time legislation and that further serious in roads are being made by the provisions of this Order No. 139. The only safeguard the ordinary person now has from being caught up in the net of the provisions of this particular order is the decision of this House of the Legislature on this motion. Therefore, I approach this and I think all my colleagues on this side of the House also approach it, with a grave feeling of responsibility.

I want to make at the very outset of my remarks my position clear. Every legal instinct that I possess, all my training and all the experience I have had in the last 27 years in court, is against this order but, notwithstanding that, if the Government can make a case within the scope of the Long Title of the Emergency Powers Act, 1939, then I am prepared to consider whether or not in the public interest such a drastic order, such an unprecedented order as this is, should be given effect to, in so far as my personal vote is concerned.

Deputy Norton has said that no precedent can be found in any democratic country for the provisions of this order. It may be that the Government can make a case for such drastic legislation, and they owe it not merely to the House, they owe it to the people of the country, they owe it to the people who will come after us in this House, to make a strong, cogent and coercive case for the drastic provisions of this order. Should they make such a case, then I personally shall, much as I dislike the order, go into the Lobby with the Government. Should they fail to make such a conclusive and coercive case for this order, should they be unable to give evidence of such a state of public disorder, such a state of menace to the State and the Government of the State, either from internal aggression or from external sources allied to such internal aggression, then, as far as I am personally concerned, I shall vote against this order. Not merely must they, in my submission to this House, make a strong case, corroborated by facts and evidence, that the Government require this particular drastic instrument for the purpose of maintaining the safety of the State and public order, but they must go further and show that there are no other methods by which the safety of the State can be achieved. Even with those considerations overcome, and with that cogent evidence produced in this House, I would suggest that this order should be limited in its scope to the narrowest possible compass.

Deputy Norton has referred to Article 2 A. I do not wish to refer to it except to make two points. When Article 2 A was being introduced into this House there was, I think, nobody in the country who appreciated more what was intended to be achieved by the provisions of that Article of the Constitution and the necessity for introducing these provisions in the circumstances of that time, than the then President of the Executive Council, the present Leader of the Opposition. He did not introduce those provisions lightly or without full consideration or without having, over the years, previously taken every possible step that legal ingenuity had devised or could devise before these drastic provisions were introduced as an amendment to the Constitution. And, in introducing Article 2 A to this House, he made a case, corroborated by evidence and documents and facts, and the case that he made, however it was criticised by the members of the present Government Party, who were then on this side of the House, at all events convinced the majority of the people that there was a necessity for that instrument which he asked the Legislature to forge and put into the hands of the then Government.

I merely ask the present Government to do what Deputy Cosgrave did when he was the Head of the Government— to make a case for drastic provisions, far more drastic than ever were contained in Article 2 A of the Constitution. It is not unreasonable. So far from being unreasonable, it is the duty of the Government to make that case for the information of the Deputies, for the information of the country. If they make that case, then my attitude is clear but, having made that case, they must go further and show that there is no other way than this order of doing what they wish to achieve and then, I think, they should limit the scope and application of this order.

Like Deputy Norton, I do not wish nor do I intend to make more than one reference to the case which was the subject matter of court proceedings, just to warn the Government and ask them to make it clear to the people who think what I think, that this order is an ad hoc order, adapted to particular cases and not required for general purposes. It would seem a reasonable criticism of this order to state that it bears upon its face every evidence of being framed to meet a particular set of circumstances governing a particular case or cases. That criticism, in my submission to the Government, must be answered. When the Offences Against the State Act was going through this House, I put down an amendment, which was subsequently accepted and is now the law, that there should be a right of appeal from a decision of the Military Tribunal established under that Act. I justify that, not on abstract grounds of constitutional rights of citizens, not on mere grounds of justice, but upon the necessity for the Government or any Government to secure the public confidence in such a tribunal, and I suggested, and apparently I convinced the Government at that time, that there would be far more authority vested in the tribunals to be established under that Act if they felt that public confidence in those tribunals was a fact which could be relied upon.

In Article 2 A of the Constitution it was clear, implicit at all events, if not clear, that the laws of evidence bound the military tribunals set up under that Act and, so far as I was concerned, when I was charged with the very invidious duty of conducting prosecutions under that Article, my clear and explicit instructions were that the laws of evidence bound those tribunals and bound the people who were appearing on behalf of the prosecution before those tribunals. From that, so far as I was concerned, I never departed. This order, in effect, abrogates, or puts into the power of the courts set up under this order the authority to abrogate, every single rule of evidence.

There is in some quarters a popular delusion that, in dealing with the rules of evidence in courts, lawyers and judges are playing merely a technical game in which the rules of the game are far more important than the game itself. There is nothing further from the truth. Rules of evidence were established, and have been adopted under the Constitution of this State from 1922, as the law of this State. They grew up, the result of centuries of experience, framed in the interests of extraction of truth and justice. Rules of evidence, in particular in relation to the conduct of trials in criminal courts, had their existence in the desire of the courts to favour life— in the Latin phrase, in favorem vitæ. From the 18th century onwards, these rules were formulated and put into practice by the judges in favour of life as a reaction against the very stringent penalties that existed at that time but, so far as every judge and every court of any kind in England or in this country is concerned, where the trial of a person involved his life or his death, the rules of evidence were given the strictest interpretation and the prosecution was placed in the position of having to discharge the onus of proof. Rules of evidence are not mere rules of a game played by lawyers and judges. Evidence is the basis of proof. Without evidence you can have no proof of a crime. Nobody can controvert these propositions. This order allows a person to be tried, convicted and sentenced to death and lose his life without evidence and, therefore, without proof. I think we should pause before we allow such an order to get continued validity from the act of this House of the Legislature. We should require a very strong and cogent case to be made before we allow any such order to have continued effect.

Deputy Norton has given some instances of the effect of this order and I do not propose to occupy the time of this House by giving much further exposition of the effects of this order, but I do think that I should occupy the time of the House for a very few moments in directing the attention of the Deputies, or of those Deputies who wish to take an impartial and a reasonable view of this matter and approach the consideration of this motion in the spirit in which I certainly am approaching it, to this order for the purpose of seeing what it is doing; how can it be justified and then, finally, considering the Government's case—how does the Government justify it. The order, roughly speaking, is divided into three parts. The first part allows to be put in evidence before a military tribunal statements made by persons, which need not be signed, which may be given in evidence without the witnesses being present before the tribunal, without it even being demonstrated to the satisfaction of the tribunal that the witness is not available. That is, to my mind, one of the most serious effects in the scope of this order. The ordinary rules of our courts only allow the sworn testimony of a witness in a criminal case to be given in evidence when it is proved that that witness is dead.

In England, the sworn testimony of a witness can be given in evidence, if it is proved the witness is ill. Here, as a result of a decision of the Court of Criminal Appeal, it has been held that even in the case of a witness who had given sworn testimony before a district justice and who was ill and unable to attend when the case came for trial before the circuit judge, his deposition could not be given in evidence, notwithstanding the fact that counsel for the accused person consented to that deposition being given in evidence. Counsel for the accused, in the interests of his client, thought he would be entitled to admit that deposition by consent. His client was convicted and appealed to the Court of Criminal Appeal, not on that ground. Counsel who defended the person accused expressly disclaimed any intention of raising that point before the Court of Criminal Appeal. The courts were so jealous of the rights of persons charged with a crime when it was a crime triable before a circuit judge that the Court of Criminal Appeal set aside that conviction, although evidence was given on oath that the witness was ill and counsel for the accused person consented to the deposition being given in evidence.

All that need be done here, however, is that any person should come forward—he need not be a police officer or a member of any of the services, military or civil, of the State—and say: "A certain person made this statement and acknowledged it before me and did it voluntarily." It need not be made on oath before a judicial officer like a district justice, and there is no necessity to give evidence before the tribunal that a witness has gone back on his statement, has refused to give evidence, or is not available by reason of illness or other cause. The provision with reference to the giving in evidence of statements might possibly be considerably softened down, if the prosecution, in whom is vested the sole privilege of giving these statements, had placed upon it the duty of showing that the witness had refused to give evidence, had gone back on his statement or was not available by reason of illness, by reason of being kept away by force or some other circumstance of the kind. There might be something to be said for such an order—very little, but something—in that case. What is the justification for making it in the form in which it stands at the moment?

Those of us who have to practise in the courts and who are dealing every day with the evidence of witnesses know that we have before us in our briefs what is called a proof of the evidence of witnesses. That is a statement, prepared usually by a solicitor or by an experienced clerk in a solicitor's office, setting forth for the use of counsel a statement of the evidence which a particular witness is going to give. We, all of us who have to practise in the courts, go into court with this in front of us. We find the witness getting into the witness box and see how entirely different is the evidence given orally from what we have in our proof. The reason for that is obvious. A trained man has taken the evidence and has written it down in his own words. It is beautifully written in logical sequence and every point is brought out. The witness, a layman, although he may have read his proof of evidence before he goes into court, has to give his evidence in answer to questions and an entirely different complexion is very frequently put on that evidence by such a person's answers. In this case, this proof of evidence can be given and it can be given when it suits the prosecution. Everybody, I suppose, has heard the expression after a court trial or during a court trial: "So-and-so was a very good witness and so-and-so was a very bad witness." I have my own views about what is a good and what is a bad witness. The glibber a witness, the less I believe him. Many a bad witness, or so-called bad witness, is a man suffering from conscientious scruples, who wants to give his evidence fairly and truthfully and is halting and hesitating. The proof of his evidence, however, is cogent and clear, and if it be given in court, what a different complexion might be placed on that evidence.

Here, under the provisions of this order, power is vested in the prosecution to say, having seen a witness: "That fellow will be a terribly bad witness and counsel for the defence will make bits of him under cross-examination. We will take a statement from him and give it in evidence, while we send him back to the country." That can be operated, acted upon and accepted, and a man may lose his life on that evidence. Where is the justification for that? I want to know from the Minister for Justice if he cannot find some other means short of that even to try to achieve what he wants to achieve here. What is the necessity for going so far? Why could he not at least make it incumbent on the prosecution to say that no statement will be admitted in evidence unless a man is dead, has gone back on his statement, will not give evidence or cannot attend? There should be a statement on oath by some person in authority or responsibility before any such evidence as this is taken into consideration.

The second part of this order deals with statements made by accused persons and is not so drastic as the part of the order to which I have referred. To depart from the ordinary rule of evidence that the statement of one accused person against another person is not evidence against the other person, except in cases of conspiracy, and then only when done in furtherance of acts in connection with the common design, the subject of the conspiracy, is not so drastic as the other provision, although it is drastic enough, if I were to analyse it further. I think I ought to have satisfied the House that the provisions of the first part of the order as to the admissibility of statements will require very serious justification indeed and will require from the Minister for Justice or the Government some indication as to why some other safeguards ought not to be put in, even in an amending order, if the order is required for other reasons and can be justified on other grounds.

That, however, is not the end of this story, because the provisions of clause 3 and clause 4, dealing with the admission of statements by anybody and everybody, by an accused, introduce rules of evidence, new rules of evidence doubtless, drastic rules of evidence, but clause 5 enables the special tribunal or the military court, as it is more technically called, to make up its mind that it will not be bound by rules of evidence. The clear construction of that part of the order is that if the military court is entitled to hold that it is not bound by any rule of evidence, it is entitled to hold that it is bound by no rule of evidence and entitled to hold that it is not bound by clauses 3 and 4 of this order. These clauses provide certain conditions—very meagre conditions—under which even statements which are admissible by virtue of these provisions can be accepted by the military court. Clause 3 provides, in the first place, that it must be a statement relevant to the offence—every student of law knows the smack of that phrase "relevant to the offence"—and secondly, that "such statement was made voluntarily, was lawfully taken down under any enactment, was taken down in writing and was acknowledged by the person who made it, and the prosecution at any stage elects to read such statement as evidence."

Those would look on their face to be some safeguards. Actually, under clause 2, the military court can say: "There is a rule of evidence. We are entitled to abrogate any rule of evidence. We are entitled to abrogate that rule of evidence. You need not bother about proving that this was made voluntarily. Put it in without proving that it was made voluntarily." You have the position, therefore, that it is possible and conceivable that a statement which was extracted by force, threat, inducement or promise can be put in evidence without any evidence being given, or any suggestion made to the court, that that statement was properly obtained by some person whose duty or right it was to obtain it. Each of the provisions in clauses 3 and 4 can be abrogated by the military court itself so that there was no necessity for them.

This order, in effect, is clause 5. Clause 5 of this order, in effect, means this: that although the rule in pretty well every system of jurisprudence, certainly in our jurisprudence and in the British system of jurisprudence dating back to the Roman law, the principle applied that "he who asserts must prove" is completely abrogated, or may be completely abrogated by this order. An accused person may find himself in the position in which it is asserted that he is guilty of murder, guilty of treason or guilty of common assault, and he must prove the negative: that he is not guilty of murder, treason or common assault, and if he does not prove that negative, without a single tittle of evidence being adduced on behalf of the person prosecuting him, he can be condemned to death and suffer death. It is believed that this order is confined, or ought to be confined, to cases where witnesses have made statements and have gone back on their statements. One would think, by this order having come out, that the fact of persons going back upon their statements and on their depositions before district justices was a new occurrence. It is as common in our courts as perjury is common, unfortunately, and although in many cases—I suppose in numerous cases every year in every one of our criminal courts—witnesses go back on their statements and depositions, the whole machinery of the criminal law is not set aside in order to meet these particular cases because it is recognised they are exceptional cases: that in the ordinary case it is right that the ordinary rules, sanctified by antiquity and with their force and effect sanctified also in favour of innocence being proved in hundreds and thousands of cases in our courts and in courts abroad, should be let have their usual and proper run.

But here, I am afraid, there is only one conclusion I can come to, and I hesitate to come to that conclusion. I certainly will not come to it until I hear the Government case. It would look prima facie at all events that there is only one conclusion I can come to, and that is that this particular order was framed, drafted and put into effect under the drastic provisions of the Emergency Powers Act because in a particular case, or series of cases, justice appeared to have been cheated of its prey. Now, I have had some experience, over a period of nearly ten years, of prosecutions in criminal courts. I have listened again and again, and I have read in books, where police officers and people in charge of the investigation and conduct of criminal cases have said: “We know A. B. is guilty but we cannot prove it.” There are many such cases. We know that many crimes in this State, and in every State, go unpunished for want of legal proof. But I have also had this experience. Police officers, high police officers, have come to me in certain cases when I occupied a position of authority in this country, and, producing serious charges against well-known citizens, said: “We know that to be true but cannot prove it.” I knew the contrary to be true, and had sense enough at the time to know that it was a matter in which we ought to go very warily and very cautiously. I was satisfied with the zeal, the honesty and integrity of the officers in question in those cases: that they were convinced in their hearts and in their consciences that the particular persons whom I was asked to prosecute, even at the risk of an acquittal, were guilty of the charges they were putting forward against them. In view of my experiences of actual cases where innocent men might perhaps have got their verdict of not guilty but have stood in open court with the obloquy of a criminal charge hanging over them because zealous, efficient police officers were satisfied in their minds that they were guilty but could not prove it, I am hesitant about this order. I had strong, solid reasons to believe, however much those police officers believed that in a particular case, that they were wrong and that the persons concerned were, in fact, innocent.

Is it not easy, therefore, to envisage zealous police officers anxious to put down crimes which menace the safety of this State going to the Attorney-General and saying: "We believe this man to be guilty but, unfortunately, we have not legal proof. We think this, that and the other," and this, that and the other will be told perhaps in secret before a military court, but certainly contrary to the rules of evidence, so that a person the police believe to be guilty may, in fact, be quite innocent of the charge. Every person knows the grave dangers that arise in dealing with circumstantial evidence, and of how many innocent people have lost their lives and liberties by being convicted on circumstantial evidence.

Is there not a very much more serious risk of innocent persons being convicted and perhaps sentenced to death by zealous, efficient and conscientious police officers? I fear the police official who is out to get a conviction, and there are many of them, I am sorry to say, even at the present time. We have all come across them in our experience. There are many of them who will extract a statement at all costs. I fear them, but I have nothing but contempt for them. But, in connection with these provisions, the man I fear most is the conscientious, truthful, efficient, zealous police officer who will convince himself on hearsay evidence that a person is guilty of a crime, and who will go all out, as any advocate will go all out, to secure a conviction in a case where he conscientiously believes that it is his duty to the force and to the Government of the State to secure a conviction. That is the person who is most seriously to be guarded against, the man who is doing his duty as he sees it. Nothing can be said against him. Because of the very fact that these police officers—and there are far more of them than the ones I have referred to in the Guards even at the present time—are known to the officers who will man those military courts to be above reproach, they will undoubtedly—they would not be human if they did not—believe the efficient, zealous and scrupulous police officer who says that by hearsay or by other means that he had at his disposal to get information as a member of the Guards, he is convinced the man is guilty, but he cannot prove it by legal methods.

That man has not a chance in a million. He may be innocent, but there are no safeguards for him in this. The only safeguard is the review by the Government. If the Military Tribunal is affected by considerations such as I have adverted to, will the Government, whose officer is in question, not be still more inclined to say: "Well, chief superintendent so-and-so, or Gárda so-and-so, is a man whose word can be taken by anybody, is above reproach and why should we turn him down?" But he is human and he may be wrong. Hearsay evidence has been excluded in our system of jurisprudence because of the fallibility of human testimony, because of the changes that take place by the narration of a particular fact from one person to another. It is a well-known fact that every story changes in its telling. Hearsay evidence had been excluded because, although on some occasions it may lead to eliciting the truth, there is a grave danger that it may, in fact, do the contrary.

The only justification for this order would be a justification founded upon the Long Title of the Act under which the order is made. That Act is the Emergency Powers (Amendment No. 2) Act, 1940, an Act which has as its Long Title: "An Act to amend and extend the Emergency Powers Act for the purpose of making better provision for securing the public safety and the preservation of the State in time of war." I await the case of the Government; I await the evidence, not merely the arguments, and the facts which will be adduced by the Government spokesmen to demonstrate that this order is essential, is required for the purpose of making better provision for securing public safety or for the preservation of the State in a time of war. I await the case that will be made by the Government to dissipate the conception that may very easily arise, and has arisen on this order—that it is merely an attempt by the Government to throw a cloak of spurious legality around an executive act.

I await the case of the Government to show that there is some organisation in this country that is menacing either the public safety or the public peace. Must we mention the I.R.A.? Must we mention them in association with an external State, or without association with an external State? We need not tread as if we were on hot bricks in speaking about an external State when we are talking on this matter. Is that the case for the justification of this order? Is it the I.R.A.? Are they in such a state of strength, are they making preparations for such a conspiracy as will seriously menace the very foundations of the Government and of the State? If so, let the case be made by the Government, as it was made by Deputy Cosgrave, when he was President, in 1931 and was introducing Article 2A of the Constitution.

If I find a cogent case is made by the Government showing there is no other way of preserving the public peace or the safety of the State than drastic provisions of this kind, then I will say that Deputies might properly and conscientiously vote for the continuance of the validity of this order; but, if there is a case to be made, that case should be defined and confined to the scope of this order, and should be limited to the particular problem which the Government have to face. If it is the I.R.A., then name the I.R.A. in the order; it is not beyond the ingenuity of the draftsman to make such an order. As this stands, any person guilty of a common assault can be brought before the Military Tribunal, tried and sentenced to death without evidence. Why not confine the scope of this order? Having made it clear that it is essential for the preservation of the public peace and of the State, why not confine it to the particular problem that is to be dealt with and then see if there is any method short of dispensing with every single bit of proof in a capital case that can be resorted to?

In 1939 when the Government asked for wide powers, powers of a kind that never before had been vested in an Irish Government, to deal with the emergency with which they were confronted for the first time, we felt gravely doubtful as to the advisability of entrusting the Government with these powers. We expressed our doubt and hesitation, but notwithstanding our doubt and difficulty and hesitation we gave those powers to the Government. We took the view that we were here as an Opposition with responsibility to the people. The people had elected, by a majority, the present Government and for good or ill—we never concealed the fact that it was for ill that they were elected—they were the Government and they were entitled to the powers they required, and we gave those powers to them. Anything that has happened since has not justified our confidence in the exercise of those powers by the Government. We have had occasion to complain, and we felt that they far exceeded their powers, but even though that is our view, we still hold that if the Government make their case, while they are the Government they are entitled to get the powers they require to deal with any menace to the public safety or to the safety of the State.

Since the earliest times when States were organised and when they undertook the administration of justice, that administration of justice has been vitiated very largely by the cry that the administration of justice must be tempered by the safety of the State. Salus populi suprema lex has been a useful weapon in the hands of statesmen. L'êtat c'est moi—the State is myself. There is a tendency for every Government to regard itself as the State. That may be the view of the present Government. Instead of the public safety being involved, or the safety of the State being menaced, it is really the political prestige of the Government that is being menaced.

If the Government make the case by cogent argument and conclusive evidence that the State is being menaced or that the public safety is being so jeopardised that there is no other way of dealing with the situation than by drastic methods of this kind, then my vote will go for this order; but if they do not prove their case to the hilt, I could not conscientiously walk into the Government Lobby against this motion. I wish to make it finally clear that the views I have expressed are my own personal views, and that I have endeavoured to speak as far as possible with restraint on this matter, and I shall reserve judgment until I hear the Minister for Justice.

I think that if there is one charge that can be made against the Government —and it has been made often—it is that we have been too lenient and have allowed things to go on with which we should, perhaps, have dealt far more seriously. Now, we are up against a very dangerous situation. I have information, which I am sure I could not get any court to accept as evidence, that this organisation with which we are dealing is doing things that merit very severe punishment, and the most we can do with some of these people is to intern them. Information can come into the possession of the Government, where proof cannot be got—information on which we might be well satisfied that there was a case. As far as this particular order is concerned it is dealing with an internal situation. There was a reference to whether this organisation, with which we are dealing, has attempted to bring outsiders into this country. I could not prove that in court, but I can tell the House that it is a fact. I am perfectly satisfied that it is a fact, and I am saying that with full knowledge of what I am saying; so that that certainly brings that organisation into that category, and there are a few other organisations not quite so bad, but on the borderline, that we are watching very closely because they are interfering with things with which they should not interfere, and I can assure the House that they will be dealt with if they do not take care of themselves. They are not represented in this House; they are organisations outside this House, who think that they have the right to interfere in matters that they should not interfere with. This, however, is purely dealing with an internal situation.

We were asked to say whether this was dealing with a particular case. I am not going to say that it was or is, but I do say that it is intended to deal with a particular type of case, and it only refers—and I emphasise this—to cases brought before the military court. The only cases that can be brought before that court are set out in a certain schedule. There are ten different types of crimes set out in that schedule, and only these cases can be brought before the military court. I think every Deputy knows that all these crimes are organised crimes, and that they are not ordinary crimes which, in ordinary cases, could be dealt with by the ordinary courts of the country. Ordinary cases that can be dealt with by the ordinary courts will be dealt with by the ordinary courts according to the usual procedure, but these are cases of organised crimes. Moreover, as far as I know, the setting-up of this military court has never been challenged. Notwithstanding what Deputy Norton said here to-day, I do not think he ever challenged it. I thought that it was understood to be absolutely necessary, and I am sorry to say that it is necessary. We had a Special Criminal Court, but we found that it was not sufficient, and the House, as far as I know, never challenged the setting-up of this military court.

Now, with regard to the court itself, everyone knows that the members of that court are very experienced men. They are not legal men, but they are men of great experience and, I think, they are the same personnel, almost entirely, as were in the courts set up under the Constitution (Amendment) Act. They are men with great experience, and I think all the citizens will agree that the way they have conducted the court, the way its personnel have behaved since it was set up, has given them the entire confidence of the country—that is my belief, at any rate —and I think Deputy Costello should know that it is not necessary to lay down in this order itself all the things that he has mentioned. If a witness is absent, surely the court will want to know why he is not present. They are not going to behave as inexperienced people who simply know nothing about cases at all. They are not going to deal with things in an abstract way either. They know exactly what they are dealing with and they are going to ask the prosecution: "Where is your witness?" and I am sure they will do that. I do not think there is any necessity to lay down all these safeguards that Deputy Costello has suggested.

The order, as I say, is absolutely necessary if we are to put down organised crime and, particularly, organised murder. I am saying that with the full conviction of the seriousness of what I am saying. We must have this, and I say that it is far more important to this State that no organisation shall get away with organised murder than that the laws of evidence, which, as Deputy Costello said, are hoary with antiquity, should be preserved as they are to-day. It is far more important, and I think Deputy Costello will admit that those laws of evidence, which were drawn up in England, were drawn up to deal with a set of circumstances that were entirely different from what we have in this country to-day.

I admit nothing of the sort.

Mr. Boland

Well, whether the Deputy admits it or not, I say that that is the case. I suppose it is too much to expect a lawyer to admit anything like that, but I say it, and I believe that in saying it I shall have the support of every plain man in this country. I say it is far more important for us to see that organised murder does not exist in this country than that we should have these laws of evidence preserved as they have come down to us from Britain. I am not a lawyer, as you are all aware, but I have been inquiring into the origin of these rules of evidence, and I find that they were judge-made rules and very largely a reaction from the judicial cruelty that existed a couple of centuries ago where the accused got very little chance and everything was weighted against him. The tendency has been to go entirely in the other direction, and I say, of course, that it is very good to have it that way and that in ordinary cases the accused person should get the benefit, but I say that when it comes to a case of organised crime, where it is very difficult to get witnesses to give evidence —and we all know the situation and the terrorism that exists—we must make provision for having a full investigation into all the circumstances surrounding these crimes. We must do it. Trial by jury was a thing that was highly treasured in this country, but even though we opposed the previous Government's action in that regard ten years ago, I do not mind admitting now that the previous Government was justified although we thought at the time that if milder methods had been tried such action might not have been necessary. We have tried milder methods, and although trial by jury was done away with then, I think nobody is asking for it now, and for very obvious reasons. You will not get a juryman to give a verdict in accordance with the evidence, for a very good reason, and, in the circumstances, I do not think we should ask him to do so. The same applies to witnesses. Even when they make a statement in front of a Peace Commissioner, they will not go on with it in court; they will neither deny it nor affirm it, and simply remain mute. Are we to allow crimes to go uninvestigated, are we to allow people to laugh at us and say: "We will kill whom we like"? I will not stand for that, and the Government will not stand for it, but that is the situation we are up against. That is the internal situation.

I have a document here which bears somewhat on that situation. This is a leaflet that was seized by the police in Tipperary. It was being handed around and they got some bundles of it. It is not signed by anybody, but the police know that it was handed out by members of this organisation. It is as follows:

"Competent Military Authority, South Tipperary Brigade, I.R.A.

Whereas it has come to our knowledge that enemy forces have learned of the movements of Republican troops within this area, we hereby issue this warning that anyone, man or woman, found guilty of giving information to the enemy, or of in any way helping or trying to help the enemy, will be shot. Furthermore, we warn loyal citizens to make absolutely no reference to Republican Army movements, and idle gossip is as dangerous to military success as enemy spying and will in future be treated as such. Anyone in public or private gatherings of any kind discussing I.R.A. movements does so at his or her own peril."

What is the date of that?

Mr. Boland

It is not dated. It was got quite recently—within the last five or six weeks.

Even the printer's name is not on it.

Mr. Boland

They may not do what they say there, but I think a witness could be excused for believing that it might happen. We have tried to grapple with this organisation. I think Deputy Norton said we were doing pretty well in that way. We are not doing as well as we would like to do. They are very dangerous still. They are not quite as numerous, but they are certainly very dangerous, and their power is very far-reaching. If we bring up a case, and witnesses who have told the Guards that they intend to give evidence, and who have signed and acknowledged a statement, simply stand mutely in the witness box, and consequently we have to let the case go untried, I am quite satisfied that this campaign of murder is going to continue. The Government is also satisfied of that. I do not think the powers here are very drastic at all. We are not asking that the court should accept those statements as conclusive evidence. We are simply asking that the court should be allowed to take cognisance of those statements and judge them for what they are worth. Deputy Costello spoke of a zealous police officer. He must not forget that when he went out of office another Attorney-General was appointed. There is an Attorney-General there now, and he is not going to allow people to put forward hearsay evidence. He is just as conscientious an Attorney-General as Deputy Costello was.

I think he is more conscientious.

Mr. Boland

Well, he may be, but he is certainly at least as conscientious, and he is not going to put before that court any cases which he is satisfied should not go before it. Deputy Costello may rest assured of that. I know that most of the police officers are very zealous, but they are not anxious to bring up cases that they may not be able to prove. I would emphasise that it is intended to deal only with organised crime, and only crimes of the type laid down in this schedule, and it is only before the military court that this order will be operative. I would also remind Deputies that no case can go before that military court unless the Government so decides. It must be done by order of the Government. Whether that is considered a safeguard or not I do not know, but I think it is. No person can be sent for trial before that court except by decision of the Government, so I think there is every safeguard there. As to the order itself, I am not a lawyer but I have ordinary common sense, and can look on the matter as a layman and as an ordinary citizen, and I believe—I think the majority of the people outside the legal fraternity would agree—that it is of the utmost importance that, where a person who commits a serious crime might escape merely because there is a certain rule there which prevents evidence of the greatest importance being brought before the court, such evidence should be admitted under the circumstances set down here, that is to say:

"Where it is proved that a statement, relevant to such offence, has been made (whether before or after the making of this order) by any person, not being the accused person or any of the accused persons, and that such statement either was made voluntarily...."

Deputy Costello said that under Article 5 a statement might be extracted by the police. If you stretch that, I daresay he is right there, but there is no fear in the world of that. My experience of the police is that they have been more than fair. It is laid down specifically in this Article that it must be voluntary, but Deputy Costello has raised that point, and I agree with him that it is possible, but most unlikely, that under Article 5 it may not be a voluntary statement. It is laid down very definitely that it must be a voluntary statement, or a statement taken under any enactment, a statement taken down in writing and acknowledged by the person who made it. Those are the three conditions. I would say that they will be insisted upon by the court, and that the court will not go outside them, although there may be power under Article 5. Article'5 does give a wider power, but, as was pointed out by the Chief Justice, it can be used by the defence. There are two articles specifically giving power to the prosecution to read those statements, but, as was pointed out by the Chief Justice and as I meant to say too, a court which is a fair and competent court can use that section to admit statements by the defence. It gives very wide powers undoubtedly, but I am satisfied that we want wide powers. We want very wide powers to deal with this organisation and this type of crime with which we have to deal. Deputy Costello requires evidence that they are necessary. A lot of those crimes have been dealt with by the courts, and evidence has been available, but a good many have not been dealt with. We had an explosion in Dublin Castle some time ago, when ten or 12 detective officers—I am not quite sure of the number—were in the building. Great damage was done, and all those officers might have been killed. We could not catch anyone. In that case we had no information whatever as to what happened.

This is not a case of putting salt on a bird's tail?

Mr. Boland

I was asked by Deputy Costello to show that there was a state of affairs in the country which would warrant this order. There were other very serious cases. There was one case of attempted murder, where a man was left for dead on the roadway— fortunately he did not die, but those who shot him thought he was dead— and the police got a very full statement about the matter, but, according to the rules of evidence, no use whatever could be made of it. It was quite a voluntary statement, but no use could be made of it because the person was not prepared to go the whole way and give evidence in court, for very obvious reasons. Deputy Costello said he knew of several of those cases in his time, and I would say that, on the whole, you could allow guilty people to escape for an ordinary crime rather than run the risk of innocent people being found guilty, but I submit that organised crime is quite a different matter, when people who are prepared to come and give information to the police privately are afraid of their lives to appear in court. I myself know of at least a couple of cases of that kind. The police know several of them. They tried to get evidence, but the thing was so well organised that they found it impossible in a good many cases. I certainly have recommended to the Government, and am very glad that the Government have agreed, to give this power to the court to deal with those cases as they think fit. It may be said by the defence that the statement is not worth the paper it is written on. The court may say: "We think it of no value," and throw it out. We are not compelling the court to accept it. It is a matter entirely for the court itself. We are not saying: "You must accept that as a true statement." We are simply saying: "Here is a statement made under those conditions." It will be for the court to decide what value to put on it. That is not a very drastic thing to do. I do not think so. It is of the utmost importance to every one of us, to the whole State, that the people who are carrying on this campaign should be made aware that they will not be allowed to get away with it and that, if it does mean changing the rules of evidence in cases like this, we will not hesitate to do it. I will go further and say that, if this does not succeed, and if other and stronger powers are necessary, I will urge the Government to come to the House and look for those powers. If we are opposed, we will have to take the opposition and face it and, if we are beaten, let somebody else take on the job of tackling this organisation. That is what it means. We have to stop it; we have to throttle this thing and put it down. We are fairly well on the way to do it, and we will not be stopped if we are to be the Government. That is the attitude the Government are taking. We will not tolerate this thing any longer.

The powers we ask for are reasonable powers that any ordinary commonsense citizen will not refuse to give us. Lawyers, of course, are bred up in this tradition of rules and regulations, and I do believe that is more important to them than suppression of crime. If they get a man out of a case, they crow over that, and I think even more so if they knew he was guilty. That is all very well in ordinary cases, but we cannot afford it in these cases. People would be very much inclined to get very uneasy if they thought clever lawyers were able to get members of this organisation, who have committed very serious crimes, acquitted on what most of us believe, anyway, are technical rules, rules designed to deal with an entirely different set of circumstances; designed to deal with circumstances such as there are in England, where practically everybody helps the police; where they all feel that it is in the public interest to help the police in the investigation of crime. Here, unfortunately, we have a different tradition, for historical reasons which we all know. What may suit very well in England may not suit here. Anyway, we are not interfering with the ordinary courts; we are not attempting to do it. We are doing it in this case.

I really must say that I am astonished at the opposition there is to this. I am not much astonished at Deputy Norton, because he thinks he is on a bit of a popular wave. But I will be very much astonished if there is opposition from the other benches. I think the powers asked for are not a bit drastic. They are simply to ensure that the full circumstances surrounding these organised crimes, which are of such a nature that they have to be sent to the military court, will be before the court and that the court may take whatever action they like on them. I want to emphasise that, because I think Deputy Norton suggested that we were telling the court that they must convict them. I am almost certain he said that they were there to convict rather than to try the case. He said that they were not to try the prisoner but to sentence him to death. That is not so at all. We do not want to have any innocent man found guilty. We are satisfied that the court will not find him guilty. But we do want to have those cases fully investigated. It has not been possible under the existing rule of evidence to have them investigated. Therefore, this order is absolutely and entirely necessary. I certainly hope the House will approve of it, because the situation that it is designed to deal with is such that these powers, and maybe more, will be necessary. If we are to be beaten on this, whoever takes on the job of dealing with it may want more drastic powers. I do not know whether I have satisfied Deputy Costello or not.

The Minister said in the opening of his statement that this organisation was not only engaged in organised domestic crime but concerned to bring outsiders into this country; and that there were other organisations who might also be similarly charged. Will the Minister tell us what he means by that?

Mr. Boland

I will say, for one thing, that we are all well aware that one organisation did actually declare war in the name of the Irish people. They pretended to have a Government of their own and the right to declare war. There are other people who have been negotiating with outsiders. I am not prepared to say any more about it because, as I said, they are not as much committed as those other people are. But they are being closely watched. They are on the border line. I will not say any more. That may be mysterious. Perhaps I should not have mentioned it. But I say that there are organisations which have to be closely watched from the external point of view in order that we may preserve our neutrality and the peace of the country.

"Twenty years after!" The House will agree that one of the saddest things we, as Irishmen and Christians, have to face, is that the Government feel it necessary, in the performance of their duty, in their efforts to preserve order and get respect for the law, and in the effort to save the lives of the ordinary citizens of this country, to introduce drastic legislation of this kind. After twenty years of self-government, I say that that is not a thing of which we, as Irishmen or as Christians, have any right to be proud. Since the setting up of this State, I wonder how many years there were in which legislation of this kind has not been advocated and has not been found necessary. It is a terrible indictment, not of individuals but of the whole people of this country. However great the self-complacency which we often have, that is a fact which ought to stick in our minds and influence our conduct in the future. I should be quite willing to admit to the Minister, and I think we can claim that again and again we urged upon the Government, that the ordinary procedure and the ordinary methods of dealing with ordinary crime were not sufficient to deal with the situation that often arises in this country.

Quite rightly the Minister pointed out that the methods and the rules of the courts and the types of court set up in England may, unfortunately, be no guide to us in the decisions that we have to take in this House on this all-important question of order. But, again, I say that the fact that we seem to have made no advance towards reaching a position of that kind is a thing of which we as a nation ought to be thoroughly ashamed. It is an appalling situation that year after year, sometimes six months after six months, the responsible Government of this country have to come down to the House and tell us that a situation exists that cannot be even remotely dealt with by the ordinary law. So far as we can judge, little permanent improvement is being effected in that direction. We may improve from time to time. For the moment we may seem to get control of those evil forces. But, again, when there is any slackness, when stringent powers are cut down, the evil seems to break out all the stronger and more powers are asked for.

There is one particular portion of the Minister's speech that I confess perturbed me: that is when he said that this was not drastic. I have rarely found myself in a position more difficult than the present one. I have really found it very difficult in the past week or ten days to make up my mind what my duty was in this particular matter. I know that a large number of other Deputies are in the same position. Strong as their desire is to support the Government and give them every help, their consciences will not allow them to vote for this order. Perhaps my own conscience is not quite so delicate as their consciences are, but I fully respect that feeling. We, on this side, approach this measure without the slightest degree of party feeling. If I were to follow my instincts, I should have no hesitation in going into the Lobby with the Government. My reason often points in an opposite direction. When I came into this House, I was prepared to follow my instincts. I am still prepared to do so, but I ask the Minister to get out of his mind the idea that this is purely a matter which disturbs lawyers. It does disturb lawyers, because they are acquainted with the administration of justice, in their experience from day to day, and see more clearly than the Minister sees or than I see the grave dangers inherent in this order.

I confess that I was disturbed when the Minister, in his statement, threw lightly aside the grave personal and conscientious objections that men like Deputy Costello and others have. The desire of everybody on these benches is to give the Government power, often without investigating very carefully the case made, to deal with organised crime. I think the Minister knows that. We have not changed in the slightest. If I may speak for myself, as Deputy Costello spoke for himself, I must confess that I have found my position difficult. All my sympathies are with the Minister in trying to cope with this organisation and with this organised crime, as I know he is trying to cope with them. Having listened to his speech, I do not say that I have come to a different view, but he has certainly shaken my conviction. It will not do to take up the line in this House which has so often been urged upon us: "You appointed the Government and you must trust it." That is not the business of a legislature. If that plea is made, then the only logical conclusion in a crisis like the present is to scrap the Parliament and all laws and let the Government do what it thinks fit. I do not say that you could not make a case for that in certain circumstances. But it will not do to take up the line: "We are responsible and you must give us unlimited powers and trust us not to abuse them." You cannot take up the line either that a court will always behave in a reasonable fashion. What has perturbed a number of people on this side whose views do not fully agree with mine is that this order may easily lead to the conviction of innocent men. I know that members have a conscientious difficulty, on this account, in giving the support they would like to give to the Government in this matter.

This House, and particularly this side of the House, has never asked the Minister to slow down in dealing with crime of this kind, though we find it somewhat difficult at times to follow the methods used by the Government. They seem to me-perhaps the Minister would sometimes agree with me— to deal with symptoms rather than the source of the crime. I find it difficult to understand why people who carry out orders to murder are put on trial, while the heads of the organisation who order them to commit the crime are not dealt with. I am in favour, as everybody on these benches is in favour, of giving the Government all the power they require, but there are a number of people-not all lawyers— who have difficulties in the present case. The whole legal fraternity, irrespective of the political views they hold, seem to be outraged by this order. I am willing to admit that the ordinary law seems to be so framed as to make it easy for a criminal to escape and to make the protection of the decent citizens difficult. Therein I am in favour of the Minister's view, that some modification of the ordinary law is necessary. But here there are certain rights given to the tribunal which seem to me to go beyond what is necessary, even on the Minister's case. I was disappointed by the Minister's refusal—I can hardly believe it was his failure-to understand how seriously this issue affects the minds of a number of Deputies who have to cast their votes on it. They feel that, by giving their votes, they may be taking the first step in sentencing a number of innocent people to death. We have here a powerful organisation which prevents evidence being given. I do not deny that. I was not in a Government for nothing, and I do not forget these things. But will not that same organisation prevent statements being made against guilty people while not preventing statements being made against innocent people? That is the danger. Unless safeguards are inserted in this order, the Minister may find that as many innocent people will come under its lash as guilty people.

I do not take the line which some people take, that this order is against the natural law. I do not believe it is, but it goes very, very far towards violating the sense of justice that has grown up amongst the people, and towards shaking their confidence in the administration of that justice. Although, according to the abstract natural law, it might be possible to take certain rights from people, in the concrete it might be very unjust. This is not purely a provision of the English law. The Minister was asked by Deputy Norton whether such a rule of evidence prevails in other countries. If there are such cases, I think he could have found them in the meantime. I know that there has been uneasiness in some countries because of the feeling that the law was too lenient to criminals. Let us take, however, Canon Law to which we must accord respect. You cannot hold that Canon Law was based on English law.

It has been argued that the Common Law was very closely associated with Canon Law.

My point is made. I am quite willing to accept the Minister's assistance.

I should correct that statement by saying that I was referring to pre-Reformation Common Law.

And the rules of evidence have come in since then? Canon Law makes a distinction between a statement made by an accused party and a statement made by a third party. A private document can be used under Canon Law against the person who composed it, but has no probative force against a third party. I do not say that you are bound to follow that rule, but it does suggest that the rule of evidence we are discussing is not purely an innovation. This rule of evidence of the Canon Law is an effort to provide for the proper functioning of the ecclesiastical courts, and at all events it makes a clear distinction between a statement by an accused party and by a third party.

It is a scandalous state of affairs that witnesses should be afraid to give evidence. We must admit the point made by the Minister in that connection. He spoke of an organisation that tried to bring outside forces into the country. How is that crime being dealt with? Here is an order made under an Act which has a distinct reference to a time of war. I think that that should be connected with the actual fact of war. The Minister did not make a sufficiently strong case to convince a person being told of the position for the first time. But I am myself convinced, and therefore I am still prepared to give my vote to the Government, despite the weak case made here. I think that the situation is extremely dangerous, and I think that, even more than in time of peace—though it should be drastically dealt with then also— the existence of an organisation of this kind is an additional danger. I do not think that the members of the Government disagree with me in that, but the Minister himself has not given us much evidence of the breakdown of law. I am convinced of the real danger in which this country is at present, but, judging by some speeches I have read recently, I wonder whether the Government always realise that danger. Because I am convinced of the danger, I am prepared to go a long way in giving the Government power to deal with an organisation of the kind mentioned.

If the Government want to do something, there is no reason why they should abrogate all authority. I do not see why the Minister should not go through the different sections of this order and see that proper safeguards are inserted. Why should there not be more formality to be observed in the making of a statement which can be introduced as evidence? With all my desire to support the Government, I do feel a bit outraged by the position. If two men meet in a publichouse and one makes a statement about the Minister for Justice, the other may take it down, ask his friend if he made the statement and, if he acknowledges it, that statement may be put in evidence. That is an outrageous position, when the law could be limited by reasonable amendments. I thought that Deputy Costello's speech, as well as being remarkably able was a calm and reasonable presentation of his case, and I do not think there was anything in it to which the Minister could take exception. If I had not been convinced of the danger that exists, I do not think that the statement of the Minister would have convinced me. In the present crisis, I cannot take upon myself the responsibility of voting against the Government, but I am entitled to ask that the Government regard the objections made from this side of the House with full seriousness. If only to ease the consciences of a number of Deputies, I would ask the Government to introduce a number of limitations into this order the better to safeguard, not criminals, but innocent people. That is a very reasonable request and I am surprised and disappointed that the Minister for Justice treated the matter so lightly. If he knew the feelings of Deputies— the feelings of people whose instinct is to support the Government and whose sole criticism would be that they have not been sufficiently strong in dealing with these matters—I do not think he would have treated the matter so lightly. They are upset by the actual terms of the order.

I think the Minister if he exercises his mind and the mind of the Government can make this order much less objectionable. That is a reasonable request. I hope the Minister for Justice may be able to indicate before the close of the debate not precisely what he intends to do, but that he will see whether sufficient safeguards are introduced to meet reasonable objections, and will not treat this matter cavalierly or with that pose of simplicity, which is sometimes most effective in the House, and that he so often gets away with. The conscience of a number of people is affected. I ask the Minister to believe that. I have discussed the matter with these people.

Furthermore, here is a danger that I do not think the Minister has quite envisaged. I can understand a case coming before the tribunal in a month's time, in which the court would be very careful to exact every type of guarantee, but I can equally see, if that is continued month after month, and is applied to case after case, that the court may easily get into a slipshod fashion and take any evidence presented to it. That is the danger. It is not a theoretical danger. It is a danger which has occurred in other countries where the tribunal and the prosecution got on such friendly terms that the man who was accused was assumed guilty and with little formality found guilty. What you say now will be done by the court in the beginning, but I am afraid that as time goes on there will be slackness. I ask the Minister to guard against that, and for that reason to put in a time limit. These are dangers that I do not think the Minister, in his very laudable desire to suppress crime, envisaged. I have nothing but praise for the efforts to deal with these organisations, but these are dangers that he has not clearly envisaged. They are dangers that were clearly indicated by Deputy Costello, who gave factual examples.

As far as this question is concerned there is no breath of Party feeling of any kind on this side. We are anxious —possibly more anxious—that the Government should have these powers so long as they are used successfully. I do not think any Minister could get up and say that this House is not anxious to put down crime of that kind. If there are Deputies who will pronounce their sense of outrage at this order I ask the House to take it as a sincere expression of opinion, and something that ought to be taken into account.

In the long run it is not merely their view; it is the conscience of the nation that may be heard. Nothing should be done that would in any way discredit any of our institutions. There are numbers of people in this country, some of whom are making appeals to force, and others making appeals rather to cheap cynicism who are only too anxious to befoul our institutions and traduce them. I do not want anything that this Parliament or anything that this Government sponsors to enable that to be done. As one who, unless there is some extraordinary manifestation on the part of the Government, intends not to support this motion, I ask the Government to take that plea into consideration. I make it in all seriousness. It is because I was anxious that that plea should come before the Government that I intervened so early in this debate. Again I put it to the Minister that there should be an effort to deal not with the symptoms but first get at the cause. There are people outside. They see the two dealt with in different ways. They look in vain for some other action. It is necessary to attack the root.

The safety of the State is, I admit, excellent basis for law, but there are limitations to what you can do. Your legislation must be justified by circumstances, but you are not to take it if less drastic legislation will equally suit. You are not entitled to have a sweeping thing of this kind, when it can, without undue weakening, be amended. My last word would be to plead as strongly as I can in the interests of law and order and in respect for our institutions for two things, that is an amendment of this order by putting in reasonable safeguards, and by fixing a time limit, because I think the danger of doing things on the nod of familiarity may lead to greater abuses.

I want to say that the Government welcomes this opportunity of dealing with a motion of this kind, and I would like at the very outset to disabuse anyone of the idea that we are taking this matter lightly. That is not true. As a matter of fact, before the Government made the order we considered it for a considerable time, and fully realised the extent to which a certain innovation was being made and the dangers attaching to it. In regard to this matter there has been a question of a strictly legal type brought up. We are saved discussion here very largely because we have had an authoritative decision on what I might call the right of the Government to make an order like this, and the legality of this order. That has been decided in the proper place, and decided in an authoritative way that should settle the question as far as our legal right to do it is concerned. There was another side, and very properly the Chief Justice's reference has been mentioned. There is what I might call the broader question—not the question of our legal right to do this, but the advisability of doing it. It was the question as to what extent public opinion was being served by doing it. We welcome the motion here and the opportunity it gave calmly and quietly to discuss this whole matter. In fact, we have to prove our case, not merely as proved in the High Court, but we have to prove it so to speak before the Legislature, to which we are responsible, and also before what I might call the court of public opinion. I have always held that it is most important in matters of this sort—and it can be proved that I have been absolutely consistent—that the greatest help towards the maintenance of proper conditions here is a right public attitude on the part of the Government in its actions and on the part of the public at large. It is vital, if drastic-measures, or what appear to be drastic measures, are taken, that the public should see exactly the extent of these measures and the necessity for them.

In regard to this particular matter, let us see exactly what we are doing, and let us criticise, not from the point of view of what we are not doing, but what people suggest we are doing but are not doing. On that account I must say that Deputy Norton's speech was anything but helpful, because it was suggesting that things are being done which are not being done, and which could not be done. There is a court to examine into any evidence put forward. Is not that clear? What is being done really in this particular case is, making it possible for that court to take into consideration evidence which the rules of evidence, as they are at present accepted, would not permit to be taken into account.

We are concerned here with the question of circumstantial evidence really. That is the basis of this order. In the case of trials for murder we have to consider—not merely we here, but others elsewhere—the nature and the circumstances of the crime. It may be committed in secret and if you are ever going to bring the culprits to justice, you frequently have to depend on what is called circumstantial evidence. The whole of the situation, anything that can be shown by the prosecuting counsel, is put forward and the whole facts of the case have to be interrelated in such a way that all the circumstances point irresistibly to the conclusion that the accused person is guilty. I am not a lawyer and I am only taking what I regard as the lay-man's view of the matter. If crimes of such a serious character are being committed that it is essential for the good of the community that the perpetrators of them should be brought to justice, clearly it is in the interests of the community that all the facts should be made available for those who are investigating them, and unless there is some exceptionally good reason nothing that appears to be relevant to the particular deed should be kept out of account.

Again, I say I am not a lawyer and I have not had time—although it would be very interesting and I would have liked to have done it—to study the methods of procedure in regard to criminal prosecutions in other countries—to study the history of the development of the laws in regard to criminal proceedings in England, for instance, the circumstances which brought them into being and the extent to which they have been from time to time altered by the Legislature or through judicial decisions. I have not had time, as I say, to do that, but I do feel, and I think it is commonsense, that the fundamental purpose of law is to regulate—again I am not attempting to give a definition—life in a community so that the community in general may be safeguarded and the rights of particular individuals may be preserved, and particularly to ensure that the lives of individuals cannot be taken by some other individual or group of individuals. The purpose of trial is to get after the perpetrator of a crime and to punish him as a deterrent to others, to make it as certain as possible that if he is guilty, he shall not escape punishment.

The certainty of the law is one of the most important questions, as I conceive it, involved in this whole matter. I do believe that the laws of a people depend on the circumstances and on the type of the particular community for which they are made. The laws in France developed according to the conditions and circumstances of the people of France. Similarly, the laws in Britain developed according to conditions there. We have found here that trial by jury, for instance, was not capable of safeguarding individuals in the community in the circumstances which we found here. Juries could be intimidated and were being intimidated by an organisation which had force behind it, and which was prepared to use force. The same intimidation was carried on against those who gave evidence, with the result that it is extremely difficult in our particular set of circumstances here to obtain evidence at all in regard to those guilty of murder. What we say here is that the body that is charged with the investigation of a crime should have the fullest possible opportunity of examining all the relevant facts that might have any bearing on the case. The only thing we have to ask ourselves is whether we should allow them to take facts into account which apparently the British rules of evidence, as we have inherited and used them, do not permit. I am not one of those who talk about lawyers as being people who can only see a set of rules and are so completely tied up with them that they lose all commonsense. I have always had a high regard for rules which have been evolved by judges and lawyers over a period for the simple reason that they have had to deal with specific cases and, in the course of their experience, they have come up against difficulties of various kinds. They have been, generally speaking, practical people who have tried to make provision to prevent mistakes.

There is no doubt that anybody looking at this question of the admissibility of documents when the author is not necessarily present before the court for cross-examination will admit that there is a danger in it. We admit it. I do admit that it is a danger. It is a thing that has to be carefully watched, and if it was a thing that was to be allowed in trial by jury, I would be far more afraid of it than I am in the present instance because it is not an easy thing to weigh up evidence in trial by jury. To sift evidence is not an easy thing, and in the case of juries it might possibly happen that they would not be fully alive to the dangers inherent in presenting documents of this sort.

I hold, however, that in the case of a court such as a military court, we have people who are much more experienced in this matter than an ordinary juror would be. They would not be as fully alive perhaps as a court of judges, but again our circumstances have prevented us from trying what would have been probably another expedient in this whole matter which I believe was suggested or considered in the time of the previous Government—that is a court of judges apart from a court of military officers. Our circumstances prevented that, and the question is whether a court of military officers who have been trying cases, is going to make the mistake of giving to a particular document a value which that document should not get. That is the question to be considered, and there is to a certain extent a risk in it. The question for us to decide is whether we should take that risk. The Government thinks we should.

I want to confess I do not like this method. I am very sorry that we are obliged to have any of these measures, but we have to face the facts as we find them. I would be quite ready to say that we are prepared to give a trial to this thing and to submit the matter at a later period again for the judgment of the House. We feel that this step is necessary at the moment, but I am open to any suggestions that this should only last for a year or, if it is felt that that is too long, for six months, perhaps. We feel, however, that we must not keep from the court any material which will enable the members of it to come to a decision as to the guilt or innocence of particular persons no matter whether or not the rules of evidence, as they have been adopted, permit that. I admit again that the rules of evidence have been evolved as the result of careful examination over a period of time, largely in the circumstances of Great Britain. These were very different from our set of circumstances, as has been admitted from the opposite benches, in the position of peace, where every individual in the community realised that it was to the interest of the community as a whole that the Executive power should be helped from evidence from the particular individuals and where jurors who were trying cases were not going to be influenced or coerced in any particular way, where they were able freely to decide and freely to give judgment, without coercion of any kind, in accordance with their consciences. We have not that. Again I say we admit that these rules have been there; that there is wisdom behind them; but apart altogether from our special circumstances and the need for us to look after our own particular problem, nobody will deny that even lawyers are not quite satisfied with all the rules of evidence as they exist at the moment. They have been changed from time to time. There are lists of changes —I did not go to the trouble of getting the lists—that have been made, of cases where documents are accepted and where it is not necessary to have the same proof behind them in the way of having persons available for cross-examination and so on. The rules of procedure or the rules of evidence, even in British law, have been changed from time to time. It is a fact that there is a number of people, lawyers and judges, who doubt them and think that they are rather hampering the executive in doing it duty in getting after crime. There was a Royal Commission in Britain recently on that particular matter and they came to the conclusion that this idea of lawyers more or less playing a game and the idea of completely weighting the dice against the community in favour of the individual was being carried too far. I think one of the things that was questioned was the advisability of the rule by which a person has to be warned in advance and they naturally ask, why should a person be warned? If a criminal is unguarded and lets the cat out of the bag, against himself, why should that not be taken into account by the court, examined for what it was worth, if he made this statement freely, if there was no compulsion, and so on?

Why should the interests of the community be hampered to such an extent as that a man has to be told: "Now, do not commit yourself. Do not say a word about what has happened until you have time to frame up a good alibi, until you have got legal assistance to enable you to see what is the best way you can get out of responsibility for the deed you have committed?"

Most of us, I think, looking at it in the ordinary way, and not seeing, perhaps, the dangers that may lie in that particular road, would be inclined to say that there was a good deal of commonsense in that contention, namely, why should a community come along and warn a person who has committed a crime that he is in danger and say to him: "Do not say a word; be mute; do not let the cat out of the bag at all until you have had time with your legal advisers to frame such an excuse as will bring doubt into the minds of the judges or the jury who are going to try you, so that they might be weakened and begin to think that, perhaps, after all, you did not commit the crime."

The Taoiseach is not pretending to quote from the report? That is his own interpretation?

That is my impression. I will read it if you wish?

I am appealing to commonsense in this matter. It is only by chance, so to speak, that it is dealt with in this report. Quite independent of anything that is in this report, one of the things that always struck me as strange is that you have to tell a criminal beforehand that anything he says will be used in evidence against him. It always struck me as strange that you had to warn a criminal to be careful; to be mute; to wait until he had a trained lawyer who would come along and get him out of the position. There may be some good reasons for it. I do not know them at the moment but it always did seem to me a rather strange provision, if the intention was to make quite sure in the first place that those who commit crimes are apprehended and punished, unless it is that there would be some danger to an innocent person.

There is another case, for instance, about an accused person going into the witness box. I know there is a difference of opinion amongst lawyers as to whether that is a good or bad provision. My own belief is that it is a good provision. No doubt, if a man who is accused of a crime does not give evidence, the very fact that he is not prepared to give evidence seems to be a factor against him. I think it is right that it should be because, generally, at any rate, if a man has not committed a crime he is in a position to show the inconsistencies of evidence against him or to make it clear that it is wrong or his lawyers, by getting him to state facts, can generally prove it. That is a thing that has been changed in the criminal procedure a very short time ago. I am mentioning these things because I am rather anxious that no member in the House should get into his head that these things are something like natural justice, something fundamental, and not subject to change by the legislature and by the decisions of judges from time to time. The Royal Commission add this note—I am not going to read the whole of it, but just a portion:—

"A good deal of support for this view"—I will have to find out what the "view" is in a moment—"may be found not only amongst those engaged in the suppression of crime, but in the minds of laymen. The detection and punishment of criminals, it is said, is not a game to be played according to a code of technical rules; it is a serious business of the community, working through its agents the police. Why then should a person who is supposed to have committed a crime be discouraged from talking freely, or in a way which may incriminate himself and thus serve the ends of justice?

"The legal answer to this question," they say, "has already been explained. But," the report goes on, "over and above that, is the British sense of fair play even to the criminal which probably originated, so far as modern procedure is concerned, in the general revulsion of feeling which manifested itself at the beginning of the 19th century or even earlier, against the shocking severity of the criminal laws at that time, and the old memories of judicial torture. Under stress of this sentiment rules of evidence and procedure which tended to increase the chances of escape of prisoners from conviction were regarded with widespread approval by both lawyers and laymen and have with much less necessity persisted until the present day."

The "view" was with reference to the warning. I mention this because again I am sure that time after time in criminal cases when you hear the question, "Was he warned?" the layman begins to ask himself: "What is this particular game?" What harm would be done if a person's statement was accepted as it was made—if you could be sure that it was in fact made and so on? What danger would there be and how would it get an innocent person into danger? I only mention these things to show that there is nothing fundamental, so to speak, in these rules of procedure except the one thing, and that is, to try to prevent a miscarriage of justice, to try to prevent an innocent person by some mischance from being found guilty. That is the thing we have to watch here—the only thing we have got to look out for. Is it possible—is it likely, because it is always possible? There have been cases where a person has been executed for a crime and the person who committed the crime has lived and has later confessed that he was the guilty person. Therefore, when dealing with a matter of this kind we ought to be as cautious as we possibly can be, provided we do not tie ourselves in knots in such a way as to make it quite impossible to get after and punish crime.

I have tried to give the House the frame of mind, so to speak, in which we have approached this question, and it has been with great reluctance that we have come at all to ask for powers with regard to some of the technical rules which might prevent certain facts surrounding the commission of crime from being taken into consideration by the court. It does, in the long run, I admit, come down to this: have you confidence in the court? That is what it comes to. There is no doubt that we are putting a very heavy responsibility upon them. It is not that we are shirking our responsibility in the matter. It is quite obvious that the Executive cannot try these cases themselves. If, in the course of a trial, it emerges that there are some extenuating circumstances, or that there is something peculiar, there is the right of review. This court can give only one sentence, that is, death. Like all courts which inflict severe sentences, there is always the possibility that if they are not completely and absolutely satisfied, there may be a complete dismissal. These things happen wherever the punishment is very severe, but the point really is that, while the Executive have the power of review, they cannot try these questions. They set up a tribunal of people who they believe will act as fair individuals and whose only function it will be to try to get the truth, so that if a person is guilty of a crime for which the law prescribes death, he will be duly sentenced to death; and if a person, in their opinion, is not beyond all reasonable doubt guilty of the crime, he will be acquitted.

We are putting a very big responsibility on the court, undoubtedly, in asking them to take evidence of this kind into consideration. Where are its weaknesses? I should imagine that the weaknesses a lawyer would see lie in this direction. A man may make a statement and may believe it, but if I have him in front of me for cross-examination—he may have observed certain things incorrectly—I may be able to point the fact out to him in such a way as to enable him to admit that he had not observed correctly, in the case of a statement relating to something he saw. It may also be a question of something which is deliberately false, and then you want to have the person who made the statement in front of you, so that he may be tested as to whether his statement is or is not true.

This does make it possible, in cases where it is not possible to get the person in front of you, to take this piece of evidence into consideration. If it were possible to produce the person who made the statement, I would, if I were a member of the court, demand that he be produced and I believe the court will do that.

Would you put that in the order?

I should like to have the Attorney-General's opinion on that. A great deal of this, I admit, is based on the belief that the court is competent. Perhaps we are going too far in that respect, farther than people would like, but again it is extremely difficult to limit yourself precisely in orders like this, because there will be the same manæuvring again with regard to these things in order to put what appears to be a piece of relevant evidence outside the court.

You could enact through the order that, unless to the satisfaction of the tribunal a man's absence was explained, he should be produced.

We are quite prepared to approach this matter from any point of view which will be of assistance. We are accused of bringing this in ad hoc, but, no matter what you do, these things will always arise, somehow or other, in connection with cases in the past or in the present. Amendments like this, as a rule, will not spring, so to speak, from the air. They will have some relation, of necessity, to the difficulties of the circumstances in which the Executive finds itself, in which the police find themselves, or in which the Attorney-General finds himself. As I mention the Attorney-General, I should like to say again: do not forget that the Attorney-General's office is there and the Attorney-General is there to consider all these cases purely and absolutely from the point of view of justice.

There was one danger which we wanted to avoid—which I certainly was anxious to avoid—and which is probably the reason for the omnibus clause 5. It was that it is not good from the public point of view that it should appear that there is a mending of one's hand to meet particular cases. That is objectionable and everybody admits it. If you do not make it sufficiently wide, if there is some particular manæuvre, you will be forced to try to amend the thing to meet that manæuvre, and one of the reasons for my belief that it should be left in its broad form was that I came to the conclusion that if these cases are to be dealt with properly, you will have to depend ultimately upon the sense of justice and ability of your court. I do not think it will be possible otherwise so to arrange it as to give the powers necessary for full investigation and to define them in such words as will ensure that the ends of justice will not ultimately be defeated.

I will tell the House the manner in which I see this operating. I cannot imagine the court accepting a document signed by somebody whom the prosecution could bring forward, if they did not bring him forward. I think the court is entitled to get the best evidence it can and if the court says: "We are not satisfied with regard to this document. Who is the author of this document? You have proved that he signed it and you have proved that it has been properly acknowledged——"

It need not be signed.

Acknowledged.

Under Article 5, nothing need be done except to produce it.

There are two things involved in this. There are documents and there is the wider power. There is, first, the particular reference to things which are set out in some detail with regard to the admissibility of certain documents and there is the wider clause which can be taken, as I understand it, to cover that as well as everything else. I think we can assume that what a person ordinarily would do, the court will do, too, and if I were a member of the court and I saw clause 5 and saw these other clauses with regard to a document, and that the document happened to be presented to me, I would say, that is covered by the particular ones before it. I would deal with it on that basis, unless there was something peculiar about it which made me believe that I should admit it otherwise. But it would be extraordinary if that were not so. In the ordinary case anyhow, the onus of proof would lie on the prosecution to show the circumstances under which this document was produced, whether it was produced voluntarily or not, and why it was that the person who signed it was not present for cross-examination. I imagine that the court would itself, of necessity, in order to get at the truth, demand these things, and if the prosecution was not able to give a good answer as to why the person who signed it was not coming to give evidence, then the court would naturally not regard it as of any particular value. In any case, remember that the fact that it has to be put in evidence does not mean more than this: that it can be taken into account by the court and given whatever weight, in the opinion of the court, should be attached to it in trying to arrive at the question as to whether the accused were or were not guilty. If I am wrong in assuming that the court would do that, and I do not think I am, then, as I say, it is not as if we were taking three people who had never tried cases before and who had no knowledge whatever of the nature of judicial processes. If we were doing that it might be different. I believe that we have to depend upon the court ultimately, upon its sense of justice, its fair play and its awareness of the dangers that can possibly exist in cases like that. We have to depend upon it. If we do not, then we will fail in bringing criminals to justice in cases of this particular kind.

To sum up, my view of the order is this: that a certain risk is being taken. Should we take the risk? In other words, on the possibility that somehow, somewhere and through some neglect or other an innocent person will appear to be guilty and be condemned in the wrong. Are we for that reason, on that very vague possibility, going to take the certainty that if we do not take that risk murder is going to be committed, and murderers will not be brought to justice? That is as it appears to me. As I say, we have to take the risk, just as we have to face the risk in the case of a person——

Would the Taoiseach say how many murders have been committed within the last year— murders of a political nature?

I have not got the list, but certain murders have been committed.

I do not know of any within the last 12 months.

The fact is that if a murder is committed and if the perpetrators get away, then it is always an inducement to other people to do the same thing.

Organised murders?

I am talking of organised murders, and I want to be quite clear on that. I think myself that, as regards what you might call individual crimes, crimes that spring from individual passion or something of that sort—and here I use the word "passion" in its broad sense— so far as these crimes are concerned. I think the ordinary law will be sufficient. It is when you have an organisation that sets out with a certain thesis, believing certain things and arrogates to itself the right to take life, and through its organisation makes every possible effort in advance to prevent discovery: when you have methods of terrorism adopted both from the point of view of jurors and of witnesses, then I feel that you have to take certain risks in the interests of the community. I am with everyone who says: Let us minimise that risk, let us try to do everything that is humanly possible to prevent an innocent person suffering in the wrong. On that I am banking on two things. The first is the fact that I believe the members of the court are sufficiently experienced to be able to weigh up evidence and to give a document the weight, and no more than the weight, that is due to it. Remember that the putting in of a document by the prosecution does not relieve the prosecution of a number of things that it has to do before the court. It has, for example, to satisfy the court in regard to the circumstances under which the document was obtained. That is obviously a matter that the court has a right to inquire into. But the rules of evidence would prevent it, no matter how relevant or how convincing when taken in relation to all the other circumstances. The rules of evidence would prevent what appeared to be a relevant fact from being taken into account at all.

Let us, then, approach this from the point of view of trying to see, in so far as we humanly can, that no mistake will be made. As I have said, I am depending largely on the wisdom of the court. There is also the fact that the Government itself will have the opportunity, if there should appear, in a particular trial, to be something or other which demands a special examination—it will have the final power to mitigate the sentence.

It is unfortunate—it is I suppose the result of our history—that we have to use in times like the present extraordinary measures. Something I said in my approach to this was mentioned to-day. I have to say now that my view then was an honest view, that we should try to remove the causes. We have done everything that it was humanly possible for us to do to take away any cause or any reason for an organised effort of this sort. There are some things that are completely outside our power, but at any rate we have got to the stage in which we have got to see that this community needs order. This community, like every other community, needs a Government and needs direction. It can have only one Government and only one direction. There can be only one set of laws for the community to obey, and all the community will have to obey these laws. We have come to the position in which we can take up no other attitude. We say that there are some things that are outside our power at the moment to change, but if they are to be changed that it is we, the representatives of the people, who have got to do it, and if the people think otherwise, that we are not doing it, then everyone is free to go before them and ask for the power.

There is no limit of any kind under our Constitution to the distance that any group of people who get the confidence of the people can go in asserting the national rights, but we cannot have a group arrogating to themselves the right to do that over a long period of time. An opportunity has been given to any group that is prepared to go before the people and say: "We are submitting to these fundamental rules if we get a majority; we can change any rules that we do not like, if we have the support of the majority of the people to do it," but we have passed the time in which there can be any further toleration of any group arrogating to itself the right of government. We have come definitely to that stage, and it is in the assertion of that right, the right to see that no group will take upon itself responsibility for taking the lives of citizens here—it is to see that we are in the position to carry that out—that we are asking the House to support us in this step. Like everybody else, I regret that that is so, but we have to face the fact that that is the position and, as far as we are concerned, we have done everything that could possibly be done. We have taken big national risks; we have risked the interests of the community as a whole. We have taken very big national risks in order to leave ourselves on a completely clear foundation here, and we have done that honestly. We want to tell everybody that we have arrived at the stage at which there will be absolute insistence that the Government here be regarded fully and completely by every citizen as the Government and that no authority or pretended authority contrary to that will be permitted.

Will the Taoiseach inform the House of the true significance of the statement by the Minister for Justice that this order was required, amongst other things, to deal with organisations that were trying to bring outsiders into this country?

I do not know to what extent it would be justifiable for me to go in that direction at the moment. The Minister made a statement, the significance of which you all admit. He said a certain organisation at one time took upon itself to say it was making war on behalf of this country. The fact that a group is making war at the present time means that it must be making war on one side or the other. Now, we are neutral. The suggestion, apparently, was that we were being brought into war on one side.

The Minister for Justice suggested that there was another group, apart from that group.

I take it the Minister had in mind what he has often told me, and that is, that on the fringe of this organisation there is a group of people who are not members of any such organisation but who are, in fact, toying with the question of other people being brought in here. We have to admit that, unfortunately, we have a certain political situation. I hope if I refer to it now it will not open up a debate. If I thought it would, I would prefer not to say anything. We have a situation in which our country is divided.

That is the cause of all our troubles, the fundamental difficulty.

It is a fundamental difficulty, but my answer to the Deputy is this: We are the people who have been put into office by the Irish people to look after that situation, and nobody else.

If we do not do it, nobody else can.

I think everybody in the House, no matter how they may differ from us politically, and irrespective of the views they may have as to what is nationally or otherwise possible, will agree that one thing has been achieved—if you like, by our united efforts—and that is that the people of this part of Ireland are as free as any community on the earth as far as being able to do anything they want.

English interference is the cause of most of our difficulties.

As I have said, a certain political situation exists in this country. We in this part of the country, the majority, have done everything that it is humanly possible to do. If there is to be a further advance in that direction, then it must be by the organisation of the people who are represented here; there cannot be two sets of people going to do it. We have arrived at a stage when it is quite clear that the Irish people are free to deal with any situation, with any question of Irish rights; they are free without any embarrassment of any kind, constitutional or otherwise.

The criminals we are dealing with in this order are there because of the situation that exists.

I am quite willing to admit that is so—I have not denied it. It has been the basis of our policy for a long time, but we can very easily lay too much stress on that aspect, so as to go to the point of letting people think that because that is so they have the right to come along here and arrogate to themselves certain power, the right to give national direction and involve the nation. They cannot do that, and we say they will not be let do it. We have done everything that it is humanly possible to do to make it easy for any section with any political views, any programme with regard to national affairs, to carry out their programme, but the time has come when we cannot allow the nation to be frustrated and the national will completely set aside by a group arrogating to themselves certain powers and killing individuals in our community. We have the responsibility of safeguarding the lives of all individuals in the community, and our object is to see that these lives are better safeguarded in the present situation. That is the purpose of the order. Coming back to the order, I realise there is a certain risk——

I ventured to ask if the Taoiseach would inform the House what was the exact meaning the Minister for Justice had in mind when he spoke of this order being directed against organisations that sought to bring outsiders into this country. I want to know the facts in order to vote appropriately.

I cannot give the Deputy the facts. We were asked here: "Why do you not bring the heads of a certain organisation to trial?" The answer is that though we believe we have the heads and that there is evidence that the ordinary man in the street would believe sufficient, it would not procure conviction in a court of law. We have repeatedly had that experience in regard to cases when they came to the Attorney-General. He has reported to the Government: "I have no evidence that will be able to secure conviction." That is because of the rigidity and the strictness. I am not saying it should not be so; the dangers otherwise might be too great.

Who are the outsiders?

In this case there are two sets of belligerents. The organisation in question purported to make war on one. Is it not obvious that that particular organisation is likely to be trying to work with the other? Is it not common sense?

Speeches were made by a Deputy in this House calculated to bring an outside nation in to declare war on this country.

I do not know anything about that. My understanding at the time was that the Deputy said that we were not going to go in without the will of the people, as expressed by a vote in Parliament. I differed from the Deputy's views as much as anybody else.

What is the second organisation referred to by the Minister for Justice? The Minister mentioned there was another organisation endeavouring to bring in outsiders.

Mr. Boland

And they are closely watched.

The Minister said they are being closely watched. I can only give the information that I have got from the Minister and that was to the effect that there was a group who, while apparently keeping constitutionally all right, not part of this other organisation, were toying on the verge of it to such a point that, if proof either in their case or in the case of the others could be got, it would be a matter that would come definitely under the heading of treason. If the evidence was sufficiently good, one of the things we might have to have would be a trial for treason, treason against the State, treason against the community. But for that you want to have very definite evidence and we do not propose to have trials of that sort until we have such evidence as would make it absolutely certain. There are certain conditions under which you can have treason trials under the Constitution—treason is definitely defined there. Now, that, to my mind, is what the Minister had in mind, and I am afraid I cannot meet the Deputy's point any farther except to say that the statement made by the Minister was a statement which he believes, at any rate, he has ground to think is based on fact.

Well, now, I have said all I can say about it. As I say, any suggestions for amendments could be considered later, but I would ask the House not to press them, if they possibly can, because I am afraid that if we get in amendments of a particular type now we shall find ourselves having to come back here looking for wider powers.

You do not need to come back here to get wider powers. You can take them.

I mean that we would have to get another order, and I think everybody would admit that it is not desirable in these cases, from the point of view of the community, to be coming along here in that way. We hate to be coming along with this order, and if any amendment comes along it will be as a result of some particular case, as you may be sure. Consequently, I think the best way to meet this would be to let the thing pass, and if you want to have a review of it within a certain time of its operation—say, within a period of six months—we would be quite prepared to have it reviewed, but I would ask the House to negative the motion now. I do not wish to go back on the statements made by Deputy Norton, which were quite wide of the mark and could not be substantiated in the slightest—such as the talk about the court being in our pocket and all the rest of it. That is all nonsense.

I must confess that the Taoiseach's supplementary speech, although, as usual, marked by the interjections of Deputy Dillon, did not convey to me any more intelligent account of the Taoiseach's views on the serious matter now before the House than the first part of his speech, which he addressed to us quite casually and in that persuasive manner of his.

Might I be permitted to intervene on a point of explanation, lest I be misunderstood?

Will the Deputy give way to the Taoiseach, who desires to make a brief explanation?

Very good.

I am not asking for this order on the basis of the statement made by the Minister for Justice about the present situation with regard to the danger from outside. I do not think the Minister intended that. We are bringing in this order because we want to protect the lives of our citizens against terrorism, and, mind you, that might be necessary in ordinary times just as in the present. It is true that it is somewhat—well, perhaps, considerably more—dangerous at the present time, but really the object we are trying to secure by this order is to see that the murder of our citizens cannot be done with impunity. That is really the object.

In these days, I am sure, all of us are grateful for small mercies, and I have no doubt that we all appreciate the fact that the summoning of this special meeting of the Dáil by the Taoiseach has given us the opportunity of expressing our blunt and unequivocal viewpoints on the serious matter we are now considering. Since the onset of the emergency, now almost two and a half years ago, there has been a deplorable tendency on the part of the Government to ignore the elementary rights of a freely-elected Parliament of a free people. There has been a tendency to replace Parliamentary legislation by government by emergency orders and decrees, and we have now arrived at the position when Parliamentary legislation has almost gone by the board, except in name, and we have developed an almost complete system of government by order and decree.

Sins of commission and omission have been perpetrated by the Government in the name of the emergency, and there is scarcely an aspect of the political, economic and social life of the country that has not been criminally tampered with by the issue of these emergency decrees, sprung over-night on a helpless people. In my view, no emergency, short of actual invasion or of the outbreak of hostilities on our soil, could possibly justify the position in which we now find ourselves in relation to Emergency Order No. 139. This is surely a pretty pass to which we have come after 20 years of native government. Many of the emergency orders which have been issued might be cited as examples of the gross abuse by the Government of the support and co-operation accorded by all sections in the House in securing the enactment of the Emergency Powers Act, which has made possible the flood of emergency decrees and orders under which the country is now being submerged, but Order No. 139 is outstanding as an example of the tyrannical lengths to which the Government are prepared to go to achieve whatever it is they consider to be their object.

This Order No. 139, which sets aside the rules of evidence evolved only after centuries of experience of law, tradition, and precedent in the law courts; this Order No. 139, which permits the reading of a statement by the prosecution at any stage in a trial, and its acceptance as evidence notwithstanding the absence of its author; this order, conjured up in the mind of some anonymous bureaucrat, endorsed with the seal of the Minister's office, and which introduces an entirely new orientation in criminal jurisprudence, weights the scales of justice against an accused person—against an accused person who, in this country at any rate, enjoys the privilege and the right of being deemed innocent until proved guilty beyond all measure of doubt.

This Order No. 139 no doubt provides a short-cut to the establishment of the guilt of an accused person. It marks an easy way towards the achievement of that object. Quick results, and possibly fatal results, will be obtained, but who is there who can deny that at the same time there is inherent in this order a danger of the setting aside of the principles of justice? It is a notorious fact that, on the many occasions on which the Government adventured in the law courts, especially in connection with cases of a political or pseudo-political background, all they succeeded in securing was a verdict endorsing their own inefficiency. Whether that was due to the fact that they were misinformed, or whether it was due to their being ill-advised or badly instructed, it is not my business here this evening to speculate. It would appear now, however, that the Government feels that in Emergency Order No. 139 they have forged a weapon which strikes at the very heart of the legal tradition and precedent standing in their way. Let the Government beware, however, that this weapon which they have forged might pass into other hands at a later date, and be used against themselves. The issuing of this Emergency Order has outraged the entire community in general, and the members of the legal profession in particular. Its widespread condemnation in newspaper articles, editorials, and in the published views of eminent lawyers, has at least helped to inform public opinion of the outrage perpetrated against the community in the name of the emergency.

I observed that, when Deputy Costello addressed himself to this motion, he adopted the attitude that one would expect from a lawyer of his pre-eminence, who could view an order of this kind in the full light of all the circumstances. He made it clear that, notwithstanding his 27 years' experience in the law courts, and notwithstanding the gravity of his views in relation to the setting aside of well-known established principles and precedents, if the Minister could convince him that there was no existing machinery under the ordinary law to deal with cases of this kind he would be prepared, however reluctantly, to record his vote in favour of the order. I listened as intently as I could, and endeavoured to follow the Minister's speech as closely as possible. I gathered from what the Minister had to say that these were the reasons which prompted the Government to issue this order: that they wanted to deal with an internal situation; that organisations other than the I.R.A. were being watched; that this order refers only to cases brought before the military court; that military courts were necessary because other courts could not be found to deal with certain types of cases; that organisations were getting away with organised murder, under the laws of evidence; that the action taken under this order would have the support of every plain man in the country, and that that support was much more important than the support of the lawyers. Then the Minister went on to read a statement from some anonymous organisation. He made it clear, however, that the organisations to which he was referring were not represented in the House. I am not contending that what I have read out is a verbatim account of the points made by the Minister, but I think the ones I have mentioned fairly represent the case which the Minister endeavoured to make for this emergency order, and I have no doubt whatever that, if Deputy Costello adheres to the attitude which he adopted when speaking on the motion, he will have no hesitation in rejecting the grounds put forward by the Minister for Justice as being totally insufficient in support of the necessity for Order No. 139.

I should like to know from the Minister what exactly is the meaning of the word "acknowledged" in subsection (3) of Article 4. I have read the order and re-read it, and so far have not succeeded in discovering any meaning whatever for that particular sub-section which would make it intelligible as far as I am concerned. Perhaps I have not made myself clear to the Minister. I have no doubt that the Minister is thoroughly conversant with the order. What I want to know is what is the precise meaning attached to the word "acknowledged" in subsection (3) of Article 4 of the order?

Mr. Boland

It obviously means that it was acknowledged or admitted by the witness to be his statement. I think it is quite plain.

But not admitted in court?

Mr. Boland

That it was admitted when it was made—that when it was taken down in writing it was acknowledged to be his statement. That does happen very often even when they do not sign the statement. "Acknowledged" means admitted to be his statement.

It need not be proved in court to be his statement?

Mr. Boland

That is a matter for the court; it has no value except what the court wishes to give it. That statement is handed in, and it is for the court to say whether or not it is any good as evidence. The defence could say: "That document is not worth considering" and tell the court that they should throw it out, and the court can do that if they like. But we want to make sure that that type of statement is presented to the court.

But the statement need not be signed?

Mr. Boland

That is so.

Then what form will the acknowledgment take? Will it be an X? That is the point that is worrying me. The statement must be acknowledged. What is the Ministerial definition of that?

Mr. Boland

It might be a mark, as the Deputy says; it might be signed or admitted by the witness that he made that statement.

But if he is not there?

Mr. Boland

He may be there.

He may not be there.

Mr. Boland

If he is not there, the reason why he is not there will have to be inquired into by the court. There are definite cases in which I am satisfied the court will only be prepared to take the evidence of absent witnesses. I am quite sure that there are very definite cases in which that will be done. That is why the provision is made for it. We all know what may happen. A witness may be abducted or he may be shot.

Would it be an unfair interpretation of that to say that it only means that the man bringing forward the evidence will state: "This is the statement of the witness and he acknowledged it to me"?

Mr. Boland

Yes, that is right.

The unsupported testimony of the man who took the statement?

Mr. Boland

That is right. But, as I say, the court would attach what value they like to a statement of that kind. I hope I have made that clear. Whatever you may think of it, that is the position.

In conclusion, I should like to say that the Labour Party do not seek to annul this order because of its relation to any particular case before the courts. We are as keen as any other section in the House and as the Minister himself to bring to justice those who break the law. We are as jealous of the preservation and the safety of the State as anybody and we are prepared to stand four-square with the Government in defence of the State against enemies, whether foreign or domestic. But we are not prepared to alter the concept of justice established by tradition and precedent and to revolutionise the judicial administration of the law in this country on the basis of Order No. 139. I had intended, until I heard the Taoiseach's speech, to make an appeal to the Minister for Justice and to the Taoiseach himself to withdraw this order, because they themselves in other days were hounded by the minions of the law. They suffered punishment, persecution, and imprisonment to break what they considered to be the shackles of tyranny. In the old halcyon days of the Fianna Fáil Party the slogan was: "On to the Republic." Are we now to take it the new slogan is to be: "Back to the land of suppression and oppression?"

This debate has gone on for a number of hours and the Head of the Government and the Minister responsible for the Department of Justice have spoken. Yet it appears that any little information given to or obtained by the House with regard to the intentions behind the particular order under discussion has only been obtained by the same methods as a dentist pulls out a tooth—by skilful extraction rather than by voluntary statement on behalf of the Government. At the opening of this debate Deputy Costello, on behalf of this Party and on behalf of thousands of disturbed but honest and conscientious people outside this House who wanted to do the right thing irrespective of risk or danger, speaking on behalf of the whole lot of us before any member of the Government had spoken, implored the Government to make the case, whatever it was good or bad, for this extraordinary order. He asked them to bring along the facts, bring along the figures, bring along the evidence, because nothing would justify such an extraordinary order except a very extraordinary and very dangerous state of affairs. The Deputy said: "If your courts are being throttled, if witnesses or officers of the courts are being intimidated, let us have the facts; give us the evidence." He pointed out that when another Bill of this nature was introduced by Deputy Cosgrave's Administration—a measure of the same nature, but as mild as milk compared with poteen when contrasted with this particular measure—no member of Deputy Cosgrave's Government would ask any Deputy to give his support to a measure which so drastically interfered with the constitutional rights of the people except he could do it with an easy mind and except he could do it in a way that he could say with conviction, before his God, if necessary, that he only took such terrible chances with the lives of people in the grip of the State because the alternative was very terrible and because the figures and the facts and all were there before him. In that atmosphere and at that time, I was contesting a by-election here in the City of Dublin. When the grass had not started to grow on the graves of jurymen and witnesses who had been shot down because they did their duty before their God in the courts of this country, and when four of the bigger hospitals in this country contained wounded men because they gave evidence or intended to give evidence in tuppence-ha' penny cases, the Administration of the day came before the Parliament of that time with a measure very much milder than this. They pointed to the various cemeteries in the country where the bodies of the dead people lay because they had done their duty for and within the courts of this land. The long, long litany of outrages was there to read, the figures were given to be heard, and there was a most elaborate and exhaustive case made.

But, even in the face of that, in such very, very terrible times, when it would be fairer to say that the issue was the survival of any law in this country or otherwise; in that set of circumstances there was a most ruthless and relentless opposition to conceding any such powers voiced by the present Taoiseach and by everyone of his Ministers. In so far as anybody could accept that as being honest opposition, based on conviction and guided by a conscience, surely we are entitled to say that when an order is introduced immeasurably more drastic and far-reaching in its effects, in which there is a far more violent interference with the rights and liberties of the subject, the Party which had taken that line at that time should have come in here fully documented, prepared to give all the facts, such as they were, to produce all the evidence, such as it is, and to endeavour to convince the most conscientious person that the path of duty lay in giving these extraordinary powers to the Government. Will anybody assert that any case was made, that any facts were given, that any figures were given? Will anybody claim that any attempt was made to meet the pleadings of Deputy Costello on behalf of others? Is it the object of the Government to make it as conscientiously difficult as possible for people to support them in the path they are going?

We had references to murders and to interference with the courts, but we bad not one murder referred to nor one case of interference with the courts. At the time that previous legislation was introduced, eleven years ago, perjurers, as a result of intimidation, were as common as crows in the sky. Every second man you met who either was a juryman or might be a juryman had a threatening document in his pocket which he could show to anybody. Some were killed and others wounded. Every bit of information was brought before Parliament then. Yet, we are asked, as people who should have a sense of responsibility, to come along and vote like so many "goms" in blinkers, with not one bit of information given. That may be due to bad training, resulting from having such a large and disciplined majority for years in this House. But that is no way to treat members of a Parliament in any country. If the case is good, let the case be made. If the situation is not sufficiently serious for the full facts to be given and a sound case made, then withdraw your order until you are prepared to make a case.

The Taoiseach gave us rather a lengthy lecture as a layman on law and the laws of evidence. I do not approach this question as a person who knows anything about law. I do not approach this order as a person who has any academic respect for the laws. I am just an ordinary person, respecting the ordinary laws in so far as they are a suitable instrument for carrying out the simple laws of God as to how a man should be treated by his neighbour and how he should treat his neighbour. The various ramifications of the law mean nothing to me. I have far more use for fair play, as it is ordinarily understood, than for the term "justice" as it is often understood. It is my sense of fair play that is outraged by this order.

I was one of those who urged Deputy Costello and Deputy O'Sullivan to endeavour to get, before any of us took a firm line on this order, as full, frank and candid a statement from the Government as could be made. Our attitude from the beginning of the present war has been, in all questions of law and order, to give any and every power to the Government. Our desire, after two and a half years of rather sad and disappointing experiences, is to continue to do that. We gave powers freely two and a half years ago. We gave powers where the only contract that could be made was the word of a Government Minister that the powers would not be misused or abused. So far as many of these powers went, we had since to put down, not one, but many motions to withdraw from the Government the powers we had given because of the way the verbal contract had been dishonoured and the way these powers had been misused. We are asked again to take another jump in the dark, to give further powers of a really terrifying type to the Government. One Minister says it is because of murders committed. He is asked when, where, how many, were there any in the last twelve months? When you follow up that kind of statement you get negative answers all the time. The other Minister says it is because of the activities of an organisation which is attempting to bring outside people into this country. Towards the end of his statement, the Taoiseach says it has no connection with that, that it is not for that he wants this order. Are we not entitled to ask: "For what do you want it?"

There has been a lot of vague and mystifying talk about an "organisation". Guineys is an organisation. Cannot we use plain simple language? Is it the I.R.A. we are talking about, and is it only the I.R.A.? Is it the I.R.A. and a number of other organisations you want to get after and, if it is, what are the names of the other organisations? All my public life, and the public lives of those who sit beside me and behind me, we have opposed the criminal activities of the I.R.A. We have never attempted to cadge or curry favour in that direction. Two members of my family are in their graves with bullet-riddled bodies because of the determined front they showed to the criminal activities of the I.R.A.

It is certaintly not as a sympathiser with that organisation, nor as a man who has any brief for it, that I oppose the order and support the Labour motion. I say that because of the Minister's cheap and rather uncalled for gibe at Deputy Norton—saying that he was surprised at Deputy Costello's opposition but not surprised at that of Deputy Norton, who was riding a rising tide.

My opposition to this particular order—to say it plainly—is not because it is aimed at the Irish Republican Army but because, in a rather discriminating way, it is not aimed at the Irish Republican Army. You have an emergency order coupled with this, which lays down a long list of charges, for any of which people will be sent before the special tribunal. Assuming that the very terrible organisation that the Minister is referring to—the organisation which has justice by the throat, which is menacing the safety and stability of this State, which is attempting to bring outside forces into this country in order to mow down the forces of the State—is the Irish Republican Army, is not the obvious way, the bold way and the honest way to deal with that organisation to add membership of it to the list of special offences that will be tried by the special court, the court that has power only to sentence people, if found guilty, to death. Is that not the obvious way? I believe that would be the Minister's way, if he had his own choice.

I believe that the present order is an evasion, a compromise, a side-stepping for political purposes, a failure to grapple with the one apparent, dangerous and criminal organisation that is operating within this State. If it is not that, it is in order for him to deal with a small number of individuals whose names have been discussed very freely elsewhere in the last week. I would consider it entirely unworthy and a very dangerous precedent, if an order such as this, casting a shadow over the lives of people, putting nearly unlimited powers into the hands of State servants with regard to the liberty of individuals, were to be passed in order to deal with that very small number of people.

The Taoiseach listened to Deputy O'Sullivan's remarks and to Deputy Costello's remarks, and heard them both point out that, when powers of this nature were sought by the previous Government, the previous Government would not presume to ask Parliament to give such powers until they were prepared to make a full and elaborate case and make it in Parliament, based on documents, based on crimes specifically named and mentioned, based on episodes which occurred within and without our courts and which were written down in black and white for all to read. The Taoiseach listened to the appeals of those two Front Bench Deputies, when they pointed out that, if the Government have a case, no matter how reluctant we may be to give powers of this kind, let them make it and that will decide the votes of very many people on this side of the House. Having listened to them, the Taoiseach stood up as if he were addressing an infants' class in school and gave us a simple lecture on law and the laws of evidence. He is no fool in debate: he took up the best part of three-quarters of an hour in that kind of elementary lecture on law. It was as good a way as any of avoiding the requests that were made from here.

Even in that little lecture, however, one would imagine that it was a simple alteration of the laws of evidence that was under discussion, that, as a result of experience—perhaps peculiar to this country—we were making an alteration in the law of evidence here and there, and that that was all it amounted to. I see nothing sacred about the laws of evidence. I do not know very much about them. I heard references here to day to their history, but what I do know about the law of evidence, such as it is, whether it is altered or not, is that where fair play operates within the laws of evidence it is to the extent that whatever alterations are made in it those alterations can be availed of both by the prosecution and by the defence. That is the portion of this particular order to which I most strongly object.

We blast our way through the laws of evidence, as they exist at the moment, and we alter them and frame them in such a way that they can be perforated and punctured, but only by the State at the request of the prosecution and in the interest of the prosecutor. Whatever punctures or holes are blasted in the old walls as they stood, the holes are big enough for the State and the prosecution to walk boldly through, but the prisoner or his defender is not even allowed to peep through those holes. If ever there was an example of a loaded dice being used within the court of so-called justice, surely, whether it is right or wrong, whether it is necessary or otherwise, it must be admitted that definitely it is a loaded dice. Documents not sworn to, not necessarily signed, can be brought forward as evidence in order to hang a man; but documents signed under the same circumstances cannot be brought forward in order to defend a man. Is not the sense of fair play of any ordinary person—lawyer or non-lawyer, Minister or Deputy—outraged at that particular suggestion? The Minister's attitude is this, that if I have in my custody a person or persons that I believe were guilty of murder, then I am going to see that the murderer pays the penalty for his crime. I am all for the Minister there. I am all for any man who takes up that stand. This would be a better country at the present moment if we had all taken up that stand from the birth of this State. However, be that as it may, the Minister can always rely on people on this side supporting him in that attitude.

If the Minister comes to me and says: "Look here, I have a bunch of men, and I am perfectly satisfied, and I can satisfy you that they have been guilty of murder but, on account of the difficulties of the law of evidence and all the rest, they will never be made to pay the price within the ordinary courts of justice. This is my suggestion: I cannot let the guilty men slip through my hands if I am to protect the valuable lives of people living at the moment, and it will be an encouragement to organise crime outside. As I dare not let them slip through my hands. I have either to play ducks and drakes with the law as it exists in order to get these men, and make them pay the price, or I have to get them outside the courts by Executive action. Will you stand beside me in order to get them outside the courts by Executive action?" My reply would be, "Not only will I stand beside you, but I will stand in front of you in taking such action." Better see that a guilty man pays the price of his crime, not at the cost of the courts, but leaving the courts to stand with all their strength and with all the respect that is due to the courts because of the traditions which hang around them, and the length of time they have stood up against the changes and stresses of time. I will pay this tribute to the Minister. He is certainly outstanding, in my regard, for the fearless way in which he has consistently attempted to do his job since he took over the Ministry of Justice. He is the last Minister in the present Government that I like opposing in any request he makes but his enthusiasm may be the explanation. Another explanation may be interference by others, so that he cannot do what he wants to do in the way he would like to do it. My suggestion is that an organisation such as the Irish Republican Army or any other anti-State organisation that comes into existence, and the members of such organisations, should be named and be added to the list of offences in their order.

If the Minister wants to ensure that people guilty of murder in order to intimidate either juries or witnesses, he has to realise that their strength is not the strength of the individual with a gun in his hand, but the strength of the membership of the organisations to which he belongs. War must be made on the organisations, not on the individual.

This particular type of order that we are dealing with gives me the impression of a certain amount of sham fighting. It gives me the impression of an executive council anxious to engage in a game of make-believe, that they were out simply against the I.R.A., when actually they are simply out against one or two helpless individuals. It is just like a country saying it is going to war against another country, but having first hit up against the organised soldiery of the other army is simply sniping at individuals when they come home on leave. The order, as it appears to me, is definitely, in so far as it is aiming at doing the right thing, doing it in a very wrong way. I consider the position of the Minister for Justice to be something like this: If there is a rat in my drawing-room it is the right thing for me to get the rat, but it would be wrong for me to get the rat by smashing every bit of furniture in the drawing-room. If you liken the furniture to the machinery of the courts that is exactly what is happening under this order. The one objection I have is that the order or the collateral order does not apply specifically to any organisation named or to any group of any organisations named. It is just a case of a lucky dip: "Give me the powers and I will use them either to the right or to the left, or straight ahead."

I would give these powers to the present Minister for Justice if he could exercise them alone, and without interference, and if I had a guarantee that he would remain Minister for Justice as long as these powers are to live. I am not prepared, as a result of sad and hard experience, voluntarily to give such power to the present Executive Council as a whole. Some members have a rather tortuous method of approaching their object, so that in approaching the object straight ahead harmless people and harmless organisations to left and right get rolled over in that tortuous approach. I do not want to be specific. I do not want to go back even into recent history, but we had hard, sad and disappointing experience of the administration of special weapons put into the hands of the Executive Council. Seeing that no speaker would say so, let this order be clear and concise, by saying who and what it is aimed at. Then you will get twice the amount of support that it would get as long as it is left so that it can be aimed at anyone.

I might put a double-barrel shot-gun into the hands of an irresponsible person to shoot carrion crows, but I would not put the same double-barrel shot-gun into the hands of an irresponsible person who might shoot indiscriminately up and down O'Connell Street. That is my attitude in regard to this order. Say whom you want it for, say whom you are going to use it against, and in spite of my distrust you will get my support. Say whom it is aimed at, taking power, with the consent of Parliament, to add any other organisations at any other time. Certainly I am not going to give authority, nor do I think it fair to ask for an instrument of this kind to be put into the hands of any Executive Council, when that Executive Council, for one reason or another, will not even say whom they intend to use it against. Precedents are supposed to have some value in Parliament. In your predecessors' time—which is approximately as long as your own term—and it was a terrible time, when there was actual war up and down the country, a time when funerals and hearses were as common as taxi-cabs, can you point to any single instance when the Governments operating in those circumstances, ever came to ask for drastic powers that they were not prepared to make a case for them; when they were not prepared to tell Parliament, Church and people why they wanted those powers, and whom they were going to use them against? Was there ever a time when they shirked pointing to the organisation or organisations which were threatening the State or the courts, and saying: "These are the bodies we want the orders to apply to, and if there are any other bodies at a later date, then we shall come to Parliament and get authority to add their names"?

Is there anything worse in the present situation? Does anyone hold that it is nearly so dangerous or nearly so difficult as those times in the past? There is no powerful political Party throwing the cloak of patronage over any of the evil-doers of to-day. Their numbers are small. In my opinion, they are very generally discredited. In my view, very few members of the public would give them any support or any aid. It is quite a small problem as compared with the problems in the past. If it is that organisation, namely, the I.R.A., with which you are dealing, is there any objection to mentioning it? The name is mentioned in statutes before this. If you want this order, in course of time, to be used against other bodies, then come to Parliament and mention the other bodies. I say to the Government as a team, to the Government as a Party: If you are, as a Government and as a Party, going to grapple thoroughly and fully with organised crime in this country, if you are going to grapple with it fully and sincerely, let us know, and everybody here will be with you, but you cannot fight crime at the hall door and sup with the criminal in the kitchen. You cannot fight crime with half your army and have the other half of your army "colloguing" with crime. The fight against crime must be an all-in fight. It must, above all, be led by leaders who are not either ashamed or afraid to call a crime a crime, to call a lawbreaker a criminal, and who, when they look for instruments of this kind will not be afraid or ashamed to name the organisation and the type of criminals with which they are going to deal.

I think that the circumstances to-day are quite different from what they were in 1931 when legislation of this character was proposed in the House. I think that most of the speakers on the Opposition Benches have shown that they realise the gravity of the situation and they have performed a national service in criticising this order in a temperate and constructive way. I must say I was rather disappointed at the speech of the last speaker. I do not understand his attitude, having regard to his long experience on the Defence Conference and his experience of conditions in this country during the war; moreover, his knowledge of the fact that at any moment, at very short notice, the Government in office, in times like these, might out of the blue sky be faced with some very desperate situation. Even if, as was stated in the House on a former occasion, the number of desperate individuals ready to participate in such a venture may be comparatively small, there may be ways and means in which their organisation can improve itself, in which it can get arms, in which it can get people in certain strategical or confidential positions to help it out, and, by a mere incident, a very serious situation threatening the security of our country may arise. At any rate, in the previous situation, whatever differences of opinion we may have had as to the necessity for the powers which the last Government sought in this House, there was no danger of our being involved in any conflict with an external Power. I think it must have been running through the minds of all the speakers, whatever their views about the present order may be, that there is always that danger which the Government, at any rate, feel more consciously and strongly than others.

But the Taoiseach withdrew that suggestion.

I do not think so.

He definitely repudiated that suggestion.

I want to say that we are deeply conscious of the fact that the Government——

The Minister does not agree with the Taoiseach.

The Minister for Education.

The Taoiseach speaks for himself.

Deputies

Oh!

He speaks for everyone in the Executive Council.

I am not in the habit of interrupting Deputy Mulcahy. The Taoiseach has made his speech and the Deputy may gloat over it as he thinks fit.

We are not glossing over it.

The Taoiseach is well able to speak for himself, and it is not necessary for me to explain what he says.

You are running away from it.

If Deputies do not want to hear me, I do not want to speak. I consider the matter too serious.

I am sorry the Minister for Education did not pursue his speech. I think a time has come which calls for some plain speaking. I want to say at once: surely the Government does not recommend this order to the House as a desirable legal reform? I confess I listened with consternation to the Taoiseach explaining that it was a desirable reform to suspend the whole law of evidence. I have no doctrinaire views on the common law of evidence. I look upon the common law of evidence that obtains in this country as a good law of evidence, but it is not the law of God. It is not sacrosanct. It is conceivable that careful inquiry by competent jurists might suggest suitable improvements, but surely the emergency order submitted by the Government is not the type of improvement that this House would desire to make in the permanent law of evidence to obtain in this country for all time? All the humbug and nonsense about Section 2 and Section 3 of this order is irrelevant. There is only one section an operative section in this order. That is Section 5, which abolishes all law of evidence so far as a military court is concerned. That is the fact.

This order abolishes all laws of evidence, and delivers the military court from submitting to any control whatever in regard to any evidence they want to take under their consideration. Let us face that fact. Let us realise the immense gravity of that fact, because it is a desperately grave thing to have to do. Surely the Government is not trying to seduce this House into approving of this order as though it was a trivial thing. It is not a trivial thing. It is a very terrible thing, but I am prepared to say that, terrible as it is, if the Government require it to meet the conspiracy that I believe to exist, then the Government ought to get it. But why does not the Government tell this House the true nature of the conspiracy it is designed to meet? Deputy O'Higgins has said here to-day that if there is a rat in the wainscoting, no prudent man would burn the house in order to exterminate it. No. If it was just a rat that was in the wainscoting, I would be content to set a cage and wait to catch it. But if it was a rat infected with a typhus flea, I would burn the house and burn the street if necessary in order to extirpate it, and I say that what we are confronted with now is not the I.R.A., poisonous as that institution is, but the I.R.A. contaminated and sustained by Nazi help and Gestapo inspiration.

Is that the Government case?

Another German plot.

That is a question that Deputy Davin is the last man in this House to ask me. I will challenge the Minister for Justice to contradict me. We have seen in the papers of this country, the public Press of this country, the arrest of a man called Goerz, who landed in this country by parachute, and it is common knowledge to every citizen of this State who listens to common rumour that that man was in close and intimate touch with the I.R.A. for nine months before he was laid by the heels.

I think the Deputy is going outside the motion.

I am not going outside the motion. I am justifying the enforcement of this order, and I say the justification, and the only justification, for the suspension of the law of evidence is to meet a conspiracy of the character at present existing in this country, which threatens to destroy all government in this country. I am describing the conspiracy, and what I want to know is, why will not the Government tell the people the truth? I am saying that the I.R.A. have accepted the co-operation of outsiders in the form of the Nazi Party in the German Reich to publish manifestos designed to bring the popularly elected Government of this country into such odium and disrepute that the people might be educated to turn from them in loathing and disgust and accept in their stead Quislings chosen by a Power outside this State. I say that persons party to that conspiracy are entitled to none of the protections of a civilised community, and I say that persons who embark upon a conspiracy of that kind should be told: "If you choose to break one of the rules of our community take notice we suspend all the rules of the community until we have disposed of you."

Every citizen of this State has the right to speak his mind and to canvass his convictions amongst his neighbours. No citizen of this State has the right to enter into a conspiracy with a foreign government to overthrow the Government of Ireland and to deliver this country into the hands of a stranger.

I challenge the Minister for Justice to contradict me now that the popular rumour in this country is true, that the I.R.A. as functioning in this country at the present time has availed of Nazi support and has been availed of by the Gestapo to prepare this country for conquest, if and when the Nazis want to invade us.

These matters are outside the scope of the order.

They are not.

I am describing the conspiracy against which I am prepared to invoke this order.

The conspiracy cannot be brought in under this motion.

The Taoiseach had to deny popular rumours on the wireless. We are not going on rumours for evidence.

The Deputy is going to hear me whether he likes it or not. The day has not come when we cannot raise our voices in this House. Let the Deputy get up and champion his new friends in this House if he wants to.

The Chair will not hear the Deputy if he is not in order.

Do not let us destroy the rules of order in this House. The Supreme Court having said that they have no power now over any matter concerned with the liberty or the rights of the people, when these liberties and these rights and their defence are raised here in this House, and when we are discussing additional powers for getting order into the country, preventing dangers arising in this country, surely every single aspect of possible danger is bound to be discussed in this House. I submit that no rule of order that could be quoted to this House would choke down or diminish in any way any discussion of any of these matters, no matter how fantastic they might be.

The Chair is not going to allow anything fantastic.

I withdraw the word "fantastic" but I think that any reasonably possible ground of danger that there is—and we are not all children—ought to be allowed to be discussed in this House on this order.

This motion is very specific and the debate ought to be kept within specific limits.

This motion moves to annul an order, and the grounds advanced by the leader of the Labour Party is that there is no danger present which would justify the suspension of the law of evidence. The Government has made a certain case in defence of this order. I think they have made a very poor case. I am saying that I am going to vote against the Labour motion, not on the grounds of what the Ministers have said, because they have not said what I believe to be the truth, but on the grounds that I myself believe and even know to be the truth. Now, surely, I have a right to communicate those grounds to this House.

I am convinced that the present menace to this State is due to the contact established between the I.R.A. and certain cognate bodies with an outside power. One of the reasons why I have said in public again and again that Nazism and Communism must be extirpated from the world is because it is part of their technique to come into a decent community and break such rules as they want to break and take advantage of such rules as they think they can take advantage of. I say that if a democracy is to survive in this world—and we are a democracy —when they come with that aim to us our answer should be: "The day you break the first rule, we suspend them all and let the best man win. And when we have disposed of you and restored democracy and freedom and decency, then decent men, good, bad or indifferent, can live together again under the rule of a decent Christian dispensation which acknowledges the duties of justice and charity amongst men." That is the position with which we are confronted now and it was the duty of the Government to tell this House those facts.

I would only say that if the Government was as free to exaggerate as the Deputy we could make such a case but we wanted to keep strictly to what we wanted it for.

That is it. The great thing is that the last people in the world to be told the true nature of the danger with which we are confronted are the people themselves. The Government think it is not good for them to know. I do not take that view.

I do not like to interrupt the Deputy but I would like to say at this point again that the Government is asking for the order on its case—on its case—and not on any exaggerated case made by any Deputy.

Exactly. The Minister for Justice said here to-day that certain organisations had established contacts and sought to bring outsiders into this country. By his leave, before he sat down, I asked him if he would tell us what that meant and he said he wanted to add nothing to it. When the Taoiseach finished speaking, I asked him if he would be good enough to tell us what that meant. He spoke for some minutes, and I do not doubt that every Deputy realised from what he said and from what the Minister for Justice said that it meant something, but that they did not think it expedient to say it. Very well; they are the judges of that. If they do not think it expedient to say it, very well; they have to answer for that to their own conscience, and maybe they have reasons which exonerate them, in their own judgment, from that duty of speaking. I know of no such reasons on my side. Every individual Deputy who votes for the suspension of all law of evidence in this country ought to have a reason. There has been no reason vouchsafed by any Government spokesman to-day, vocally, clearly, which would justify any sane democrat in surrendering the safeguards of the laws of evidence as we are here asked to do.

I am going to vote against the Labour motion, and I think it is right to tell those who want to know why I am going to vote against it. I would not vote for an emergency order of this kind if I were not certain that the alternative would be to put my country in real jeopardy. I do not believe, and I have never believed, that the gun-bullies of this country were any match for Parliament. If the Parliament of this country had a strong resolute Government for the last ten years, the gun-bullies would have been chased out of the country long ago. Powers of this kind would not have been requisite for a strong Government, supported by a united Dáil to deal with any gang of blackguards in this country who sought to establish intimidation as a legitimate public weapon. But when that gang turns to forces outside, this country who have reduced the art of corrupting, destroying and over-running their neighbours to an exact science; when I see the agents of that country land in this country and go into constant council with the blackguards; when I see them assist an organisation in drafting and publishing documents designed to prove that the chosen Government of our people consists of murderers, saboteurs, agents provocateurs, perjurers and criminals, with the implication that “it is time you got rid of all this dross of popularly-elected leaders” and the conviction in my mind that there are individuals in this country who would willingly play the part of Quisling, if they got the chance——

Not at all. The Irishman is unpurchaseable.

——I say the time has come to fix these gentlemen with notice, and their friends with notice, that, deadly as their intentions may be against us, they have started their tricks in the wrong place and that we value our liberties sufficiently to suspend them, if that be necessary for their permanent preservation. I am not voting for this order because I am convinced by the Taoiseach's rambling discourse on what is desirable in regard to the law of evidence. I am voting against the Labour motion not because I think with the Taoiseach that it is a good thing to amend the law of evidence and that there are a lot of things in the law of evidence that might be very well got rid of. I am voting for this order with my eyes wide open, in the belief that I am putting in the safe keeping of the Executive Council, whom I distrust, with great trepidation and grave apprehension, most valuable guarantees of the personal liberty of every one of us, but I am doing it because I am convinced that the alternative is to fix those who seek the destruction of our country with notice that we are too weak, too divided in council, too vacillating and silly, cogently to face them and effectively to destroy them. Every country in the world is at present threatened by the loathsome corruption of Nazism and Communism whose techniques are the same.

The Deputy must realise that these matters are outside the scope of the debate.

And Imperialism.

In every country they enter, they find their dupes. In every country they enter, their primary desire is to destroy the existing institutions, in the hope that the masses of the people will turn to their dupes in the hour of anarchy precipitated by their activities. I am convinced that, with the assistance of the Irish Republican Army, a similar attempt is being made in this country at the present time. I believe that this power is requisite effectively to deal with that attempt and if these powers, and greater powers, were necessary, I would give them to the Government for that purpose. The reason I hate these two systems is that their incursion imposes upon us who love liberty the necessity of sacrificing that liberty temporarily in order to defend ourselves against them. The reason why decent men cannot live in a world where those two systems still obtain is that decent communities are for ever threatened with infiltration by these loathsome poisons and the subsequent necessity of legislation of this kind until they are extirpated from our midst. I see that infiltration threatened here. I did not choose the present Government; I had no responsibility for its personnel; I have no confidence in its judgment or wisdom; but, whatever I think of it, it is the legitimate Government of this country, chosen by the Irish people in as free an election as it was humanly possible to hold, and so long as it holds that position, it governs this country by the authority of God. That authority must be upheld by every good citizen of this State against all comers, no matter whence they come or how they come, and only the foolish will be deceived by the exterior presented by these agents at present. Only the foolish will close their eyes to the fact that old loyalties and old associations are being availed of to cover up the true nature of the attempt at present being made. In every country upon which the disaster of Nazism and its Quislings has come, there have been the dupes who believed——

The Deputy must understand that we are not discussing European politics.

In every country in which that danger has manifested itself, there have been dupes who did not recognise the agents of that gospel in their midst, who thought they saw in such agents the traditional patriots of their own country—possibly the misguided patriots, possibly the extremists in the sphere of patriotism in their own country—and in every case they have learned too late, when their institutions were undermined and their defences destroyed, that far from being genuine patriots they were merely the agents of a foreign Power that desired to dominate them. Let the Labour Party take earnest care that it is not being made the cloak for similar agents in this country.

The Deputy was being made the cloak for bringing people, and it is not his fault that they were not here long ago.

Let the Labour Party consider well: are they, in fact, defending freedom in this country, or are they seeking to protect the freedom of individuals who only desire to use it for the purpose of denying liberty to us all for all time?

Speak for yourself now.

That is what I am doing. I am asking individuals in the Labour Party to accept the same responsibility and to speak as freely then.

Would it not be very helpful if the Deputy were to take some of his own advice?

I hope I am taking my own advice, and I hope the Labour Party will face this problem as honestly as I. I want to remind the members of Dáil Eireann that, whatever the Taoiseach says, this is no light action to consent to this Emergency Order. We are sacrificing that which is very precious. I understand from the Taoiseach, and I accept his word, that he regards the endorsement of his order as a purely temporary thing which will come up for review at a later date. Nothing could be more disastrous than for members of this House to imagine that there is any justification for a permanent acceptance of anything in the shape of this order. It would be a hideous blot upon our institutions if such a thing were contemplated. I am prepared to support this order as a temporary expedient to meet the dangers that are existing at the present time. We must get rid of this order as soon as we possibly can, but we must be ready to enforce it and any other order that may be necessary rather than allow the enemies of the continued independence of this State to have their way. For those reasons I am prepared to support this order. In my judgment, they are the only reasons that would justify support of it. The Taoiseach declines to admit of those reasons, but I believe that he knows them just as well as I do.

I would ask the House to take me on my statement.

I believe he knows those facts as well as I do, but does not choose to state them. Whether he told his Party in confidence more than he told us here to-day I do not know, but if he can get his Party to walk into the Lobby with him on the information and argument that he put before this House alone, without any confidential information, then his Party are an even poorer lot of men and women than I had thought them to be. I know the facts, and Deputy Davin knows the facts, I believe, and from my knowledge of the facts and from my belief of the true nature of this situation, I am going into the Lobby against the Labour motion.

Give us the facts.

I have given the facts, and when I have given them to you, you deliberately stick your heads in the sand and run away.

Have you any evidence?

I have evidence that satisfies me, and I believe the Deputy has evidence that satisfies him if he would only get up and tell us. There is no one in the House knows it better than Deputy Davin.

I do not know the Deputy's reason for making that suggestion.

I know, and the House knows it now, and the sooner the country knows it the better it will be for our people and for the country. God grant that the country will not be given too hard a lesson in learning the information that they ought to have to justify the passing of this order. God grant that they may hear it before irretrievable damage is done to this country as a result of withholding it from them. I could not vote for this order without stating my grounds to Dáil Eireann, and I have done that.

I will vote for this order, and for any other order that I am satisfied is requisite to meet the peril that confronts us now. No other justification could possibly be adduced for an order of this character, and the Government, in failing to tell the people and the country what I have told them, have, I think, fallen short of their duty. I trust that, before this debate concludes, some member on the Government Benches may get up and tell the country and this House what they ought to know: the reasons why it is desirable and imperative that this order should be made. I believe they are doing a great wrong in withholding from the House those facts, because by doing so they may be deterring certain people from voting against the Labour motion, people who, if they knew the truth, would vote against it. They may create the appearance of doubt and disunity in the face of this peril for the want of telling this House the truth that this House ought to know. The passing of strong measures for dealing with a peril of this character should be a notice to all-comers that we are united in attacking them. If we advise all-comers that whatever their allies may be, however powerful or formidable they may seem, a united Irish people will resist them and ultimately destroy them within this country, many a one may be deterred from trying it on. But, if a doubt is once created as to our common resolve to face this kind of thing resolutely, many a one may be tempted to give it a chance. We have said this once before to the Party opposite, that if they would act resolutely in time many a young fellow who is dead in his grave now would be alive and well. It was the irresolution and cowardice of the Fianna Fáil Government that led into the ranks of the murder gangs in this country many an innocent boy who would never have touched them if he had learned from his youth up that the Government was determined to trample down activities of that kind. I am not going to name names, but there must be present to the minds of many of us men who are now in prison graves because, during the lifetime of the present Government, they were led to believe that the best thing to do was to join the I.R.A., and it was only when they had hopelessly and irretrievably committed themselves that they learned to their consternation that the penalty for I.R.A. activities was death, and that the penalty of getting out of the I.R.A. was murder, and so they met their deaths because they were arrested for partaking in activities into which they were seduced by the weakness of the Government that we have in office at the present time. If this Government creates the slightest doubt in the minds of certain elements in this country that it is afraid to offend any organisation in this country which is supported by Nazi agents, individuals may be seduced into committing high treason who would never dream of it if they knew that, as long as this country was governed by the Irish people, the penalty of death would be visited on treason, no matter in whose cause that treason was undertaken.

There is a solemn obligation now on the Government of Ireland to tell all comers, no matter how powerful their patronage, that treason is treason and its penalty is death. If that is not made clear now, we may see boys made amenable for treason who have been led into it by the conviction that under Nazi patronage they were free to do what they pleased. That is one reason why it is so vital that the truth should be spoken now. Why cannot it be spoken? Why cannot we state the truth? Is it any insult to anybody to say that we will not tolerate interference in our internal affairs by any foreign power? Is it unjustifiable to recognise a fact that we all know, that we have read in the papers—that Nazi agents have been dropped in this country by parachute and are at present in the custody of our Government?

English agents are here, too.

If they are here, let them be named to the Government. If there is any agent here seeking to undermine the legitimate Government of this country, wherever he comes from, let him be named to the Government and dealt with accordingly. If Deputy Hickey knows of any such agent, let him name him, but let us have no vague charges. I say that Nazi agents have been dropped by parachute in this country, have been apprehended by the Government and are in custody. Here is no vague charge.

Does the Deputy not know that British agents were caught here, too?

I say that Nazi agents were dropped in this country, have been apprehended by the Government and are in custody, and are well known to have been in active collaboration with the Irish Republican Army. Does anyone challenge those facts? If they are not challenged, why do not Deputies and members of the Government face those facts? What is the wobbling about? Do Deputies think that persons who engage in activities of that kind should be allowed to go on doing that kind of thing so long as they are able to intimidate witnesses and frighten juries, or do they think that once we know activities of that kind are going on—that juries are intimidated and the due process of the criminal law held up—we ought to be content to sit down under that, or ought we to say: "We will run you to earth and trample you down, whatever you do"?

I say we should answer it now without hesitation, without doubt, not only for the sake of our country's independence, though that would be enough, but because we have another duty to the people, and that is to make it manifest now and for all time that any person who walks into treason, whoever his patron may be, walks into the jeopardy of death, and this House is prepared to take whatever steps may be necessary to bring the traitor to justice and to impose the supreme penalty. That ought to be said now and in no uncertain voice, and then those who contemplate selling their country will know they are selling it and that they are not doing their people some kind of service by presenting them with some sort of new order. Let us tell them now that if there are to be any new orders in this country they will be issued by the Irish people through their elected Government and through nobody else, and activity of a kind directed to bring new orders into this country with the assistance of the agents of foreign Governments is treason.

This order is designed to meet that treason and, if the order should fail to control that treason, then further and stronger orders will be made, and whatever rules they break in the hope of using our institutions for covering up their treason, we are prepared to suspend all rules, if that should become necessary, in order to bring the traitors to book. Is not that a good case for this order? If that case were made for this order would the Labour Party persist in their motion? If the Government make that case for this order will the Labour Party stand over their motion?

The Government might say that you are exaggerating.

If the Government make that case will the Labour Party withdraw their motion? The reason they are persisting in their attitude is because the Government will not tell them the truth. I have told you the truth. If you do not believe it now, some day facts will be brought to your attention which will confirm all that I have said, and on that day you will come to realise that in putting down this motion you have been made the dupes of persons who desire to make slaves of you, just as they desire to make slaves of the rest of us. Thanks be to God, there are enough men left in the country who will not allow themselves to be duped and who are prepared to meet conspiracy when they see it, take it by the throat and hang on until it is strangled.

We in the Labour Party know what the truth is, just as well as Deputy Dillon. Deputy Dillon or anybody else need have no doubts as to where the Labour Party stand so far as the independence of this country is concerned. If anybody could be charged with such treason as Deputy Dillon refers to, it is Deputy Dillon himself. I can charge Deputy Dillon with being guilty of treason inside this House by advocating an alliance with one of the belligerents. I say that was just as much treason as the type of treason he has referred to. Deputy Dillon is not clear of treason any more than the people he had in mind when he was speaking here this evening.

Such personalities do not help debate. Deputy Dillon was quite within his Parliamentary rights and in order on the occasion referred to.

Deputy Dillon imputed that the Labour Party are the dupes of other people. The Labour Party have always stood for a constitutional form of Government, and we always fought against the people who tried to upset that form of government. We have been accused of taking up an unpopular attitude and we have been taunted because we did not apply ourselves to physical force methods. We are keen on preserving law and order and, so far as defending the country is concerned, the Labour Party and the working class people were always in the front line and always will be if ever we are needed.

I hope this order will not be put into operation in the form in which it stands, because it can be applied to many things other than what we are told it will be applied to. We got certain guarantees from the Government Benches when the Emergency Powers Act was introduced, and we were told that it would not be applied in certain directions. All these promises have been broken, and I feel that this order can be applied to many more things than we were told this evening. I heard a Fianna Fáil Deputy referring recently to the danger of agitators going through the country advocating higher wages for agricultural workers. That Deputy regarded it as almost a criminal thing for anybody to advocate higher wages for agricultural workers while the country was going through a crisis. I am afraid that type of mentality is too prevalent.

I appeal to the Government to annul this order and to rely more on the loyalty of the Irish people. I heard Deputy O'Sullivan saying that it was a sad reflection on the Irish people that we should have orders of this kind after 20 years of native administration. I heard Deputy Costello making a very interesting speech, and I listened to the Taoiseach and the Minister for Justice quoting the law and mentioning criminals.

I want to say here, and I do not say it in any boastful way, that I yield to no man—even Deputy Dillon—as far as my regard for law and order in this country is concerned. I believe that what is wrong in the world to-day is that there is no regard for moral force, and what is lacking all over the world to-day and in our own country is that there is not that moral force that should guide everything we do. I will not agree with or stand over the statement or suggestion that the people of this country are in any way criminal in the sense that we use the word "criminal". I want to emphasise here, as I tried to do earlier this afternoon, that if the foreign interference that actually exists in this country were removed, none of these orders would be required here at all. If that interference by a foreign Power were removed from this country the men that we have behind barbed wire to-day would not be there nor would we have the disorder, which I do not stand for, in this country to-day. If that foreign interference were removed I believe that we would have no need to meet here this evening to discuss Order 139.

I want to put the blame in the right place, and I say to Deputy Dillon that I am in very great disagreement with him on the point that anybody in this country is allying himself with any foreign Power, other than the British Empire, which is the cause of all our trouble here to-day. We are free, as the Taoiseach says, in Twenty-Six Counties of this nation, but in the Six Counties you have idealistic young people who got inspiration from men in this House as far as nationality is concerned and the complete independence of this country is concerned, and they are not free there, and while I say that I deprecate and do not stand for disorder and murder, the reason we have that situation here is because of the interference of a foreign imperialism, and that is the imperialism that Deputy Dillon was afraid to mention. That is the imperialism he should have mentioned instead of referring to Nazism.

I hope the Government will not pass this order as it is, and I have as much thought about trying to do the right thing as anybody else. Even though I am a Party man I am prepared to express my views both inside the Party and outside it, and I hope the Government will not pass this order. I want to say, in conclusion, fearing that Deputy Dillon has any doubt about it, that we do not stand for interference from any kind of imperialism, whether Nazism or British Imperialism or anything else. We want this country free and we will be as loyal as anybody else, and perhaps more so, but when you try to extend this order to some people, I should like to see it applied to a man who went from the other House across the Atlantic to tell the people there that we should take part in the war on behalf of British Imperialism. I claim that such a statement made in another country by a member of the Seanad was treason to this country.

The Deputy should refrain from criticism of members of the other House.

With all respect, Sir, Deputy Dillon got away with it, and I think it is not fair that we should have any misunderstanding about it.

Unfortunately, I did not hear most of Deputy Dillon's speech.

You were lucky.

I think there was a very elevated standard of discussion during the afternoon on this very important motion, until the strange intervention of Deputy Dillon.

Deputy Keyes might revert to the standard he has praised.

Excuse me, Sir, but I trust——

The Deputy was up three times and I will not yield to him.

On a point of order. The written word, Sir, is very different from the jocular observation, and I trust that you do not wish to appear in the Official Reports as taking the view that any remarks I made diverged from the usual standard in this House.

I was present only for Deputy Dillon's peroration, which did not seem to be strictly relevant.

But admirable in content?

On the content I have no comment to offer.

Up to the intervention of Deputy Dillon, I repeat, there was what I considered a very common-sense and high standard shown in the debate on this very important motion, whether for or against, but the minds of Deputies have been considerably confused since that intervention, because the Deputy started off with the most trenchant denunciation of Order No. 139 that had been given in the House from any side, and finished up by promising to vote for it. In between, he gave the justification for this wonderful, wild-cat tumble that he was doing, and in doing that he lectured us on all sides of the House, the Government on the one hand and the Labour people on the other, on all the sins of omission and commission which would not have been necessary at all if the Government had been a Government. The Deputy said that it was a perfectly ridiculous thing for the Labour Party to introduce this motion, and he told us that because he hated the order and absolutely detested it, and because he was a liberty-loving man, he was going to vote for it. So, with all this clear-thinking we had a second edition of the famous neutrality speech. However, I am going back to the motion, and I and the members of my Party have not been convinced by the Taoiseach or the Minister for Justice of the necessity for this order being promulgated at this juncture.

Hear, hear!

In saying that, we are going on the simple grounds that we are citizens of this country, jealous of preserving its peaceful institutions and protecting all that it stands for in the way of ordered government. We are simply boiling the thing down to an issue: Is the Government faced with such a problem for the maintenance of peace and order in this country that no other weapon is left to them except this order? I think that that is the real issue and that the introduction of outside issues is perfectly beside the point. The Taoiseach, in making the case for the order, said that he had full confidence in the wisdom of the tribunal or of the judges of the military court, and he asked a question as to the confidence of the country.

In the first place, I would not be inclined to have as much confidence in the ability of a military court to perform the functions of the trial of citizens as I would have in the case of legally-trained gentlemen of the judiciary, because there is a big gulf between them, but if the occasion should arise that the choice would have to fall on military men, then I think that they should get all the assistance possible to help them to perform their functions normally and fairly as regards the citizen. I say that the Government is not fair to the tribunal in this order that they are making now, but notwithstanding whether it is a military or a judicial tribunal, evidence will still have to be one of the ingredients in the trial, and a tribunal of the character of this military court ought at least to have the advantage of the best quality and type of that ingredient, evidence. What do we find, however? Under Order No. 139 the protection that is given to the quality of evidence by judges in the High Court, the Supreme Court, and other courts, is being withdrawn from the military court, and they are to be asked, instructed, and commanded to try individuals on a type of evidence which would not be admitted by the other courts of the country. I say that that is not fair.

The Minister for Justice has told us that the submission of evidence is not the only item or function on the part of the tribunal, that there are others, and that they need not be influenced in their decisions, but it has not been challenged by the Taoiseach or by the Minister for Justice that under the order evidence can be accepted which does not happen to be even signed by an absent witness, and that it has only got to be acknowledged. We pressed to-day for an interpretation of that, and elicited from the Minister that it only means that a police officer would ask somebody if he wished to make a statement, and take it from him.

That is not signed. There is no mark whatever made on the paper to indicate that it had been so made. A police officer has only to come to the tribunal or court at a subsequent date and say: "Here is a statement which I took from X. I have no signature to it, but it was acknowledged by him to be correct when I read it over." The said X may be non-existent; he may be dead or he may never have existed. Because his body has not to be produced, he cannot be cross-examined, and the court is bound under the order to accept that evidence. The Minister says that that might not influence them to any great extent, but I suggest that the gentleman who found this imaginary witness might find another one. If he were in a convenient "snug" in a convenient "pub", throwing drinks around, he might get statements and produce an array of imaginary witnesses who, in fact, had no real existence as far as relation to the case is concerned. Surely to goodness the Government cannot ignore that point. Surely there should be some means of getting hold of the man who made a statement which may perhaps result in the death of a citizen. I am not defending any man who is guilty of murder. I want to see that man brought to justice, but when we are applying a remedy surely it ought not to be outside the scope of the Government and its advisers to couch orders in such a fashion as not to endanger the safety and interests of the community as a whole for the sake of getting at the evil doers. The Taoiseach said that it is an absolute certainty that all the guilty persons must be allowed to escape unless this order is passed. I think that is a terrible vote of no confidence not alone in the citizens of the country as a whole but in the judiciary, in his legal advisers and in the special criminal courts. All have absolutely failed, and all guilty persons will get away? He says he deplores the fear that any one innocent man might ever be found guilty, but on the other hand you have the certainty which he mentioned. How on earth the Taoiseach arrived at that course of reasoning I do not know—the certainty that all guilty persons must escape.

I hope I did not say "all". It is possible that I may have used it, but I hope not. I am sure I did not say "all".

Well, I accept that. That is the gist of the points I wish to make, that what has actuated the Labour Party in putting down this motion is the fact that, while we are prepared to go a long way, as far as is necessary, for the preservation of peace and order, we do believe that there ought to be a limit. In the inclusion of Section 5 at the end of the order, scrapping completely if necessary all laws of evidence, I do suggest that the Government themselves will have to admit that they have gone an extravagant distance, a perfectly unreasonable distance, to rob citizens of every right to protection whatsoever, leaving them at the mercy of evil-minded persons. There is real danger to innocent people there, exposed to the risk of trial on unsubstantiated evidence, in courts where all rules can be set aside. Without any difficulty whatever, and without any malfeasance on the part of the tribunal, innocent people may be condemned to death on the unsupported evidence of unseen witnesses, because they have no rules whatever to guide them. Spurious evidence would have to be accepted, evidence of a character and quality that would not be admitted in a legally constituted court. I suggest that that is one of the greatest flaws in this order, and it is one so grave in its scope that the Labour Party is challenging the order and will vote for its annulment.

I think I can safely say that nobody can accuse me of having any sympathy with any law-breakers in this State. I think that everybody—certainly everybody who has been in the House for some years —knows that the forces of lawlessness have no stronger opponent than I. There are many members in this House who recollect that night after night in debates on the adjournment I asserted the principle that the law must be supreme, and that no man had the right to change by force the laws of this country or the Constitution or status of this State. I make those opening remarks because I wish that my attitude should be clear, and that, when I vote, as I intend to vote, for the Labour motion and against this order, nobody can say that my vote has been influenced in any way by sympathy with wrongdoers or sympathy with crime, or, above all, by sympathy with murder.

When I come to consider this order, I must have certain considerations before my mind. Number one, it must be just; and number two, it must be efficacious. Neither of those two things, in my judgment, does this order meet. To my mind, and I have given the matter very careful thought, this order is not just to an accused person and, to my mind, this order is not, and cannot be, in any way efficacious towards putting down the forces of crime. I say, firstly, that this order is not just. The Taoiseach, in his speech to-day, dealt at considerable length with the laws of evidence, and a commission upon evidence, and the admissibility, under our existing laws of evidence, of statements made by accused persons. I do not say that the present laws of evidence here in this country are sacrosanct. I do not say that they cannot be altered. I do not say that they are the only possible rules of law under which justice can be achieved, but I do say that if you sweep them away, if you abolish them, you have to put something else in their place; you have to put something better or something as good in their place. But what have you done here? You have swept them away and you have put no substitute there at all. What you ask this House to do is to vote that men on trial for their lives can be tried by a court which is bound by no laws of evidence of any kind. That is not substituting one law for another. That is substituting anarchy for law, and it is to that substitution of anarchy for law that I object. It is the substitution of anarchy for laws of evidence that I object to and that I say is unjust. A man cannot be justly tried under this code. In my opinion, it is a fundamental principle of the law that every man who is accused must receive a fair trial. In my judgment, no man against whom that order is invoked can receive a fair trial.

Let me take the order. A man may be accused. He has got no chance when this order is invoked, or his counsel, if he has a counsel, has no chance of sifting the evidence brought against him, and the court has got no chance of deciding whether the evidence is true or untrue. A written statement is brought in. The court has to decide whether that statement is true or untrue. How is the court to do it? I do not know. How is anybody, when he sees a written document before him, to say whether that document is true or untrue? When a witness goes into the witness box, he can be cross-examined. He can be asked what his character is. Very often it depends a great deal on whether a man is of good character or bad character whether a court will act upon his evidence. Very often when we cross-examine a witness the first thing we do is to cross-examine him as to his character. But here the court is left in complete darkness as to whether a man who makes a statement is a man of good character, or whether he is a man of bad character. Secondly, witnesses lie in court. It is a difficult thing, but every court must do its level best to decide whether a witness is telling the truth or whether he is swearing falsely. He is cross-examined. There is the question of his demeanour. Various questions may be put to him which will show that his story is untrue. Questions can be put to him to show that he was miles away from a place where he swore he was. But under this order, none of these things can be done. The person cannot be cross-examined. If he is a difficult witness, or if the police think he is a witness that might breakdown under cross-examination, then you may be perfectly certain he will be kept away, because he can be kept away under this order.

Then there is another matter. Some of these statements may be taken by the police, but they need not be taken by the police. Any statement made to any person may be taken down in writing by that person, who may ask: "Is this true?" or who may say that the person making the statement said: "This is true." But let us take even a statement made to the police. The policeman puts questions and he writes down the answers consecutively. The Guard who is putting the questions puts only such questions as he thinks are helping the State case. Therefore he gets from every witness what is very largely a one-sided statement. At the trial it is open to the accused to bring out the other side of the man's knowledge, so that a complete statement may be made before the court. There is no such possibility here. There is a case which I have very often quoted to a jury when defending prisoners. I am not going to give the exact wording, but in the case of the Queen v. Thompson the judge's remarks were to this effect: "It is astonishing that very often a man, because his conscience pricks him, will make statements to the police, but, when he comes into court, his conscience has ceased to prick him and, when he is on oath, he denies those statements." If that is true of the English police, do not be sure that it may not also be true of a certain number of the Guards.

Again, there is the danger of third degree. If statements are to be made evidence on which men may be convicted, there is a terrible danger of third degree. Third degree did exist in the Guards in this country. I know when I was Minister for Justice one of the great difficulties we had was to prevent third degree being used, because I loathe third degree. There was a case in which the third degree was used to a very large extent. It was the case of the missing postman in County Waterford. Police were decreed in an action for assault by the witness against whom they had used the third degree. It was to prevent the Guards using the third degree that we introduced into Article 2A that clause which made it compulsory upon persons to make statements to the police, or if they refused to make statements to the police, that they would be liable to six months' imprisonment. The clause was inserted solely to prevent the use of the third degree. The chief superintendents were collected and they were told by the then Commissioner: "You must tell your men that, if people will not make statements to them, the law has provided a punishment, and they must give up anything approaching the third degree." In that way, I believe, the third degree was beaten down. But here this seems to me to be asking for the third degree. If a Guard can get a statement by force from an individual, that individual need not be produced in court. Of course it will be said that it was not voluntary. But who is to say it was not voluntary?

The man who made it.

But he will not be in court. That is the point I am at. The only person who will be in court is the Guard.

May I put a question in fairness to the Administration? Is the Deputy suggesting that the Attorney-General would keep that witness out of court?

Why is power asked for if it is not meant to keep them out of court?

Will the Deputy try to consider the point that some of the people may be interested in preventing that witness giving testimony, and may keep him out of court and may use against him some sort of weapons?

There is nothing in the order about that. If the witness is unable to attend, that would be quite a different matter. There is not a word about that in the order and, with great respect to the Minister, it is all nonsense for him to get up and say the Government wants these great powers but is never going to use them. It is nonsense for the Minister to say—as he has practically said now—that this order is to be waste paper, as the Attorney-General will not use it.

What the Deputy suggested, and the point to which I wish to draw his attention, was that the Attorney-General would deliberately keep from the court a witness who is material to the case.

Why not make it compulsory on him to produce him?

Why is that not in the order if it is meant?

But that is not the point.

Let the Minister for Local Government and Public Health draft a new order.

"Notwithstanding that the person who made the statement is not present." He need not be present and no reason need be given for his not being present. Therefore, I say that there would be no method of checking as to whether third degree had been used or had not been used. Let me go on a little further in this order. The reason which I understand the Minister for Justice put forward was that persons are being frightened into refusing to give evidence. That is nothing new. We had it before. I accept, of course, that it is a fact. We had it before, when we had witnesses murdered for giving evidence, and jurymen murdered, too. That brought in Article 2A of the Constitution. How does this meet the matter? He gave a concrete example. There was a man wounded, who gave a statement to the police and then would not give evidence in court. But there was no such law as this one. Suppose that man knew that his statement was going to be raised, whether he went back on it or not, and that the person would be convicted on it: what difference would there be between making a statement to the police in the first instance and giving evidence afterwards? If he ran the risk in the one case, he would run exactly the same risk in the other.

As a matter of fact, the Minister for Justice read in support of his case a document which was circulated in the County Tipperary, which said that anybody speaking to the police or giving information to them was liable to be shot. That seemed to me to be an argument against this order rather than one in favour of it, as that shows that the danger of making statements in the first instance and the danger of giving evidence in court afterwards are exactly the same. This order says that when a statement is made and acknowledged the person who made it need not be named. Suppose somebody says: "Yes, I will give a statement to the courts and will acknowledge it, but on condition that my name is not mentioned." We may find it happening then that men will be tried and all they will know is that the evidence against them is a certain statement made by a Mr. X, even whose name they do not know. For that reason, it does seem to me that a fair trial cannot be had.

I do not wish to attack the military court at all, but a military court consists only of human beings with only human intellects, and it is absolutely impossible for them to decide upon written documents justly, as it is impossible for them to weigh up evidence which is in a written document. The Taoiseach says they may put that aside if they do not think that the document is satisfactory, but how are they to know whether one document or another is the one to rely on? There is no method of seeing the witnesses and nothing is known about them. The court is simply left to guess. I do not believe in the doctrine of guessing men's lives away.

There is more in this order—a great deal more. Hearsay and rumour are completely admissible, and may be acted upon. What is the reason for the rule against hearsay, which has been established by years and years of experience? It is that hearsay and rumour are very often wrong. We hear the wildest rumours, and people entirely believe them. There was the famous rumour at the beginning of the last war, that there were Russian soldiers in England, and that people actually saw them. We hear various other things of that kind. Somebody might be changed for being in touch with the Russian invader on a rumour of that kind. It was not by chance or mere accident that the rule against hearsay was introduced in the English law: it was because years of experience showed that hearsay is thoroughly unreliable. If you have a civil action, say some member of this House were run down by a motor car, the laws of evidence would have to be observed in the case. No hearsay would be admissible. But if a man is on trial for his life, the rules of evidence, the methods of getting at the truth, the methods of deciding whether he should continue to live, or die upon the scaffold, are to be tested by rules far more lax and far less strict than the rules that would be used in the most simple civil action. I do not think that that is right.

I would be willing to give any powers necessary to the Government to deal with crime, but I would have to be satisfied that they were both just and efficacious. I do not believe you will get very many statements, or many more than have been got. If so, you will have to do the strange thing of trying persons without letting them know the names of the witnesses against them. When Deputy Costello was opening the speech to-night, he asked the Taoiseach if this was a special piece of ad hoc legislation. The Minister for Justice did not take up that challenge, but, to a certain extent, the Taoiseach did. His answer —I think I am quoting it correctly— was that these arrangements are made only when the necessity arises. Therefore, it is a particular case which is now for trial which has, in fact, occasioned this order. Now, this order may be efficient for the trial or deal with this particular case. I do not know, but I do think that, if the object of this order is to secure a conviction in that particular case, it would be far better for the country if the Government brought in directly under their powers an order that these men be executed. That would not be entirely unprecedented. The Earl of Stafford, Charles the First's Minister, was beheaded in pursuance of an Act of Parliament—a special Bill of Attainder was passed. If there is an appalling national necessity that certain persons should be executed, I would very much rather see those persons executed by a special order naming them, than to have a farce of a trial and to have the whole system of criminal law in this country brought into disrepute. Of course, remember, I do not believe that there is any such national necessity, and I would oppose such a measure.

It is quite true that you may be dealing with law-breakers, but to law-breakers you still must keep within the bounds of the law and within the bounds of justice. Otherwise, the results will be very far reaching indeed. If you shake the confidence of the people in the courts and in the fact that men are getting a fair trial, you certainly tend to shake order as much as persons using violence against their fellow-citizens shake order. Order in the country can be shaken by enemies of order, but it can be shaken more by a Government than by any organisation which works against the Government. If these persons are to have a nominal trial only, that will shake the confidence of the people in Government, as they will look upon it as the Government facing force, not with the law but with counter-measures. Nothing could be worse for a Government, in my judgment, than anything in the nature of Government reprisals.

I do not see that this order is required. It is bad in itself. In my judgment it is unjust. When I read it first, the order upset every principle I ever had. It caused a feeling of astonishment or, I should say, indignation in my mind, that it would not have caused in the mind of an individual not trained in the administration of criminal law. On the other hand I must remember that it is persons who have had experience of trials, which the man in the street has not got, who really know the effect. I do not think that you will find in my profession at the Irish Bar one person to say a good word for this order. Because I think it is a bad order, it is my intention to vote with the Labour Party. I think it is an order that in itself makes for injustice. I do not think a good trial can be had under it. Because I do not think it would help the Government in any way to deal with any external or any internal conspiracy, or with any organised murder, I intend to vote in favour of the motion.

I must confess that in beginning to speak I find it extremely difficult to make a sudden change over from the point of view that has been bred in me during the last ten days, and the point of view that one must necessarily adopt in this House when listening to arguments coming from the Government on this matter. For ten days there has been a case going through the courts. I attended on every possible occasion on which arguments were being used, and I found that the judges in our courts were being coerced into accepting proposals from which one of them said that every fibre in his being shrank, that he was being coerced by the law into accepting that position, and the reason that he accepted it, and why the whole seven judges passed judgment on it and accepted a proposal which they abhorred was because it was presented to them in the setting of "a time of war".

Counsel appearing for the State, when the case was in the Supreme Court, told us in respect of four men, whose names are in the background of this order, and whose lives are possibly now in the offing, said with regard to the four men that what was being done against them was trial by the Dáil, not trial by the courts, and possibly, swayed by that argument, the Chief Justice said yesterday to counsel appearing on behalf of certain named individuals, that their arguments would be much better addressed to this Assembly than to the courts. The conclusion the courts came to was this: that this thing, being presented to them in a particular setting, they were precluded in one court of the State from dealing with it at all, and in the other State court they were simply allowed to hear it and to refuse it, it being presented as something dependent on an emergency resolution under the Emergency Powers Act, based and framed on the position of a state of emergency in this country—"a time of war".

I came here to-night to find out how the Government were going to connect the order with the trial that is pending, that has been only postponed pending the decision of the courts, and how they are going to connect the trial with "a time of war". The Minister for Justice gave three reasons why the order should be passed. One was that there were certain organisations in this country which tried to involve us with external persons; the second was that there was an explosion in Dublin Castle some months ago; and the third, that there was a leaflet from the Tipperary I.R.A. Deputy Davin asked if the leaflet was dated. I do not suppose Deputy Davin meant any vile innuendo, but there could have been an order introduced by the Ministers 15 years ago. If that order merits execution by a military court, the whole Government should face each other to-morrow with guns, and, when they have shot each other up, the remnants should commit suicide. What is there in that order that they did not promulgate?

Times have changed. What about the Dublin Castle explosion? Is there a case, that if this order about evidence had been in operation at the time of the explosion men would have been brought to book for it and punished? These were two of the Minister's examples. The third one was of an organisation which tried to involve us with outside persons. As I understand the Taoiseach, that is withdrawn as a basis for this order. The Taoiseach does not lean on that argument for this order. What does the Taoiseach lean on? That it is time the laws of evidence were changed? I listened attentively to-night, and I do not think I distort the Taoiseach's argument if I say that every word he said could be used in respect of an ordinary murder trial in time of peace. If that is the situation the courts have been misled, because this order and the other order, as they were both brought into the argument for habeas corpus, were relied upon in the circumstances of “a time of war”. If that circumstance had not been relied upon the verdict of the courts would have been entirely different.

I know that the argument is going to be used, and was hinted at earlier, that this is only a lawyer's commotion, that really there is no layman in the State excited about it, and that it is only because the idols of the profession are being shattered to some extent, that one group of professional people are up in arms about it. If I may become egotistical for a moment, the early years of my life were not spent at law. They were far removed from it. I spent a period in office in this country as a member of an Executive dealing with a very dangerous situation, and there was a period in which we drifted from a time of open civil war to a time when there was a "cease fire" order, but arms were not surrendered. Then there was a prolonged period in which certain people, acting very much like the people against whom this order is said to be framed, were protected by the savour of nationalism and of a great cause. These are circumstances certainly in which I might be expected to grow up somewhat indifferent to the law of evidence, rather keen on the Executive point of view, and conscious of the difficulties under which an Executive labours when there is an organised conspiracy, a very cleverly organised conspiracy to bring the State down.

I lived through that experience and had a short period at law. I had also certain experience in the Civil Service as a member of that body for a short period, and at another period during which I was in very close touch with it, close enough to realise the tremendous drive, the battering-ram impetus, which civil servants can give when a Department wants the way cleared. Without meaning offence to the very eminent men in the Civil Service, I saw the cloistered life they lead and so on, as most of them have been for 20 years in buildings that remove them from the ordinary touch that people might have, and they are much more apt to think of the job that is ahead of them than to think of the repercussions that may come from something they urge on the Government in order to get them out of a temporary difficulty.

I have no super-regard for the laws of evidence, but we have been brought up to live under the laws of evidence, and we were presented with this Constitution as a magnificent charter of our liberties, as something which would safeguard our rights, something which would enable the Government of the day to vindicate the rights, liberties and freedoms of the people. The acid test of any constitutional document is how far it is easy to read it, so that the people can understand what their rights and liberties are, and how far it prevents these liberties being filched away by easy amendment of the Constitution which guarantees them; how far, apart from that extensive encroachment that might be made in the way, does it prevent the Government of the day from slowly sapping and undermining the rights that have been written down in the Constitution; how far is there to be a body of independent people set up outside to prevent executive action, a body of people who will not have the same mentality as the Executive; people who will not be disposed to look merely at the difficulty immediately ahead but who will rule by a charter. This was supposed to contain all that.

That is the rule of law we are living under in this country, a Constitution which writes down the liberties and the guarantees in set phrases, a Constitution which is rigid enough to prevent easy-going amendment within the period we have reached, a Constitution which set up judges according to old-time standards, gave them their position, fortified and buttressed them in their power, gave them every reason to be independent and prevented them from being attacked in their independence, status or emoluments.

Under that Constitution we were to elect men of independent mind, men trained in the law, men who would be vigilant to see that evidence when brought forward would be properly applied and that people would get their rights in any cases that came before them. We removed these men as far as words and phrases in the Constitution could do it from any control, from any suasion or power on the part of the Executive, and courts were established with ordinary rules, rules that were hammered out over the centuries, rules that have in the main met with approval not only here but in Britain and in other countries. It is not a very forceful argument to say when trying to demean these regulations that it is a pity we had not time to examine the codes in other countries to find out how the rules had worked, leaving the impression that something was weak and not wholesome in the origin of the rules. They are rules that have stood the test of time, rules that have been examined. They were recently examined by the commission to which the Taoiseach referred, and notwithstanding his reading of selected excerpts from some evidence, that commission, I understand, reported against any change. The latest body to examine them reported against any change.

I could open that Constitution at five separate parts and, reading certain paragraphs, could ask this Dáil to say whether there did not seem to be provision in that Constitution to meet every abnormal situation that might arise. The Constitution has to deal usually with ordinary normal cases. They are dealt with by the judges in the courts, as I have explained. Take the abnormal situation. There was a statute passed by this House called the Offences Against the State Act. In its newest form it permits of two things: firstly, that on the Government issuing a proclamation that the preservation of public order and peace demands it, they can set up special criminal courts. These courts are composed of officers of the Army. Before these special criminal courts they can send people charged with certain scheduled offences and the Government can add to the schedule of offences as numerous a list as they like. Furthermore, apart altogether from the list of scheduled offences, the Attorney-General, in respect of a particular offence alleged against a particular individual, can say that, in his opinion, that individual should be charged before the Special Criminal Court because the preservation of the State demands it. One would think that that was quite enough, but there is this flaw in that court, that there is an appeal from it and the appeal is to be to a commission on which there is a judge. Therefore we have still some link with ordinary court procedure, even at a remove. There is a judge on it and we have still some touch with court procedure. Under that statute, the Offences Against the State Act, which is now the law sanctioned by our Supreme Court, the Minister for Justice, merely by filling in a warrant, a facsimile of which appears at the back of the Act and which is almost foolproof, can send a person to internment for any period he likes. Nobody can move to get him out. That is the provision we have already in the State to deal with abnormal situations.

If this country is invaded, the Constitution provides that the Government can do anything it pleases, subject only to the provision that it must call the Dáil in session, if the Dáil be out of session. In these other paragraphs, all those who are members of the Government are enabled in a state of war or armed rebellion to send people before the type of court known as a drumhead courtmartial. There is a fourth situation that should nearly glut the heart of any man who is hunting criminals and prescribing certain offences. By Government order, you exclude the courts, you exclude an independent tribunal, and you send people before your military court. Do not bother about the courts; let the Minister for Justice sign a declaration simply stating that in his opinion somebody should be put away for an unspecified period, and that person goes to a detention camp and stays there until the Minister releases him. Therefore, let the two grave situations, a possible invasion or a state of war, dawn upon this country, and the Government is well armed with all the powers they require against these eventualities.

In between these four situations we have a fifth, the ill-defined territory that has not been properly explored yet by the courts, the situation met by Article 28 of the Constitution and that occurs in what is called a time of war. This House has been unwittingly guilty of a very far-reaching extension of that particular phrase: we so amended it as to meet the present situation, a period in which this country is not involved in war but in which there is a war raging outside the country causing certain complications here. In that period, it is open to the Government to pass legislation expressed to be for the purpose of protecting public safety. Under that piece of legislation, anything they do or purport to have done is free from all the sway of the courts. Nobody can go to the court with any hope of succeeding against the Government in anything they do under such a piece of legislation. Under such a piece of legislation, so passed and so protected, we have this order.

Now, we are well away from the courts. There is no question of going before the judges, no question of going before people who are put in an independent position and preserved in that independent position, no question of going before people who are outside the clutches of the Executive. Whether that clutch will be fastened on them or not remains to be seen. There is no question of going to these people, once that emergency powers law is invoked and the Government establish these courts. The members of these courts are members of the Defence Forces, men who hold their ranks and positions in the Defence Forces at the will of the Executive Council, men who can be removed at once. I shall be told that they are not going to be removed.

What then was the meaning of all this careful building-up of the system of courts? What was the object that even countries other than this laboured so much to achieve, in seeing that judges were fortified in their positions, that you got the best men and that you put them beyond the reach of poverty and corruption, that you put them in a secure position where no member of the Government could sway them? Is that old-fashioned nonsense which we can discard at this time? I assume we have got to that point.

The Minister for Justice confesses that he has different views now on some matters from those which he held ten or 15 years ago. He must be honoured for saying that. I think, however, he goes too far the other way. He has gone almost simple. I say that without offence.

Mr. Boland

You could not do that.

Could not say anything without offence?

Mr. Boland

I am afraid it would be impossible for you.

I am afraid that it is not my fault if some people read into my statements something other than is intended. I think that in this matter, however, the Minister has become too trustful. Under this order it may be alleged that statements which are not voluntary will be taken from people and produced in court but the Minister waves his hand and says: "You can trust the police." An Taoiseach follows that up by saying that in this situation he would rather have three experienced military officers to try cases under this order than to have such cases tried by a jury, even though that jury would be directed by the legal mind of a judge in such matters as the evidence that is to rule. We have gone to a very far point in trust on these matters. The courts in this last week have told some of us who attended these courts that what we are assisting at at this moment is the trial of four persons by the Dáil.

I want to ask the Dáil, before it subjects these people to trial on the particular form of this order, to pause a bit and to see what is the necessity for running this risk at all, to see if there is any necessity for running the risk in regard to four named persons and to consider whether we may not be asked to incur further risks in respect of some situation in the future when three or four individuals find themselves before the courts and when an attempt is made to produce certain matters as evidence either under this order or a substitute order. I move the adjournment of the debate.

Debate accordingly adjourned.

The Dáil adjourned at 9.30 p.m. until 3 p.m. Thursday, 29th January.

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