There is a series of amendments, all governing the same point. They might be debated together but there will be a separate decision on each if necessary.
Committee on Finance. - Emergency Powers (Continuance and Amendment) Bill, 1945—Committee.
Sections 1 to 4, inclusive, agreed to.
SECTION 5.
Would the Ceann Comhairle say in what form separate decisions could be taken on amendments Nos. 2, 3 and 4?
There will be positive decisions.
My point is that if the question put on Deputy Dillon's amendment No. 1 be "that the words proposed to be deleted, stand part of the Bill" there will be no opportunity of taking a separate decision on amendments Nos. 2, 3 and 4.
I think the Deputy is making a mistake. Deputy Dillon's amendment is to insert a new paragraph. If the paragraph suggested in Deputy Dillon's amendment be not inserted, Deputy Mulcahy can still obtain decisions on his amendments. I suggest that the discussion on the whole five amendments should be one discussion as I think that it inevitably must.
I quite realise the position. We shall have to proceed as best we can, but in the debate I should like as much help as you can give me in segregating the idea of public safety or the preservation of the State from the idea of the maintenance of public order. It is suggested in the original Act that these things differ. I am anxious to find out what element there is in the situation which dictated the desire to have a continuance of these emergency powers.
I am anxious to avoid a duplication of debate.
I move amendment No. 1:—
In sub-section (1), before paragraph (a), line 39, to insert a new paragraph as follows:—
(a) by the deletion in sub-section (1), lines 4 and 5, of the words "for securing the public safety or the preservation of the State, or for the maintenance of public order, or".
When we came to consider this Bill, we understood from the reply the Taoiseach had made to a question which I put down last May that it was his intention to spend the period between May and the date of the introduction of this amending Bill, turning over in his mind what were the minimum emergency powers he would require with which to deal with whatever remained of the emergency situation after the conclusion of the European War. No one in this House, so far as I know, will question that there may be an emergency in relation to supplies for the next year or two years and that the Government could make a very strong case if it came before the Dáil to ask for powers to legislate by decree in any emergency relating to supplies that might present itself during the next 12 months.
I have not the slightest doubt that if he came to the House and asked for these powers specifically they would be given unanimously and with very little debate. But when we come to examine the amending Bill submitted by the Government, we discover that in Section 5, which is the first section of Part III, no reference is made to sub-section (1) of Section 2 of the Principal Act. The deletions are made of certain specified powers under sub-section (2) of Section 2 of the Principal Act. Whether the Taoiseach is aware of it or not, sub-section (2) of the Principal Act in fact never had any effect at all, because at a very early stage of the application of this Act, an unchallenged judicial decision was given that nothing in sub-section (2) operated to qualify the general powers set out under sub-section (1). If sub-section (2) were deleted from the Principal Act in its entirety, the Government would be left in possession of all the powers they originally enjoyed under the Principal Act. If there had never been a judicial decision to that effect, surely that meaning is clear on the face of the Bill, because sub-section (2) which sets out all the specific cases in which the Government may seek or take powers begins with these words:—
"Without prejudice to the generality of the foregoing sub-section of this section the Government may do by emergency Order all or any of the following things....".
One can paraphrase that section to read: "The Government may do by Emergency Order all or any of the following things, that is to say..." and then set out all the lettered paragraphs in the sub-section and add: "And may do anything else they may want to do as well". That is the meaning of sub-section (2) and, therefore, to amend the paragraphs in sub-section (2) is to do something which is utterly meaningless. It leaves sub-section (1) still standing by which
"the Government may whenever and so often as they think fit make by Order (in this Act referred to as an emergency Order) such provisions as are in the opinion of the Government necessary or expedient for securing the public safety or the preservation of the State or for the maintenance of public order or for the provision and control of supplies and services essential to the life of the community".
To leave that sub-section standing in the Principal Act, as this Bill proposes, means that the Government retain the power to do everything they want to do and which they had power to do under the 1939 Act. Surely the Taoiseach left the House under the impression that he intended materially to cut down the powers he had under the 1939 Act.
Observe that the Taoiseach himself cannot have been entirely ignorant of the fact that Section 5 of the Bill did not operate effectively to restrict his powers, because, when he came to think of censorship, one of the things he was doing under sub-section (1) of Section 2 of the Principal Act, he inserted Section 6 in this Bill. Section 6 of this Bill is analogous to Section 2 (6) of the original Act. That sub-section contains a specific prohibition against the Government's availing of the powers in sub-section (1) of Section 2 to declare war or to take part in war without the consent of Dáil Éireann.
Observe the distinction. The lettered paragraphs in sub-section (2) of Section 2 have no restrictive effect at all; they are purely illustrative. Sub-sections (5) and (6) of Section 2 respectively and specifically prohibit the Government from using the all-embracing sub-section (1) to impose taxation, to impose conscription, to make provision for trials by courtsmartial or to engage in war. Sub-section (5) was subsequently amended by another Act, but there was a specific prohibition against the Government doing these things. When we come to this Bill, we find Section 6 put in and exactly the same terms employed prohibiting the Government from using Section 2 of the Principal Act to impose censorship.
Were we to pass this Bill, the Government could do anything they liked under Section 2, sub-section (1) of the Principal Act, except—under sub-section (5) of Section 2 of the Principal Act—impose taxation, impose conscription or provide for courts martial and—under sub-section (6)—declare war and, under sub-section (6) of this Bill, impose censorship. So that the Taoiseach himself knew that if he wanted to forbid the imposition of censorship, he had to put in a section specifically prohibiting it. He realised that all his effective powers were preserved in sub-section (1) of Section 2 of the Principal Act, and that, without the prohibitory Section 6 of this Bill, he would have retained power to put back censorship any time he liked; but is it not true that one of the powers the Government have under Section 2, sub-section (1) of the Principal Act, is to amend the legislation of this Dáil? Suppose the Government to-morrow made up their mind that it was necessary, in order to secure the public safety, to provide that a statute of this House should be amended, what is to prevent the Government doing so, and if the Government have general power under Section 2, sub-section (1) of the Principal Act, to amend any Act passed by the House, why could they not amend the Emergency Powers Act to-morrow, if it were necessary to do so?
I believe the whole House would be quite prepared to give the Taoiseach any reasonable powers he wants in order to deal with the supply position, but why does he ask us now to give him powers again over individual liberty, over the right of trade unions to strike or to form associations, over the right of citizens to walk the streets guaranteed against lettres de cachet, against arrest and imprisonment, incommunicado and indefinitely, at the Government's will? What conceivable justification can there be in the present situation for seeking powers of that kind? Remember, he asked them of us first when the European war——
May I ask is this a Second Reading speech?
No; it is not.
It sounds somewhat like it.
All I want to say is: Will the Minister accept my amendment, which reduces the powers under sub-section (1) to the power to make emergency Orders for the provision and control of supplies? If he will say "yes", that ends the whole business so far as I am concerned; I am prepared to give him those powers now. If he says: "Very well; I am prepared to abandon now all my powers. I am prepared to say that between now and 21st October, when we reassemble, I will look into the whole question of the necessity for powers of this kind for securing the public safety, the preservation of the State, the maintenance of public order and services, and I guarantee to come before the Dáil on 21st October with a Bill which will strip me of all those powers under the Principal Act, and which will ask the Dáil for new and specific powers adequate to meet the type of emergency that I will then describe to them"——
Are not those the exact words which the Deputy used on the Second Reading?
I cannot tell you. Once this section is passed, all the rest of the proceedings are "cod". I want to make this point, because it is vital. Deputies in this House seem to forget that the Government is asking us to give them back powers now to do anything they want to do, by Order, which has the force of law from the moment the Minister signs the Order, and, remember, they might be Orders of this character, that a woman in Athlone who is contesting the constitutional right of the Army to acquire compulsorily her house, in which she and her family are living, could be, by Order, and has been, by Order, under this Act, thrown out on the roadside without appeal to any court, without appeal to any tribunal, and, when she sought to say that that is an unconstitutional proceeding, she could be told: "The Constitution cannot be cited to counteract any Order made under this Bill".
When we were faced with the emergency precipitated by the European War, even in such appalling circumstances we gave those powers with profound reluctance, and, as I understand it, on the clear undertaking from the Taoiseach, given on his personal honour, that at the earliest possible opportunity he would drop those powers and return to the operation of the normal law. Now, no one will challenge the fact that the danger of invasion of this country has passed. Why then does the Taoiseach desire to retain over our persons the power that only dictators desire to have in normal times? I do not say that his desire to have those powers during the emergency was in any sense evidence of dictatorial designs or desires. I think he had to have them. I think every democratic Government had to have them, if democracy was to be preserved in the perils through which it was passing. But now that the peril of active force against this country has passed, why do we want them any longer? Why cannot the Government say: "Here is a difficulty, and there is a difficulty, and we want those specific powers to meet those difficulties"? Why do they not take powers to put us all in gaol if they want to, because they say: "Somebody may give trouble between now and this day 12 months"? Surely that is suicidal. I do not want the Taoiseach to have power to put me in gaol without having the right to go to the courts and plead that I am as good a citizen as he is, and am acting in as public-spirited a way as he believes himself to do. But, if we pass this amending Bill, the Taoiseach can by Executive Order lock me up in the Curragh and forbid me to see a solicitor and forbid me to see my friends. It has been done. And, remember, Deputy Peadar O'Loghlen, of Clare, clamoured that it should be done to me. Will Deputies remember that? It happens to be me to-day, but it may be Deputy Cogan to-morrow.
Does Deputy Cogan remember the time when members of his Party were brought before the Military Tribunal; when his letters were suppressed in the newspapers; when the paper he was publishing was censored because he referred to some matter relating to what he regarded as unfair discrimination in regard to some agricultural produce for which the price had been fixed? At that time, a situation might easily have arisen in which he would have been clapped into gaol, would not have been allowed to speak to any colleague, would not have been allowed to speak to a solicitor, to make any claim of habeas corpus, or to have access to any court. Those powers may be necessary when there is an invader upon your threshold, and many people in this country may want to smile at the thought of an individual Deputy saying: “Those powers may have been used against myself”, but I beg Deputies to realise that, when they are considering legislation in this House and preparing to draft Draconian laws for their neighbours, the first question they ought to ask themselves is: “How would I like it if those laws were applied to me”? Let them not vote for them until they can say to themselves with clear consciences: “Weighing the inconvenience occasioned to myself against the national advantage to be derived by vesting those powers in the Government, I am prepared to expose not my neighbour but myself to that peril”. Are the individual Deputies in this House now, with no danger of invasion, with no threat to our security from any outside Power, prepared to put anew into the hands of the Executive the right to lock them up, without warning, charge or trial, indefinitely, and to prohibit them from all communication with outside persons? I am not, and for that reason I will vote against this amending Bill unless it implements the Taoiseach's undertaking, as I understood it, to divest himself of that power.
I ask the Labour Party to look at the words "and services". The Government may, by Executive act, do anything they think necessary, anything which is expedient for securing the maintenance of services. To-morrow, the Government, by Executive Order, could dissolve every trade union in this country. Under that section, as I see it, if the Government made up their minds that the conflict between the Trade Union Congress and the new body had become too protracted, they could wind up all the unions and say: "They must now follow the example of the national health societies, and all join one union." They could make up their minds that there had been enough wrangling and tangling going on; that they would not stand for it any longer, and that the shortest way to end the trouble was to wipe them all out and create a new body in which everybody might get peacefully along. I say again: "If you have the forces of the Third Reich on your doorstep threatening to burst in and devastate your country, the Executive charged with the defence of the country are entitled to have those powers; it is better to entrust them temporarily to an Executive chosen by your own people than, by withholding that trust, see them taken from our people for ever." I accepted the Taoiseach's word that he would hand back those powers at the very earliest possible opportunity afforded to him to do so. I do not think he has kept his word, and I think he is deceiving himself into the belief that the state of this country is such that no prudent Executive would hand them back. I am asking this House, if this is not the acceptable time for surrendering those rights over the liberty of the individual in this country, if the conclusion of the European war has not created a new situation, what then will ever create a new situation?
What more radical event can take place in the world, as we know it, than the end of the European War? If the cleavage between the post-war world and the war world is not wide enough to justify the surrender of these powers over the liberties of the individual, when will the chasm ever justify the doing of that? What I am afraid of is that the Taoiseach is going to ask for these powers for another year, and that at the end of that year he is going to tell us that a new set of circumstances has arisen which makes it inexpedient for the Executive to divest themselves of these powers. Then we may suddenly wake up to the fact that we have incorporated in the ordinary law of this country a provision whereby the Executive can seize upon any citizen they like, at any time, and lock him up indefinitely without ever alleging anything against him. Do Deputies want to do that? So far as I know, they do not, but they are very ready to give the Executive any powers they require to deal with any genuine supply emergency that may arise in the immediate future, and they are very genuinely ready, if the Taoiseach comes before the House and says: "Here are the details of conspiracy which is being hatched for the purpose of overthrowing the State by force of arms" to give him such powers as he may require to prevent anybody, right, left or centre, from carrying arms in this country for the purpose of overthrowing the legitimately chosen Government of the Irish people. The Taoiseach has no reason to doubt that he will be ever harried, harassed or hampered in doing that. Why then does he not trust this Parliament, as it trusted him six years ago? I am loath to believe that the head of an Irish Executive would, by any misinterpretation of the words that were spoken in those days of 1939, seek to escape from the undertaking which he gave Dáil Eireann when he asked for these powers. If we cannot accept undertakings of that kind given by the head of an Irish Government under the stress and difficulty that we were working under at that time, then we can accept nothing. If ever the time arrives that a body in this House cannot accept, at their face value, undertakings of the Taoiseach in this House, then it will become extremely difficult to carry on democratic Parliamentary institutions at all.
I accepted the Taoiseach's word for what I understood it to be, and I used all the influence I had on this side of the House—indeed I had not to use very much persuasion because my recollection is that all my colleagues were of one mind with me — that in the special difficulties in which the Taoiseach then found himself, he should get all the help we could give. We did surrender into trust then many precious things for which we were trustees before the people. I think we are bound by the most solemn obligation to the people to get back from the Taoiseach those liberties which were temporarily surrendered. When he has restored them to the people by repealing this obnoxious sub-section (1) of Section 2 of this Bill, then we can calmly consider together what special powers we may require in the future to meet the emergencies that lie ahead, but he should first give us that which we surrendered to him to hold on trust. It is not just, it is not right, for a trustee to hang on to property that does not belong to him. The liberties of our people do not belong to him. He holds them on trust. The time of trust is over, and those who trusted him ask for them back. If he depended on us for co-operation to get them six years ago, when he wanted them badly, there is no reason why he should not depend on this House now. But he has no right to hold on to them, and he is bound in honour and in justice to give back to us the liberties we gave to him to hold on trust, now that the period for which he asked that trust has clearly passed.
I should like to address myself to the subject matter of amendment No. 2 in which reference is made to the public safety. I am concerned to know what elements there are in the present situation in relation to the public safety which require any powers under any Emergency Powers Act. What elements are there in the situation which affect the public safety to the extent of requiring emergency powers? Secondly, what are the powers which the Government itself is asking to use, in an emergency way, in relation to things affecting the public safety? When we were dealing with this matter on the Second Reading of the Bill there was a certain amount of heat and obscurity generated. I do not think we ought to be left in any obscurity as to what the powers are that the Government would have if this amending Act was passed as it stands. Can we be told what are the powers which the Government desires in fact to have, and, again, may I ask what are the elements in the situation for which it desires those powers?
On the question as to the kind of powers the Government would have if this Bill were passed as it stands, I want to say that the Taoiseach seemed to indicate that Deputy Costello was obscuring and misrepresenting the situation when he dealt with that matter. Deputy Costello opened his speech on the Second Reading of the Bill by dealing with a question that had been asked by Deputy Dillon, the question being "What residue of the emergency powers will survive in the Government" when the Bill as it stands has been passed into law? Deputy Costello answered that question by saying: "The residue will be everything in the 1939 Act, as amended, with the sole exception of censorship". The Taoiseach interjected by saying: "Oh, no". Now, I think the Taoiseach was mistaken when he said: "Oh, no", and that probably on calmer thinking he has come to realise what our difficulty in this matter is. Deputy Dillon has now indicated the reasons why, it appears to him, the situation is as it was stated to be by Deputy Costello. Deputy Dillon could have gone further and pointed out that not only the phrasing of the 1939 Act, and not only the judicial decision that he spoke about, but that the Emergency Powers (Continuance and Amendment) Act, 1942—No. 19 of 1942—in Section 6, sub-section (1), definitely says:—
"For the purpose of removing doubts it is hereby enacted and declared that nothing contained in sub-section (2) of Section 2 of the Principal Act shall be construed as limiting the general powers conferred on the Government by sub-section (1) of the said section".
Sub-section (2) of the same section provides:—
"Sub-section (1) of this section shall be deemed to have come into operation and shall have effect as on and from the 3rd day of September, 1939".
So that in case the original Act, or any judicial decision that had been given, was not water-tight, the Act—No. 19 of 1942—was passed to say that nothing in sub-section (1) of Section 2 of the 1939 Act mattered a hoot, and that the whole law, and all the law, was in sub-section (1) of Section 2. Do not let us go back over the fact that that does not mean all powers, because the Taoiseach and the House will recollect that, if that section was limited in any way, it was limited by the action of ourselves here both in discussion with the Government and in moving amendments in the House and that it was we were responsible for limiting the powers under Section 2 (1) of the original Act by the limitations contained in sub-section (5) of Section 2 dealing with compulsory military service, compulsory industrial service and taxation. We are not likely to forget that. The Taoiseach will, therefore, understand, when we say that if this present Bill is passed in the form in which it is, he will have all the powers that were originally contained in the 1939 Act as passed and amended by subsequent legislation, with the one exception, that is the exception that is dealt with in Section 6 of the Bill that is before the House.
So that, as we read it, we are being asked, on the 11th July, 1945, in respect of the public safety, and because of certain things existing in the present emergency, whatever these things are, to acquiesce in giving the Government every single power, with the exception of censorship of the Press, etc., that they were given on the 3rd September, 1939, when the world was beginning to walk into the shocking circumstances in which it has been walking. I want to ask the Taoiseach, therefore, because of that, what are the elements in the present situation that impinge in any way on public safety, and in what way do they do it, and what powers exactly does he want the Government to have, as a matter of emergency, in order that they may deal with these things? I think the House should be made perfectly clear on these matters.
Deputy Dillon, of course, went off again on the same line as in the Second Reading. Several times, both during the Second Reading and at the end of it, I tried to draw the Deputy's attention generally to what was being done, so that it would be known exactly what was being done and that we would not have arguments at cross-purposes. There is no doubt whatever about it that Section 2 (1) does give general powers and was strengthened, as Deputy Mulcahy pointed out, lest there should be any doubt whatever about it because it was very important and it was impossible to list every type of thing that had to be done or might have to be done in the emergency. For that reason, the only way in which you could adequately cover it was by giving the Executive general powers of this type. These general powers, however, are restricted, first of all, by the section in the Act which says: "Notwithstanding these general powers—whatever it may be—you may not do so-and-so"—that is sub-section (5) of Section 2. Sub-section (5) is the beginning and then sub-section (6). These start by limiting the general powers in the Bill itself—"Nothing in this section shall authorise"——
Did the Taoiseach say in the Bill or in the Act?
The Act, I mean.
The 1939 Act?
The 1939 Act— Section 2 (5) and (6).
Sub-section (5) of Section 2.
It says, "Nothing in this section...."—that is the section in which the general powers are given——
That has been amended since.
Wait a moment. We are reamending it in this Bill. We are putting it back to its original position in this Bill so that when the Bill is passed sub-section (5) in its entirety will apply, namely: "Nothing in this section shall authorise the imposition of taxation or the imposition of any form of compulsory military service or any form of industrial conscription, or the making of provision for the trial by courts martial of persons not being persons subject to military law." We propose to put back what was taken away by an amending Act, so that that section, after this Bill is passed, will have its full force in its complete entirety. Is that clear?
It is quite clear.
Very good. We cannot try people by courts martial.
Exactly.
Very good. We have got that far. That is something different from censorship.
It was in the original Act, in September, 1939, when you got it.
You just read the rest of Deputy Costello's speech and see whether that part of it indicates what the general purport of his speech was—I read it—and read the paragraphs of it in which he said flat-footedly what I object to.
What are the facts now?
Deputy Mulcahy did a very good covering action in retreat. Sub-section (6), Section 2, says:
"Nothing in this section shall be construed as authorising the declaration of war or the participation by the State in any war without the assent of Dáil Eireann."
That stands in its full entirety. Next there is a thing which it may be no harm for Deputy Dillon to have pointed out to him. We cannot change this Act itself.
Section 2 (2) (p)?
Section 2 (2) (p).
You are taking out (p)?
I am not.
By the amending Bill you are taking out (p).
I am not. Item (p) reads: "Suspend the operation of or amend or apply (with or without modification) any enactment (other than this Act)...."—"Other than this Act" prevents this Act from being amended by any general powers we have for the time being in force—"or any instrument made under such enactment". We want that power for reasons which I will give when I come to it, because we cannot get rid of it, but there is a special exception to this Act: that is, we cannot amend this Act itself.
Does the Taoiseach realise that there has been a judicial decision that the limitation contained in the lettered paragraph cannot be regarded as an effective limitation of your powers under sub-section (1)?
I know this, that "with or without modification.... (other than this Act)" is held to apply and prevent us from using any general powers to interfere with this Act because of the fact that when you bring in specific words into these illustrations which show that it is the intention of Parliament that it should not apply to these particular cases, that does limit the general powers under sub-section (1).
Has any judicial decision been given to that effect?
I do not know whether there has been a judicial decision or not, but my advisers have advised me to that effect. Why did we take out the phrase, "other than natural-born Irish citizens" and so on? It was because if these words remained in these illustrative paragraphs, the use of these words, in the opinion of our advisers, would be held to mean that they were outside the general powers which were given in Section 2.
It is the opinion of the courts that matters to the individual and not the opinion of the Taoiseach's advisers.
I do not think this particular matter was ever argued as such before the courts. One of the dangers of illustrations of various kinds is that, when you go out of your way to exclude a particular thing from being an illustration, you indicate that the general powers would not apply to that particular thing. These words in brackets are of an exclusive character and I am advised that they are sufficient to prevent us from using legally Section 2 for purposes which would be contrary to them. That is not merely given to me as a legal view, but also appears to be commonsense, and we have acted upon it. When we wanted power to do these excepted things in the illustration, we had to bring in an amending Act.
Deputy Dillon suggests that, in regard to Section 6, I seem to think it is not sufficient for us to do certain things, without putting in a positive prohibition. There is a difference between a deletion and a prohibition. When we deleted the paragraph, we were only taking out the illustration and it may have been argued that the taking out of the illustration did not alter the situation.
Exactly.
On the other hand, it might be argued in court that it did. It is not as specific and definite as putting back words into the Act. There is a number of the things which are not covered by illustrations and when you definitely insert words like "other than natural-born Irish citizens" you are doing a positive thing, which comes under the general canon to which I have referred.
But you are not putting in words in Section 6; you are putting in a new section.
If you delete a paragraph from the illustrations, it is not the same thing as putting back restrictive illustrative words or restrictions in the illustrations.
This Section 6 means putting in a completely new restriction which was never in the original Act.
No, because in the original Act we had powers under subsections (1) and (2). I think you will find that we had (h) in the illustrations —censorship—as one of them. Now, the deletion of that by itself might not be regarded as sufficient.
Exactly.
But that is not the same thing as putting back words such as "other than natural-born Irish citizens". It is held that those words in the original form in the Act had a definite restrictive power and they were put back deliberately. I asked Deputy Dillon if he would be satisfied if we put in the restrictive powers there to make the assurance doubly sure. My view is that they are not necessary. We do not object to them, except from the point of view of there being something unnecessary in the Bill.
With regard to the question of public safety, the original Act is entitled
"an Act to make provision for securing the public safety and the preservation of the State in time of war and, in particular, to make provision for the maintenance of public order and for the provision and control of supplies", etc.
In time of war.
Yes, "in time of war" being interpreted in accordance with the Constitution.
And with commonsense.
I said that the moment it was possible to get rid of these powers it was proposed to do so. When the European war ended, we gave instructions to all the Departments to go with all speed through the Orders, to find out which of them could be got rid of at once and to examine the remainder with a view to seeing if there were some of such a character that they should be put into the ordinary legislation. It is only two months since the war in Europe finished and there are some hundreds of these Orders. Those which could be revoked were revoked. In this Bill, we are getting rid of the power to interfere with public expression and with the liberty of the individual, in so far as it affects questions of arrest and trial by courts martial. It is common ground that we cannot get rid of the Orders in regard to supplies. I have not gone over all the Orders myself, but I am informed that there is a number of them of a mixed character which may refer to supplies but which are not clearly supplies alone. Therefore, it is necessary to keep the general terms, in order that the Act may apply and that the various Orders might not be questioned.
It is not a question of will in this particular matter, as far as I and the Government are concerned; it is a question of way and of what can be done within the time. Every Deputy knows that, if we are to have legislation on this matter, it will have to be done before this time 12 months. A complete examination of the position will be necessary, so that we may dispense with this particular type of legislation completely, if possible. If we want that done by this time 12 months, the examination and preliminary work in the preparation of legislation will have to be completed about Christmas, so really we are asking only for time from now to the end of the year, to give the Departments an opportunity to carry out the examination. The Departments have to do their other work as well and it is a tremendous burden to put upon them to go over these various Orders. We cannot carry peak staffs everywhere to meet a sudden addition of work such as this would entail; we need a certain amount of time and we are asking for that time. We are also revoking one by one, or in numbers, any Orders which can be revoked and we are bringing in this particular Bill to get rid of other things.
In the case of certain of these Orders, it is difficult to say under what particular head of the powers it falls. Mention has been made of queuing at a bus stop, as to whether that is a question of supplies or not. It may be, as there may be the question of using petrol to the best possible advantage. Then there are questions about the Local Defence Force and there is an attempt to be made to put them on something like a permanent basis. Are we to get rid of any powers we have at present through Orders in that respect? There is a variety of Orders which, though they may relate to supplies, cannot be said to relate to supplies absolutely and it may be difficult to show exactly in what way they relate to them. If we deprive ourselves of the general power and confine it narrowly to supplies, we may find that some of these Orders which appear to relate to supplies may have other considerations coming in also and so we are not in a position to get rid of the powers generally. Therefore, I simply ask the House to give us the time we require. We shall proceed as quickly as we can. Leave these questions of public safety to us for the reasons I have indicated, so that the Orders that have been made and that may be required will be available until we are satisfied we can get rid of them completely or that we have a situation in which we will be able to put what is necessary into ordinary legislation instead of legislation of this kind.
The Taoiseach probably realises that I could bandy irrelevancies with him just as well as he could do it himself, but that is not what I want to do. I resent being told I am fighting a rearguard action to a retreat for Deputy Costello. Deputy Costello's statement was quite clear. He said that the passage of this measure in the form in which it is leaves all the powers the Government sought in the 1939 Act, as amended to date, without the question of censorship. I could keep saying that and the Taoiseach could keep saying what he has to say in a milder or less mild key for the rest of the evening.
I gave the Taoiseach an indication, when we were dealing with this matter on the Second Stage, that I was anxious to find out what were the elements in the present situation that were affecting the public safety here. If I can understand from the Taoiseach that there are no such elements and that he is presenting this measure simply as a matter of convenience and because there is not the time or the necessity for changing the legislation in any other way, then we can all, with unfettered minds, agree to the proposals the Government are making. At any rate, we will have the satisfaction of knowing clearly what we are doing.
As regards the notice the Taoiseach has had from me, that I want to know what elements in relation to public safety are affected by the present situation, do I understand from him now that there are no such elements and that the only reason he insists on keeping that portion unamended in the original Act is that certain Orders that deal with supplies and services arising out of supplies to the people are intermingled in a certain way with public safety and he feels it would be inconvenient and absurd to eliminate all these Orders affecting public safety and, therefore, he does not want to take that out of the Act? Could we have a clear statement on that aspect of public safety? If we could, it would clear up certain aspects of the situation.
The Taoiseach talks of certain Orders, and says: "I ask Deputies to leave the question of public safety to us." That is just the thing I do not want to leave to him. I do not want to leave in the Taoiseach's hands any longer the power to arrest his fellow-citizens and lock them up without trial.
We have not that power; by this legislation we are getting rid of that power.
And you are taking it back by proclamation.
That has nothing to do with this legislation.
Then why did you mention it?
I mentioned it merely to let the Dáil understand the situation.
Precisely, and I also want the Dáil to understand what the situation is. We are being calmly invited to leave everything in the Taoiseach's hands. "Trust us," he says. We trusted him in 1939. When we gave him these powers, he said to us: "When the war is over, I want to give these powers back into your keeping at once." But now we are being told that his advisers and his colleagues in the Cabinet tell him that they made Orders of a mixed kind; that they cannot segregate the Orders, which relate to supplies, personal liberty and the other matters mentioned in the Preamble of the Act, and, therefore, because his colleagues in the Cabinet are too damned lazy to get their own Orders interpreted, the Taoiseach says: "I must retain all the powers that I asked in order to defend this country when the German Army was at our doorstep." Was ever such logic employed in any Parliamentary debate? The Taoiseach says: "My colleagues are too lazy to look this matter up."
That is not the point.
The Taoiseach says to us: "I cannot segregate supply matters from the other matters. How am I to say whether an Order regulating persons to queue is a matter relating to public order or to supplies?" He says that other Orders, of necessity, make regulations relating to several matters, supplies and other things, and they cannot be disentangled. He says: "These men are very busy; they have to carry on their daily work and we cannot get special staffs to make a segregation of this kind." All he asks is the power. I think it is fantastic to come to this Parliament and, in this amending Bill, ask for a continuance of the surrender of liberties granted under the Principal Act. If the Taoiseach makes the defence: "My colleagues are too lazy to do the work expeditiously", I can understand the difficulty; but if he is afflicted with lazy colleagues who will not do their work, let him stir them up as best he can.
Will he give us any indication, now or hereafter at any foreseeable time, when he will be able to come here and say: "I no longer want the powers contained in Section 2 (1) but, instead, I ask for specific powers to meet specific evils which I am prepared to describe to the House"? Is there any fixed date, any foreseeable time when the Taoiseach will be prepared to do that? If he will mention any day within the next five years on which he will be prepared to come here and say: "I will repeal Section 2 (1)", that will materially affect my judgment. We have not had from him so far, either on the Second Reading or on the Committee Stage, any specific undertaking that he will divest himself of these powers.
I say that under Section 2 (1) the Taoiseach can sign an Executive Order to-morrow morning consigning Deputy Richard Mulcahy to Arbour Hill Barracks, or an Executive Order stripping Deputy Eamonn O'Neill, the Leas-Cheann Comhairle, of his house and grounds, handing them over to any Department of State without compensation. He can sign an Executive Order doing to any other individual here very nearly anything he wants to do and that Deputy will be prohibited from access to any court and no friend of his may, in his behalf, go before the court and claim that the Executive Order made by the Taoiseach under that section is contrary to the Constitution, because he will be told that for the purposes of Orders made under that section the Constitution may not be cited. All I am asking the Taoiseach to do is to name any day in the future that he deems suitable. If he will give us that, then we can consider his claim. Does he want a year, or does he want one, two, three or four years to determine the number of Orders that it may be necessary to make? Let him tell us how long it will take. I seek to impose no limitation on the nature of the request that he may then feel constrained to make to Dáil Eireann for these powers. Will he give us that date? If he does, we can then consider his representations.
I made the case on the Second Reading that this is a one-section Act. All the powers that are needed are contained in Section 2 (1). Anything that is in Section 2 is merely illustrating that. Furthermore, the sub-section itself says that these powers are without prejudice to the generality of the powers contained in Section 2 (1). In case there might be any doubt on this point the position was made clear by Section 6 of the Emergency Powers (Continuance and Amendment) Act, 1942. Section 6 (1) which says:—
"For the purpose of removing doubts it is hereby enacted and declared that nothing contained in sub-section (2) of Section 2 of the Principal Act shall be construed as limiting the general powers conferred on the Government by sub-section (1) of the said section."
The next sub-section states that these powers are made retrospective to the 3rd of September, 1939. It is as clear as a pikestaff that it is immaterial what is left in sub-section (2) of Section 2 of the Principal Act or what is taken out. The powers in sub-section (1) of Section 2 are without limit so long as they can be exercised on four grounds, public safety, maintenance of the safety of the State, maintenance of public order and provision for control of supplies; yet the Taoiseach has argued, in reply to Deputy Dillon, that it is not within his power to amend the principle of this Act if passed by this House. I say that, if on any of the four grounds mentioned, the Government find it necessary to amend it, they can do so. By the section of the Act of 1942 which I quoted, they have these unlimited powers and they can again amend this Act if they so think fit in the interests of the preservation of public order, the preservation of the State, or the control of supplies. That is clear to anyone who reads the Bill. One need not be a lawyer to understand it. What is contained in sub-section (2) of the Principal Act is immaterial. I oppose this Bill largely on the grounds of what I call the Balkanisation of this country. I object in principle to having this country held up as a State that is insecure in itself, as a State menaced by internal disturbance and by one perpetual type of society here, which is ready to murder or to kill at any moment. Deputy Mulcahy tried to illustrate that for the Taoiseach. What are the elements that would undermine public safety? We have not got any information good, bad or indifferent as to what the menace is. I hold and I say so with a certain amount of information, that that menace has ceased to exist virtually; that it is not now in the proportion that it was two or three years ago. Those who were recently released have seen the error of their ways and are anxious to settle down in civil life. I do not believe that their organisation is such to-day as to require extra State measures to suppress it. I believe these people could be effectively dealt with by ordinary police vigilance and by the ordinary criminal law, and for these reasons I am definitely opposed to this measure.
I wonder how many more times it will be necessary to say that this Bill and these emergency powers are not going to be used in the situation Deputy Coogan was talking about. I have not suggested that that was going to be done. What I said was that we are getting rid of all these powers by this means. If we have to do it there is a code and we can with ease, and without any anxiety being caused, get rid of it. This Bill is to get rid of these powers. The Deputy says that I read that out and know all about it. I read out a list of things in the hope of getting Deputy Dillon to see the point. I read a list of the things we cannot do notwithstanding the generality of Section 2 (1). Section 2 (5) and (6) were referred to by Deputy Dillon. I say that we cannot declare war, nor can we participate in war, nor can we impose taxation or any form of compulsory military service notwithstanding the generality of Section 2 (1). Neither can we impose any form of industrial conscription notwithstanding the generality of Section 2 (1), which we are told will enable us to do anything. We cannot impose trial by courts martial on any person not subject to military law notwithstanding the generality of Section 2 (1). We cannot provide for the detention of a natural Irish-born citizen so that the menace that Deputy Dillon said was hanging over Deputy Mulcahy, or somebody else, who he said could be arrested, cannot arise under this Act. Once this Bill is passed we deprive ourselves of any power by emergency Order. We cannot provide for the arrest without warrant of any Irish-born citizen, notwithstanding the generality of Section 2 (1). We cannot amend the Emergency Powers Act by Order, notwithstanding the generality of Section 2 (1), and notwithstanding what the lawyers on the other side have told us. Neither can we reimpose minimum penalties. I have spoken of the censorship. I say that all these things are being got rid of. Some of them we never had, notwithstanding the generality of Section 2 (1). We got rid of these and, in addition to that, the Dáil has power, always had power, and will have power to annul any Order. Surely when I said all these things, we ought, at least, to look at the Act and the amending Act to see what we are doing. I say definitely that my legal advisers have examined this, and they assure me that if there is any doubt, the putting back in the sub-section of the words "other than natural-born Irish citizens" will not effect what I said. I am willing to have it in the section so that that will be provided for in the same way as the censorship. It is regarded by the legal advisers as being a work of supererogation.
With regard to the point about the preservation of the State and of public safety, it is not that there is an immediate menace about these things. If there were, we would not be taking away these powers from ourselves. The question is, that with the number of Orders that were drawn up it would be difficult to segregate them. Surely, in view of the number of orders founded on one purpose or another, it requires time to go through them. Deputy Dillon asked to be told within one, two or three months, and to come back and say when they could be got rid of. I stated my zero date, that if we get 12 months, we hope we will be able to bring in a Bill dealing with the supply situation alone or we will be able to get rid of it altogether. I think no further comment is needed. I have been informed that it would take probably until Christmas to go through these Orders to segregate them and find out which of them we want, and then have the legislation necessary to keep on those we require. The preparation of that legislation will occupy us then, so that we will not be ready before this time 12 months. I say, then, that I cannot accept either amendment No. 1 or amendment No. 2.
I think, Sir, it has become abundantly clear now that this Bill, which was introduced to this House as a Bill to divest the Government of the powers that were conferred upon them by the Emergency Powers Acts, is a Bill further to assure the Government in those powers. I repeat what I said on the Second Reading of this Bill, that under this Bill every single power which the Government had under the Act of 1939 and the Act of 1942 is being retained by the Government. So far from this being a Bill to divest the Government of any power, they still retain the powers—every single one of them—that they had under the Act of 1939, with the exception, as I said on Second Reading, of censorship.
The Taoiseach was good enough to pass some remarks of a derogatory character about the observations I made on that occasion. I repeat and assert everything that I said on the Second Reading, and everything that I said and asserted on the Second Reading has been conclusively proved to be correct by everything the Taoiseach said both in his reply on the Second Reading and in the observations that I am informed he made here to-day. When Deputy Dillon asked a question at the close of the Taoiseach's observations introducing this Bill, as to what were the residue of powers that were being retained, I took upon myself the reply to that question of Deputy Dillon's, and however expert the Taoiseach may be in spinning words and weaving webs around clear thoughts and expressions of opinion, nothing can derogate from the clarity of the answer that I gave in reply to Deputy Dillon's question at the close of the Taoiseach's observations. I referred to Deputy Dillon's question and said: "He wants to know what residue of the powers conferred under these Emergency Powers Acts will remain when this Bill passes into law." That was the question that I was answering: what residue of power will remain? In other words, it was directed to the powers the Government had under the Emergency Powers Acts, and which of those powers which were vested in them was it proposed to retain. I gave a very clear answer to that which I repeat here: "The residue will be everything in the 1939 Act, as amended, with the sole exception of censorship." Can there be anything clearer than that? The Taoiseach, however, proceeded to give a number of things that were excepted by the Act, such as declaration of war, conscription of labour and imposition of taxation, but the Government never had these powers under the 1939 Act, as amended, and therefore could not retain any residue in that regard. It was mere juggling with words when the Taoiseach attempted to answer the statement I made, and repeat, that the residue retained was everything, with the sole exception of censorship.
That is the position that this House has to face. That is what the Taoiseach and the Government are asking the House: to give them all the powers they had under the 1939 Act, as amended, and under those, as I said before, they can do everything. Those observations of mine were made in the context that everything they could do under the 1939 Act could still be done when this Bill becomes law. There were two or three or four things excepted from the Act, such as declaration of war, conscription of labour and imposition of taxation. It certainly would not be beyond the bounds of possibility for the Government to seek the advice of a lawyer who would show them where, under Section 2 of the Act, they would even be able to get over the exceptions that were reserved and the powers that were not given to the Government under the 1939 Act. These powers they still have, and they still can do anything they like, and it is no answer to the statements and criticisms that have been made to say: "Oh, the Government have those powers, but they will not exercise them".
The Taoiseach, in his last observations, said that the Government are unable to segregate into different categories the various powers they wish to retain and the powers of which they wish to divest themselves. I repeat that the emergency is over— the emergency as it is popularly known —and I repeat that it is realised fully that there are difficulties arising in consequences of the emergency and in consequences of its cessation which must be dealt with, and we would meet the Government on those, but knowing the history of the Government, so far as these emergency powers and Orders are concerned, we certainly object to giving those powers to the Government for one second longer than we can possibly help giving them. Those powers have been abused, and the Government now ask to be allowed to resume all the powers they had under the 1939 Act. In other words, they can do anything, and with the exception of the three or four things specifically mentioned as not being under sub-section (2) of Section 1, all the powers they had are still there.
The Taoiseach says that there is some doubt as to whether the Government could make an Order under Section 2 for the arrest and imprisonment without trial of a natural-born citizen. I say that there is no doubt that under the sub-section the Government would have power to make an Order imprisoning natural-born citizens without trial: that they can do anything they like, that they can take property from citizens without compensation. I waited to see what would be said in regard to the statement I made on the Second Reading about the taking of lands, and compensation for lands so taken. What is the justification for taking lands at present, or within the next 12 months if this Bill passes into law? What is the necessity for taking of lands by the military, particularly as the position is that lands can be taken without compensation, or at least that there is no machinery provided for it, and apparently the courts will not act when there is no task imposed upon them to give compensation? The Government are taking the fullest power to take land from the people under sub-section (2) of Section 1. Is that correct from the Taoiseach, I want to know? I repeat that everything that I said on the last occasion was legally and perfectly correct. My sole object is, not to ventilate my own views, but to make it perfectly clear to this House what they are doing, and to make the people understand that this is not a Bill divesting the Government of the powers they had under the Act of 1939, but assuring them in every single respect, with the sole exception of the censorship, in the powers given to them under the Act of 1939. It has already been pointed out by Deputy Coogan that some doubts arose—I believe it was in consequence of observations made by a learned judge in the course of a case—that the enumeration of the various powers given under Section 6 (2), might be held to cut down the generality of the powers of sub-section (1) of Section 2. So the Government put into the Act of 1942 a provision to make it absolutely clear that the enumeration of specific powers under sub-section (2) did not cut down in any way the generality of the powers under Section 2 (1).
The House had better realise that, that being the law at present, it is going to be retained as the law under this Bill, so that the Government can do anything except the three or four matters specifically excepted in the Act of 1939. They can do these things by Order, and I assert, however startling it may be, that if the Government were so disposed they could, notwithstanding the provisions of paragraph (p) of sub-section (2) of Section 2, amend by Order this very Bill when it becomes an Act. They can do anything, subject to the specific exceptions. The specific exceptions do not cover the amendment or repeal of an Act of Parliament. They do not cover even the repeal of this Bill we are about to pass. Therefore, the position is that, under Section 2 (1), the Government can repeal, alter or amend any statute. They have taken good care, under the 1942 Act, to make clear that the fact that paragraph (p) is mentioned, in Section 2, will not cut down the generality of the powers. The power to which I have referred is being retained. The Oireachtas may pass a Bill to-day. Five minutes after the President puts his signature to that Bill, it will be law. By an Order under the hand of the Taoiseach, having taken the appropriate steps, the Government may repeal that law or amend it in any way they like. These are the powers which are being sought in this Bill. It is not a Bill to divest powers; it is a Bill further to assure the powers which the Government possess.
Of course this is a Bill to divest powers from the Government. The Deputy speaks as a lawyer, but there are other persons who can speak as lawyers, too, and who are just as much entitled to their opinion, as lawyers, as he is to his opinion. They have much more responsibility in dealing with these matters than he has. He is a free Deputy. Our legal officers, when they give advice, are not free, in the sense that their opinion can be tested. The Deputy said that I quoted a sentence from him the last day, and he very cleverly laid stress on the first part of his answer.
The whole speech was based on the first part.
The first part of it is technically correct.
It is absolutely correct.
It is technically correct. The whole implication of his speech was very different from that. Even as regards the phrase I quoted here, the whole implication was that the Government could do anything by Section 2 (1). I had to point out that, even in the Act of 1939, the Government's power was limited to——
Is there anything except those matters specifically mentioned that you cannot do?
I gave a list of some of those the last day before the Deputy came in.
Other than the matters specifically excepted?
I shall take some of the matters not specifically excepted. Can we impose trial by court-martial?
Yes.
The legal officers say "No." Take the exceptions which are there——
Would the Taoiseach refer me to the exception which covers the matter he mentioned?
We cannot rove all over the place. When we come to deal with specific amendments and with sections of the Bill, we can have attention drawn to them. We cannot provide for the detention of natural-born Irish citizens. Neither can we provide for the arrest, without warrant, of natural-born Irish citizens. If that is all you want to make sure of, we are prepared to put it in in the same way as we put in the censorship.
On the understanding that you are going to take those powers by proclamation.
On no understanding whatever.
That is the understanding you mentioned.
What I said was that we were divesting ourselves of those powers but that we had other powers, if they were necessary.
"And we can use them."
No. I said that we may use them. The Deputy is only trying to confuse the issue.
I am not. It is you who are trying to confuse the issue.
I want to be frank with the House. We are getting rid of those powers but there is a situation which may make it necessary— and probably does make it necessary from the point of view of the Minister for Justice—to have power of internment in certain cases. That has nothing to do with what we are doing here.
You said that, simultaneously, the Government would make and publish a proclamation which would give them this power.
The Deputy is trying to could the issue. What we are doing at present is getting rid of any such powers exercisable by Emergency Order. We cannot arrest without warrant. Neither can we amend the Emergency Powers Act, 1939, notwithstanding what Deputy Costello says. If, again, there is any doubt about that, I am prepared to meet it by putting in an express provision.
That is some advance.
That is the position which obtained from the beginning. I indicated at the beginning what this Bill was intended to do and I am prepared to do anything that will make what I indicated effective. I am told that what has been urged is being done without express provision but, if anybody has any doubt about the matter, I am prepared to insert a specific provision. In the same way, we cannot reimpose the minimum fines. These are things which are somewhat different from censorship. If there is a doubt about the matters I mentioned, I am quite prepared to meet anybody as regards it. The view I have formed, as a result of the opinions I have heard expressed, is that we do not need express provision but I am prepared to meet the House, as I have indicated. We are divesting ourselves of powers which we possess at the moment.
It is all very fine for the Taoiseach to say now that he does not accept our view but that he is prepared to meet it. That is a different attitude from the attitude he took up on Second Reading and the attitude he took up a short time ago.
It was my attitude from the beginning.
To have this matter quite clear, I want to make a few observations. The Taoiseach said that they could not impose trial by courtmartial—I am not sure whether he used the words "of persons not subject to military law". That, of course, was an express exception in the Act of 1939, but he still can do it notwithstanding that express exception. All he has got to do is to get the Government to make an Order that the persons whom he wants to try by courtmartial are deemed to be persons subject to military law. As regards the other matters, they are matters specially excepted from the Bill. They are all matters referred to in sub-section (2) of Section 2 of the Act, which says that without prejudice to the generality of the foregoing sub-section the Government may do several things. Every one of these matters that are specified comes within the ambit of the provisions of the Act of 1942, which declared that none of these were to derogate from the major powers given to the Government in 1942.
These exceptions all derogate from it.
Deputy Dillon said that the Taoiseach could by Order take over the house and lands of the Leas-Cheann Comhairle. He can, of course, because the Government have already done that in certain cases. In Athlone the Government by Order seized the house and the lands of a citizen of this State and put him out on the road at very short notice at the end of the war when surely there was no necessity to do so. If this step had been taken in 1939 or in 1940, when nobody knew what form the emergency was likely to take, one could not question it, but at the end of 1945 it was an extraordinary step to exercise these powers. The Taoiseach wants that power left to the Government without any assurance that that outrage will not be repeated. There is no redress for this citizen who has suffered such severe loss and grave hardship "in the interests of public safety". It was a well-known fact that there was no menace to the safety of the State or no danger to the State involved. We can now do without a rifle range. What was it for in 1945 when we did not want it in 1939?
I have up to the present addressed myself only to amendment No. 2 in relation to public safety because, as I indicated, I wanted to make it perfectly clear, both for our information and to ease the public mind, what was in the present situation that required that in the interests of public safety we should need these emergency Orders. I do not expect the Taoiseach to make it any clearer than he has made it up to the present, but I should be glad if he would correct me if I am wrong in saying that there is no element in the present situation arising out of the emergency affecting in any way public safety that requires that the public should be dealt with by emergency Order. The only reason why the Taoiseach resists, as I understand he intends to resist, amendment No. 2, is that in many emergency Orders you have the phrase about public safety together with the phrase about supplies, and that it would be too difficult to expect the hundreds of Orders that have been made in connection with supplies to be searched to find out where these refer to public safety. I take it that is the only answer I can hope to get.
In sub-section (2) of Section 2 of the 1939 Act, the preservation of the State is invoked as one of the objects that dictate to the Government that they require Emergency Acts and powers under these Acts to the extent we have indicated that these will be in the Government's hands. I want to ask the Taoiseach to address himself to amendment No. 3, which asks that in the sub-section any reference to the preservation of the State be removed. I want him to do that as an indication to us and to the people generally that there is in the present situation no emergency element so threatening the preservation of our State that we require emergency legislation and the various powers under this Act to deal with any of these things. I do not think that any such element exists and I think that the phrase could be very readily removed from the statute. If the Taoiseach thinks it should not be removed I want to ask him why?
The Taoiseach is one of the most astute and devious politicians in Europe. He is quite capable of jumping to his feet and of making a magnificent gesture by saying "Yes, we will take out these words." I want to point out to the Leader of the Opposition that in accepting such an offer he is buying a gold brick. Take the two phrases: "The preservation of the State" and "For securing public safety or the maintenance of public order". Is there anything he can allege he is doing for the preservation of the State that he cannot equally convincingly allege he is doing for the security of public safety or the maintenance of public order? Surely what the Leader of the Opposition and what every Independent Deputy want back from the Government is the power to dispose of our persons and of our lives, that we handed over as trustees at the beginning of this war because we wanted them to have the power necessary to protect the country against a possible German invasion? They got the powers on the representation that they required them for that purpose. When they made that representation we said: "Very well, you can imprison whom you like or do anything you like, anything that is necessary to be done in order to preserve the integrity of the State. We trust you to do that on the understanding that when these dangers are past, you will hand back to us all these freedoms which we have placed in your trust, and approach us in normal times with normal legislation."
Is it not a grim thing that on the first day of this new-born republic, here we are fighting frantically to get from the Taoiseach the fundamental liberties that are enjoyed by the Abyssinians, the Albanians, and the most down-trodden sections of the most depressed peoples living in the world? A mighty war has been fought to get back for the people of Europe the modest claims we are making for the people of what we are told is a new-born republic. It is the queerest augury for the anonymously-born republic that ever occurred in any country in the world. I am asking for nothing as a favour. I am asking back from the Taoiseach what we in this House surrendered into his keeping as trustee for the nation six years ago, and I am not a bit grateful for bits and pieces. I do not want a fragment of that liberty back. I want it all back, and then let him come as a constitutional democratic leader of the Government, to the Parliament of this country and ask from us any special powers he requires to meet any special terrors that lie ahead. Beware lest we should deceive ourselves by accepting what is a fictional return to us of some part of these liberties, only to discover afterwards that having swallowed these assurances given under the cloak of respectability to the leader of the Opposition, he still retains all the powers that he wants. Then, with that generous gesture, he can say: "Here in the middle of the proceedings, the Leader of the Opposition asked me for a return of certain powers and I generously give them back to him. No sooner have I conceded all that he wants, than he is on his feet again complaining that I have not met his demands." I tell him that I do not give a fiddle-de-dee for his concession so far as the words "or the preservation of the State" are concerned.
We are not seeking that.
I understood the Leader of the Opposition to say: "Will you take out the words ‘or the preservation of the State'?" In any case I want to make this clear: I do not give a fiddle-de-dee for the concession. It is not worth the paper it is written on or the breath which is used to express it. I want the liberties of our people; I want all our liberty back. I shall be grateful for nothing less than that full return to me, any more grateful than I would be to any trustee who discharged the obligations of his trust.
Remember that if an ordinary trustee failed to discharge the obligations of his trust, he would be made answerable to the criminal courts. The only court before which we can call the Taoiseach, if he goes back on the undertakings of his trust, is the court of the people, and the tragic thing is that the people have been so demoralised by the Fianna Fáil Party that many of them do not realise how precious a thing freedom is, and how eagerly and how vigilantly, it must be protected, because they imagine, seeing the subservient creatures who follow the Taoiseach and his Party, and seeing some of their elected representatives prepared to eat out of his hand and to trot after him wherever he may lead them, honourable, free and dignified men should do the same.
Unhappily, the Taoiseach has succeeded in demoralising the only court before which he can be brought, but if he retains the words in that sub-section, he is retaining our liberties against our will, and he has no right to do that, and no majority in this country can give him that right. There is no Government, no matter how great the majority, which has the right before God to take from the minority their essential freedom. I do not challenge their legal right to do it. Under a democratic system of government, a majority government has a right to enact any legislation it thinks best and which it can get the House to pass, and everybody in this State has an obligation to obey the law so long as it is legitimately enacted, until such time as they can get it legitimately repealed; but there is a higher court to which persons who seek to take from minorities in this country the liberties which God gave them will have to answer, and it will pass a surer verdict than the people, or even posterity, and it is to that law I am appealing.
We surrendered into the trusteeship of the Taoiseach the essential liberties of the people and of ourselves. I am asking for them all back, and I do not want them in bits and pieces. If he accepts this amendment by the Leader of the Opposition, I do not accept it. I want them all or nothing. I would sooner be a slave for all the world to see than a slave masquerading as a free man. If I am to be a slave, then let us face it, and let us stand before the world as a country in which the minority are denied the right of access to the courts in tests with the Executive. Do not let us have the fraud, the pretence, that we have our liberties in this country when we have not.
Let us be proud of the fact and resolve to rattle those chains before the world, until such time as we shame the Government of this country into taking them off.
I do not want any pretended freedom. Let us have genuine liberty in this country or none at all. I deny that so long as the words "for securing the public safety or the preservation of the State or for the maintenance of public order or for the provision and control of supplies and services essential to the good of the community" remain intact in sub-section (1) of Section 2, our people have any freedom and I challenge any Deputy to maintain that they have. I was content to let that situation obtain so long as the independence of this country was threatened by the armies of the Axis forces on the Continent of Europe. Now that they are destroyed, those liberties should be rehabilitated, and I want them all here and now.
Before Deputy Dillon finishes, may I say that, on the assumption that the Taoiseach is going to accept my amendment, the Deputy allowed his imagination to wander through the recesses of my mind? On the assumption that the Taoiseach is going to refuse to accept my amendment, will the Deputy allow his imagination to wander around the recesses of the Taoiseach's mind——
God forbid, if I did not want to get permanently lost.
And will he tell us what are the things the Taoiseach is likely to say as reasons for refusing to accept my amendment?
God only knows.
Mr. Corish
For the past six years, the Government have abused the powers given to them under the Emergency Powers Act by deliberately preventing the workers from securing for themselves a living wage. We have heard a good deal about freedom and national liberty to-day, but national liberty is very little use to any man or woman who is prevented by the Government from securing the wage necessary to enable them to live as Christians should live. I want to ask the Taoiseach now if the Government are prepared to divest themselves of the powers they took in the past, since 1939, to prevent the workers from seeking and securing a living wage. During that period, they have trampled on the rights of the workers. They have prevented the workers from using trade union machinery given to them by an alien Parliament. They have prevented them from taking advantage of the strike weapon to enforce what they considered to be necessary to enable them to live properly, and I have yet to learn that it is in the interests of the public safety to prevent the workers from getting a living wage.
I may be told that it would interfere with supplies, that it would bring about an increase in the cost of certain supplies. Personally, I think that, on examination, it will be found that that is not a true reflex of the situation, because if we examine the published reports of various company meetings during the past six years, we find large profits being paid to the shareholders, but if the workers' position be examined, we find that the amount of remuneration they receive is not at all commensurate with the increase in the cost of living since the war started. I said, on the Second Reading, that an increase of a certain number of points in the cost-of-living index figure was disregarded by the Minister for Industry and Commerce. I think the number of points involved was 77. That is a large increase, and we have to-day the position in this country that young men and women are unable to marry because of the low wages being paid.
How long does the Taoiseach expect the patience of the workers of this country to hold out? They are appealed to on the basis of patriotism from time to time, but we cannot live upon patriotism alone, and, as I said before, the existence of this State does not depend on the suppression of trade union activity, and I think the time has arrived when the workers of this country should be permitted to operate their legitimate functions in so far as trade unions are concerned. Under this Bill, as Deputy Dillon pointed out, a trade union or a number of trade unions could be suppressed in the morning. Is that a desirable state of affairs? Countries have gone through war, have gone through hell, but there has been no interference with trade union activities, and the time has now arrived, I suggest, when if there is to be any divesting of authority or power, that is one of the first things of which the Taoiseach and his Ministers should divest themselves.
The purpose of this amendment is merely to direct attention to the fact that there is now no danger threatening the public safety. We have no illusions that if the Taoiseach did the unexpected, if he gave a concession to the Opposition and said he would remove these words, his doing so would have any effect whatever on the powers of the Government. We have no illusions whatever on that point. We are in thorough agreement with everything Deputy Dillon said with reference to the effect on the powers of the Government. We do not wish for any concession which would be in the nature of bits and pieces.
The amendment is put down for the purpose of directing public attention to the fact that the threat to public safety is passed. As I said on Second Reading, the emergency is over so far as a threat of war or invasion is concerned, and we want to make that clear to the public and, if possible, to get from the Taoiseach a declaration to that effect. We have no illusions at all that if these words were taken out, it would mean anything. If all these words were taken out from Section 2 (1), it would make no difference to the power of the Government. The Government may, whenever they have an opinion about anything, make an Order. That is what the sub-section amounts to in effect. You cannot test the opinion of the Government. If the Government made an Order declaring that the whole of Grafton Street should be swept from top to bottom with shell fire, that that was in the interests of the preservation of the public safety, you could not test that in the courts or anywhere else. Those words are pure surplusage in the sub-section. We could go back to an old joke which appeared in Dublin Opinion some years ago, and which paraphrases Section 2 (1): “The Government may, when it thinks fit, act in the manner that best suits it”. That is sub-section (1). We want to draw attention to the fact that there is no threat to the public safety. We want to do that for the purpose of easing the minds of the public. We do not want anything back from the Government in bits and pieces. We want the whole of the Bill repealed; we want all the powers taken from the Government as soon as possible, and normality restored to the country.
I do not know that there is any use in talking any more about it. The question of securing the public safety——
No—the preservation of the State.
We are told now that they have no meaning at all. They are put down solemnly as amendments to the Bill, and the last speaker says they have no meaning——
I said nothing of the sort. The Taoiseach must not have been listening to me.
——and no value at all; that they might as well not be there; that, if they were not, you could do anything you pleased all the same. The point about it is this, that this Bill was introduced at a certain period for a certain purpose, and I think, looking back, we ought all to be very glad that we had the powers and did the things we did during the last five or six years in order to bring the community safely through it. All we are asking for here, before we throw all this away, in a situation which has not yet righted itself, is that we see where we are going, that we get time to do the thing properly. What is it that effects the securing of public safety? Preventing a black market? How far would that be securing the public safety? Is there some special meaning that Deputy Mulcahy and the Deputies on the other side have for "public safety"? What about the preservation of the State? As far as the preservation of the State is concerned, nobody can tell what would be the result of things if they were let go. For instance, I think it was Deputy Corish who was talking about the standstill Order. If you did not have the standstill Order where would you have been?
Pass an Act of Parliament.
We had this before Parliament many a time. If there was ever a question which was discussed by Parliament time after time, with the power of Parliament to annul it if it wanted to, it was that question. But you have not time to do all those things. The variety of things required in present circumstances is so great that you are not sure you can do those things in the time you have to deal with them. All we are asking is that before we throw away those powers which have brought us safely to the present we get time to examine them and see what powers are necessary in the conditions that still obtain.
Can the Taoiseach set any limit to that?
I did, when the Deputy was either not attending or not here. I said that the zero hour I set for myself, in so far as it could be done, was that this time 12 months, when this Bill would come again for renewal, we would have had time to clear up the situation in such a way that I would be able either to come to the Dáil and say: "Here, we are finished with it now, thank God"—as I would from my heart sincerely thank God if we were able to be finished with it—or to say: "Very well, we will get rid of this, but here are things we want because the situation has not righted itself, and we want this particular set of powers". The war is only two months over, and we have not had time to examine in any detail or to make sure that we would be able to put, in the form of a detailed statement to the Dáil, the things that we want. I have said with regard to those powers, public safety and so on, that it is nearly impossible to be able to distinguish what is the real basis of every particular Order.
Does the Taoiseach undertake to do that this time 12 months?
I will keep it as a thing to be aimed at. I cannot know what the circumstances in the meantime may be. I am aiming—I have told the staffs already—that at Christmas-time or so we ought to have the examination done, and then be in a position to prepare whatever legislation may be necessary, so that when this particular thing comes along again we will be in the fixed position at least that we will know definitely what we want, or, if not, that we will be able to point out, as we are doing now, why it is that we cannot say so definitely. There will be some good reason for it. The reason at present is the question of time and the existence of the emergency. As to what may lead to the destruction of the State, or interfere with public safety, I do not know. There is an old rhyme to the effect that for want of a nail the shoe was lost, for want of a shoe the horse was lost, and for want of a horse the rider was lost—the loss of the rider through the want of the nail. I cannot say here—and I think it would be quite wrong to say it—that the preservation of the State or the securing of public order may not very well be involved in some question of supplies.
I have indicated the black market as an example. All you are giving here is not all but some of the powers which we had or have at the moment. We are taking away the powers there with regard to censorship, with regard to minimum fines, with regard to the question of dealing with the person, detention and trial—what may be called personal liberty. We are dealing with this in regard to the powers we had here of doing those things by Emergency Order. If the Opposition refuses to listen to argument in the matter, then we have only to put it to the final court of appeal, that is the vote.
Would the Taoiseach answer this: Can he not bring himself to say: "On the 1st of next July I am going to bring in a Bill to repeal that whole emergency code. I warn you here that on the same day. I am going to table a Bill to take for the Government such powers as I think may be necessary for the ensuing year. That Bill I will fight, on its merits in the House, and I will not let go of this emergency code until my new Bill is disposed of, until it is either accepted or rejected by Dáil Éireann"? I am speaking purely for myself, but if he says to me: "On 1st July that whole emergency code will go and I will come in here with a new Bill. I am going to hold on to the emergency code until the Dáil has decided on my new Bill. If the Dáil rejects it, I will consider my position, but you may be assured that you need not worry about this code; it will be dead from 1st July, and we will discuss the new Bill on its merits in Dáil Éireann", a very large part of my objection has gone.
And of course if I came in and it was necessary to have some general powers again, the Deputy would say that I was——
I would fight like a tiger against it.
He would say that I was deceiving the House.
No, no.
What is the difference between amending this Bill—getting rid of it in that way—and bringing in a new code? What is the difference between continuing this Bill and having a new code?
I am left in the position of believing that the Government, as a whole, are seeking vague and amorphous powers which, when crystallised, constitute formidable inroads on individual liberty. If the Taoiseach were to say that the whole emergency code were going to go, and that he was going to bring in as part of our permanent or temporary legislation a Bill empowering the Government to do certain things, and would justify each power that he asked for, then I submit it would be for. Dáil Eireann to decide whether or not it wanted to surrender permanently the liberties of the Irish people. If he were to say that he wanted time to give the matter full consideration and to have the Bill adequately prepared, I would be prepared to give him the Bill, provided he put a term to it, say, the 1st July, 1946, and that after that date we would revert to the position we were in on the 1st July, 1939. If he is prepared to do that we will consider it on its merits, but I will fight the Taoiseach across the floor of the House on this Bill. Oireachtas Eireann can give any powers it likes to the Government. It has the right to do that and nobody can question its right. Let us be able to say to the people: "Now you are back with all the freedom you had on the 1st July, 1939, and what do you want to surrender to the existing Party Government?" But this Bill leaves us in the position that, while pretending to give back to the people what we surrendered on their behalf in 1939, we are not giving it back to them at all. The Government are asking for different classes of powers to deal with the new situation that, it says, is going to arise in the post-war world. That is an entirely different thing.
Does not the Deputy realise that this Act, unless it is renewed, will automatically end on the 2nd September? I will have to come before the Dáil this time 12 months, as I had to come in the past, unless the emergency has in the meantime ended to such an extent that we can get rid of all this legislation, and ask for a renewal. This Act, and the amending Bill, has only a year's currency. It will end automatically on the 2nd September, 1946.
Does the Taoiseach give us his word that he will not renew it?
As I have said, I will have to come before the Dáil if I want to renew it. I will have to come here and argue for it, as I am arguing for this Bill. I do not see any difference between Tweedledum and Tweedledee which is such a favourite expression of the Deputy's. What I say is that I am trying to do my utmost to secure that, when we come along this time 12 months, the situation will have been so examined in the meantime that we will be able to say exactly what are the things we require and why. The only doubt I have in the matter is that you want, in a time of crisis, some general clauses in order to cover up cases where there might possibly be a vacuity. Consequently you want to have these general powers.
The Taoiseach wants those general powers permanently?
This Act will go out of existence automatically on the 2nd September, 1946, and if we want permanent powers we will have to come here and ask for them.
And the Taoiseach will give his word that he will come and ask for them.
I cannot foresee the future.
I can foresee it.
It has been suggested that these powers have been abused. I suggest that they have not been abused, and that if we had not got them we would be in a very different situation and would not have had all the talk that we have had from the benches opposite about the situation. It is all very well to crow and talk when the situation has been handled, and when we have been safely through it. I am asking the Dáil—and I believe the Dáil will give them—for such powers as seem to be necessary for the purpose until this thing has been completely examined. We have got rid of a thing which was the subject of a good deal of public criticism and which is related, in every country, to the freedom of the individual, namely, control of freedom of expression.
We are getting rid, by an Emergency Powers Act, of any power to interfere with that. We are getting rid of the powers to interfere with the liberty of the individual, either to arrest or try him except in the ordinary courts. We are getting rid of the power to inflict minimum fines. We are proposing, in some of these cases, to put back words which were removed from this particular section, and if anybody, lawyer or other, thinks that is not sufficient, that it is not legal to do what we are proposing, we are quite prepared to consider an amendment which will do so in a specific and positive form. I have said so much on this whole question that I do not see any use in prolonging the discussion further.
I am afraid that the purpose of the Chair in trying to save time, and the purpose that I had in putting down amendments Nos. 2, 3 and 4, have been very badly served by discussing them all together. If I did not feel that the Chair had a very serious grievance against itself in the matter, I might be inclined to say that I had a serious grievance against the Chair. What I am anxious to know is, what are the elements in the present situation that interfere with, or that are prejudicial to, the preservation of the State and that require an Emergency Powers Act? What is there in the present situation that is prejudicial to the preservation of the State, and what are the things that are impacting against the State and threatening its preservation?
I have indicated several times that the main danger is the danger of a shortage of supplies. The Orders that are required are mainly in connection with that. The only question in regard to restricting them is that we have a number of Orders which are of a mixed character and it would not be easy to relate them definitely and specifically to supplies. The only element in the situation at the moment that demands this is the element arising out of the shortage of supplies, and the regulation which that calls for. We are trying, in this emergency code, to divest ourselves of all the powers which deal with things which do not seem to have relation to supplies. I cannot wipe them all out completely and restrict the measure to supplies because, as I say, there is a number of Orders of a mixed character which might be held not to relate definitely and in their entirety to supplies. We have not had time to segregate them and say: "We have now arranged this into a code which has reference to supplies only."
May I ask, in relation to amendment No. 4 where I asked for the deletion to the reference to the maintenance of public order, what is the basis for requiring the continuance of emergency legislation, and what are the elements in the present situation which are prejudicial to the maintenance of public order that require the maintenance of powers under the Emergency Powers Act?
Again, it is a question of definition and of securing the public safety. We can all understand what are the various things that may be prejudicial to the preservation of the State. The question in regard to the maintenance of public order is not an easy one to answer. It may be a question, as I have said, of queuing. I cannot tell you all the various things that may have relation to public order. It might have relation to a number of things in connection with rationing, and other things. "Public order" in this is a very, very wide term. Perhaps it has a legal meaning but I do not know of any narrow meaning it has. I interpret it in its wide general meaning—preservation of public order. I do not think you can get a wider term. I do not know if I could get any word other than "order".
It is the width of the thing I object to.
I know, but the point is, when you are dealing with the whole of human life and society, you have to deal with wide things. If somebody says that public order has a narrow meaning of a certain type then. I can understand it. I can see, for instance, that the simple thing of arranging for queuing for buses might be a question of public order. For instance, there might be some scuffles, and so on, and something might happen which might lead to what we call a breach of public order.
Do we require emergency powers for that, to-day?
No, but in regard to dealing with it I do not know what are the things we want. Are we going to have an Act of Parliament to deal with queuing?
May I assist the Taoiseach's observations with reference to one Order that has actually been made? I understand now from the Taoiseach that what he requires these powers principally for is in reference to matters of supply. The Government in the course of the last few years made an Order taking away the right of a citizen who was being tried for an alleged offence to have his trial transferred from a circuit court to the Central Criminal Court. What has that to do with supplies? Is it intended to keep that Order in force? That right was given by the Courts of Justice Act to cover one class of cases where a particular individual down the country might think that if he were being tried locally by a local jury certain prejudices might be against him. He was therefore given, under the Courts of Justice Acts, an absolute right of applying, without having to state reasons, to have his trial transferred from the Circuit Court to the Central Criminal Court. It was necessary, apparently, in the interests of public safety, that that should be taken away from the citizen, and an Order was made. Is that Order going to be continued for the purpose of preserving supplies?
I do not know what the particular case is. I am using terms and perhaps I may use them wrongly, but, suppose that as a result of blackmarketing or other operations you had people whom it was desirable should be tried by a central court, there might be such a cluttering up of it, if that were done, that it would be desirable to prevent it. I do not know the particular case so I cannot answer with regard to the particular Order.
I can assure the Taoiseach it has nothing to do with the matter of supplies.
Every one of these Orders will be examined and the thing is to give time for the examination. It may be that that particular Order is not necessary. I cannot remember at the moment the circumstances which gave rise to it or why it was made. It may be that if I knew all the circumstances I would be able to give a very good defence for it and relate it to supplies. I cannot say at the moment.
Surely the Taoiseach realises that it is the wide nature of the idea of public order on the one hand and the relationship between public order and public disorder on the other that makes me raise this question and surely queueing for buses, in 1945, does not require to be dealt with by Emergency Powers Orders.
Picturehouses.
What about transport?
Well, what about transport?
How can you carry on in scheduled areas?
Are we going to have to live under an Act which completely abrogates our whole Constitution because we have to queue up for transport which is, I suppose, a bit scarcer than when we had not to queue up. I do not know whether we will ever get away from times in which we will have to queue up for transport but it is shocking if it is the question of dealing with these ordinary and maybe subtle little difficulties of social life that is persuading the Government to maintain the Emergency Powers Act now.
It is the emergency that is causing a lot of these things with regard to the congestion of traffic, obviously. There is a shortage of petrol and coal. If you had these things, the difficulties would not arise at all.
If the three things I put down there were eliminated, the Government, no matter how much we might object to it, would still have full power under the Emergency Powers Acts to deal with all matters in relation to the provision and the control of supplies and services essential to the life of the community. I do not know whether the Government thinks that transport is a service essential to the life of the community but, as far as anything connected with transport is concerned, you still have it. What I want to get eliminated out of our minds is that there is anything in the present situation that threatens public safety or the preservation of the State. I mean, if the Taoiseach has no better explanation to give us of the public order difficulty, then I can only take it that we will have to rest content in our mind that if there were any serious matter affecting public order we would hear about it. When we are told by the Taoiseach that the thing that comes most readily to his mind as a difficulty with regard to public order is queuing for buses, then I feel that we, perhaps, can afford to sleep easy.
I did not put that as a reason for this. These were phrases that were in the Act originally. The question is, will we eliminate these? I did not put them in for elimination now. It is a question, can we eliminate them? My reason for not eliminating them at the moment is that in some of the Orders that have been made the basis may be one of public order or one of securing the public safety. I have not, nor have the Departments, examined each one of these to such an extent as to be able to say that these things can be eliminated. Deputy Costello raised a particular case. I do not know whether or not, if I had time to examine the circumstances, I would be able to relate even a case like that to a question of either public order or the securing of public safety, because these are very, very wide terms. I would not like anybody to think for one moment, and I hope I have not created the impression in this House, that there is a situation which would warrant our specially introducing these words. The words were there and have been there as the basis for Orders for a number of years. These Orders cannot be got rid of in a moment. These are the bases of some of these Orders. Am I going to sweep away the bases and perhaps destroy the legality of a number of Orders which, if we examined them separately, we might find it would be in the public interest to retain? That is really the problem we are up against.
Amendment put.
The Committee divided: Tá, 32; Níil, 49.
Tá
- Beirne, John.
- Bennett, George C.
- Blowick, Joseph.
- Browne, Patrick.
- Cafferky, Dominick.
- Cogan, Patrick.
- Coogan, Eamonn.
- Corish, Richard.
- Cosgrave, Liam.
- Costello, John A.
- Davin, William.
- Dillon, James M.
- Dockrell, Henry M.
- Dockrell, Maurice E.
- Doyle, Peadar S.
- Everett, James.
- Finucane, Patrick.
- Flanagan, Oliver J.
- Giles, Patrick.
- Hughes, James.
- Keating, John.
- MacEoin, Seán.
- McMenamin, Daniel.
- Mulcahy, Richard.
- O'Donnell, William F.
- O'Leary, John.
- O'Reilly, Patrick.
- O'Sullivan, Martin.
- Redmond, Bridget M.
- Reynolds, Mary.
- Sheldon, William A.W.
- Spring, Daniel.
Níl
- Aiken, Frank.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Brennan, Thomas.
- Briscoe, Robert.
- Butler, Bernard.
- Childers, Erskine H.
- Colbert, Michael.
- Colley, Harry.
- Derrig, Thomas.
- De Valera, Eamon.
- Fogarty, Patrick J.
- Gorry, Patrick J.
- Hilliard, Michael.
- Kennedy, Michael J.
- Killilea, Mark.
- Kilroy, James.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Frank.
- Lynch, James B.
- McCann, John.
- Moran, Michael.
- Morrissey, Michael.
- Moylan, Seán.
- O Briain, Donnchadh.
- O Cléirigh, Mícheál.
- O'Connor, John S.
- O'Grady, Seán.
- O'Rourke, Daniel.
- Rice, Bridget M.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadh Dómhnall.
- Walsh, Laurence.
- Walsh, Richard.
- Ward, Conn.
Tellers:—Tá: Deputies Dillon and P. S. Doyle; Níl: Deputies Kissane and Kennedy.
Amendment declared lost.
Amendment No. 2:—In sub-section (1), before paragraph (a), line 39, to insert a new paragraph as follows:—"(a) by the deletion of the words ‘for securing the public safety' in sub-section (1)."— (Risteárd Ua Maolchatha.)—put and negatived.
Amendment No. 3:—In sub-section (1), before paragraph (a), line 39, to insert a new paragraph as follows:—"(a) by the deletion of the words ‘or the preservation of the State' in sub-section (1)."—(Risteárd Ua Maolchatha.)—put and negatived.
Amendment No. 4:—In sub-section (1), before paragraph (a) line 39, to insert a new paragraph as follows:—"(a) by the deletion of the words ‘or for the maintenance of public order' in sub-section (1)."—(Reisteárd Ua Maolchatha.)—put and negatived.
Amendment No. 5:—In sub-section (1), before paragraph (a), line, 39, to insert a new paragraph as follows:—"(a) by the deletion in sub-section (1), line 6, of the words ‘and services'."—(James M. Dillon.)—put and negatived.
I move amendment No. 6:—
In sub-section (1), after paragraph (b), line 41, to insert a new paragraph as follows:—
"(c) by the insertion in paragraph (j) after the word ‘persons' where it twice occurs, of the words ‘(other than natural born Irish citizens)'.'
Subject to the general weakness that applies to the position of Section 2 (2), paragraph (j) of the original Act reads and implies that the Government shall have power, by Emergency Order, to authorise and provide for the prohibition, restriction, or control of the entry or departure of persons into or out of the State and the movements of persons within the State. My amendment proposes to change that so that it would read that the Government will have power to authorise and provide for the prohibition, restriction, or control of the entry or departure of persons other than natural-born Irish citizens into or out of the State and the movements of persons other than natural-born Irish citizens within the State.
With the war situation reduced to the position that it now has reached, I think that the power of prohibition or restriction of the movements of persons in or out of the State or within the State should apply simply to persons who are not natural born citizens and I think that the movement of natural born Irish citizens in the State should not be restricted; those persons should not be restricted in their movements within the State or in or out of the State except in so far as the ordinary legislation of the State provides for that.
Does not this amendment operate to amend the categories in Section 2 (2) of the Principal Act?
It does, but, in submitting the amendment, I submitted it subject to the weakness we all understand exists in that section and also subject to all the strength that the Taoiseach is insisting exists in law in that section. It is because of the insistence of the Taoiseach on the legal strength of this section that I think something that suggests it is prejudicial to the ordinary citizen should be left here.
I approach the assurance of the Taoiseach in this connection much as a fly would view the invitation of the spider when he asks him to enter his parlour. I am not going into that parlour on any terms. I believe the amendment of Section 2 (2) of the Principal Act is an ineffective procedure and, while I fully appreciate the motives which have moved the Leader of the Opposition in putting down this amendment for the purpose of clarification, I, having perhaps an average kind of mind, feel that to suggest that an amendment of Section 2 (2) of the Principal Act has any effect at all in restraining the Taoiseach in the exercise of the powers that he has under Section 2 (1) is a mistake.
I think the effect of the amendment will be absolutely nothing and will constitute no effective inroad on the absolute power the Taoiseach seeks to retain and I would not be prepared to support it. I do not think anything we can do in regard to sub-section (2) will achieve any useful purpose unless and until Section 2 (1) goes. Tinkering with Section 2 (2) gets us no where.
I think this amendment can be accepted. I only want to say to Deputy Dillon that there is a way of amending this if the Deputy had any doubts. I suggest if he had any doubts of the effectiveness of this, there was a way of remedying it by paralleling sub-section (5). If he wanted to do it we would have been quite prepared to do it, but the Deputy prefers to be able to talk about it because he can put Deputy Costello's opinion or somebody else's opinion up against the opinion I have. I am willing to accept the amendment.
I thought he would. I told you he would do that.
I am quite prepared to accept it.
Exactly. He is most reasonable.
I agree with Deputy Dillon that the Taoiseach is giving nothing at all.
Exactly.
I am in complete agreement with him, but at least Deputy Mulcahy has forced the Taoiseach to accept the position that at least it would appear in the Act as some indication of the views of the House that natural born citizens are not to be subject to these Orders. I will test the bona fides of the Taoiseach now. Will he introduce, on Report, an amendment providing that nothing in this Act, in Section 2 (1), will authorise the Government to affect the liberty or the right of Irish citizens to move in or out of the State in any way they like? Will he do what he says Deputy Dillon could have done —will he bring in an amendment to allay the unreasonable fears of people like myself that this section means nothing?
I see no reason why we should not be able to do that. I will consider that.
So long as he has Section 2 (1) he will yield nothing.
Amendment No. 6 is being accepted?
On this amendment——
Do not oppose it.
This is the very trap I saw and this is what he has been manoeuvring for since the debate began. The position of the Taoiseach is: "Here am I, a reasonable man, ready and willing to meet the Opposition in any reasonable proposition. They put up their amendment. I accept it. Are they grateful? Not at all. The acrimonious, vicious rascals demand more and more and asperse my good name."
The Deputy must deal with this amendment.
Certainly, I am dealing with it. This amendment is the old Rugby gag——
This amendment, in the name of Deputy Mulcahy?
Yes, and I am exercising my right in Committee to debate it. It is a dangerous and a rotten amendment because it appears to the untutored eye to achieve something, but in fact it achieves nothing. This is the old gag that the Taoiseach learned on the Rugby field 40 years ago—passing the dummy. You go down the field, some follow is chasing you and you pretend to pass the ball. The fellow turns round but you have not passed the ball at all and you sail on with the ball still between your hands. The Taoiseach has given a concession. Certainly, he will meet the Leader of the Opposition gladly; he will fall in with Deputy Costello's view; but he has the ball in his hands all the time. Section 2 (1) is still in his hands and he is running like a red-shank with it.
The Taoiseach has stated that he is prepared to accept this amendment.
Yes.
Then why debate it further?
The Taoiseach has agreed to consider bringing in an amendment which will except out of Section 2 (1) this particular power. I am waiting for that.
He has passed the dummy as skilfully as I ever saw it done.
Deputy Dillon says that this is "passing the dummy" but he should have learned at this stage, after being so many years in this House, that it is by tactics such as this the Taoiseach amended the Constitution. I think we can succeed in protecting the interests of the citizens by this amendment in the same subtle way. The protection suggested in the amendment will go a long way towards protecting the rights of the native-born citizen, and will be a declaration of such rights. It leaves the road open for a further effort on the part of the Opposition to protect such interests.
Before the amendment is passed I implore the Opposition not to get into competition with the Taoiseach, because otherwise he will make hares of them. There is no one inside or outside this country his equal in political manæuvring?
How does that bear on the amendment?
On the amendment——
Striking the bench will not bring the Deputy into order.
I suggest that this is a political manoeuvre deliberately designed to mislead the people.
The amendment was not introduced by the Taoiseach.
And the fact that it is going to be accepted shows the type of political manoeuvring with which he is trying to cover up his flank. It does not influence his refusal to abandon the emergency powers. The rest of the debate is going to be devoted, notwithstanding the political manoeuvres with which we are so familiar, and of which this is one——
The Deputy must confine his remarks to this amendment.
I am speaking to it. It will be plastered on the front pages of the newspapers by his instructions, what an immense concession has been made. Apart from his original willingness to part with anything, at the same time he reserves the minimum powers necessary for the safety of the State, which the responsible Opposition takes for delivering up Caitlin Ni Houlihan. The fact is that it does not matter what is put down here.
A division has been taken and a decision given.
And because that is passed I say that no other amendment is needed.
Or discussion.
I do not want a discussion. For God's sake let the Opposition not get into a struggle now with the Taoiseach on the remaining amendments.
On this one amendment now.
On this one let us not get into a struggle about tactics. That is going to conceal the main things that happened to-day. This or any other amendment is not of significance. I beg the Opposition not to give the Taoiseach the chance of saying that he made any material concession when he knows that he has not done so.
If it will allay Deputy Dillon and bring calm to his fearful soul I assure the House that we are not going to take part in political tactics with the Taoiseach. I do not regard this as a concession but as a public confession that I was right all the time.
Question put and agreed to.
What is the position now?
It may need re-drafting.
I take it that we will all be satisfied to have the amendment accepted, and if the Taoiseach, Deputy Dillon or Deputy Costello find any weakness in it they can put down an additional amendment on Report. I am taking the statement from the Taoiseach that it will not be any longer the policy of the Government to interfere with the rights of natural-born Irish citizens.
Can we say "with drawn provisionally"?
I am quite willing.
The Chair's concern is with the phrasing.
What is the meaning of the amendment? What is the use of putting down an amendment when we know what the position is if anybody wants to leave the country?
Whatever about Section 2 (2) of the original Act, and all we have said about it, if we leave it as it is there will be a statement, whatever it may turn out to be that the law courts will read that the Government has authorised to provide for the prohibition of entrance to people outside the State and for the removal of people outside the State. If we are to have that, with whatever limitations it may have, I would like to put down an amendment to show that it did not apply to an Irish-born citizen. If it was only for an article in the daily papers or in magazines that had no influence on law I would like to amend it. If it requires to be copper-fastened by putting in an amendment similar to Section 6, regarding the censorship, let it be done. Considering all the discussion we have had to-day about power going to be used, as distinct from the powers that exist, I should like to feel that something arose which gave a chance of some additional liberty to someone. Acceptance of this by the Government is a gesture that there are people at present who are forbidden to go outside the country, and there may be people forbidden to come into the country, although they are natural-born citizens. However it may be legally examined subsequently as to the real legal effect, I should like to show that in some kind of way we were giving a gesture to these people, and possibly securing that their movements would be free in future.
Is that not so under another statute?
Let them use the other statute.
I accept the amendment.
Is amendment No. 6 accepted?
I accept that, but in order that there may be no misunderstanding. I want it to be clear that it is not to be taken as an expression of my opinion, which it is not, and it would come more properly from Deputy Costello, but if amendment No. 7 is following the intention of amendments Nos. 5 and 6, I am prepared to accept it.
Yes, but the Taoiseach has a whole serious of draftsmen to deal with the matter.
Yes, but I wanted it to be clearly said that I do it to convenience the Deputy.
I think it will be found that the Parliamentary draftsmen will agree that I am right.
I am prepared for it.
Is amendment No. 7 being withdrawn?
No, Sir. I move amendment No. 7:—
In sub-section (1), after paragraph (b), line 41, to insert a new paragraph as follows:—
(c) by the insertion in paragraph (m) after the word "persons" of the words "(other than natural born Irish citizens)".
The paragraph (m) referred to in the amendment, as it reads at the present time, would "authorise the arrest without warrant of persons who are charged with or are suspected of having committed or being about to commit or being or having been concerned in the commission of an offence under any section of this Act or any other specified crime or offence". My amendment would change that by the insertion of the words, at a suitable point, "other than natural born Irish citizens"; so that it would then authorise the arrest without warrant of persons other than natural born Irish citizens who are charged with or suspected of ...and so on. I suggest that under the circumstances there is no reason why natural born Irish citizens should be arrested without warrant for either specified crimes or offences or for any act committed under the Emergency Powers Act. There should be no difficulty under present circumstances in having prepared any necessary warrant required for the arrest of natural born Irish citizens.
I accept that.
Amendment No. 7 agreed to.
I move amendment No. 8:
In sub-section (1), after paragraph (b), line 41, to insert a new paragraph as follows:—
(c) by the insertion in paragraph (o) after the word "persons" where it first occurs of the words "(other than natural born Irish citizens)".
Does the Deputy wish the same thing here?
It is the same thing applying to the searching of persons in circumstances or by persons specified or indicated in such Emergency Order. That is, I think that the power to authorise or provide for the searching of persons should not apply, outside the ordinary law, to citizens.
I accept that, but may I ask with respect to these two, whether they are put in in the same sense as the others?
Yes.
Amendment No. 8 agreed to.
I move amendment No. 9:—
In sub-section (1), after paragraph (b), line 41, to insert a new paragraph as follows:—
(c) by the deletion of paragraph (p).
Paragraph (p) of sub-section (2) authorises the Government to "suspend the operation of or amend or apply, with or without modification, any enactment, other than this Act, for the time being in force or any instrument made under any such enactment". I think the time has come when it should not be possible to change any law on the Statute Book merely by the Government issuing an Emergency Order, and I therefore ask the Government to delete paragraph (p) so that in the case of such statutes as exist, if any amendment of them is required, they would simply be amended by legislation introduced in the House and passed by the House.
I am afraid I cannot accept that, because when you are making any Orders you have to have reference to existing legislation. As we are talking about Orders having the effect of legislation you might as well say that you could bring in an Act without reference to any other Act that had been previously passed and that, in so far as it runs contrary to what is contained in the other Acts, it would not affect them. These Orders, when made, must have the effect of statutes, and, consequently, to the extent to which they are to be effective, if they are contrary to other statutes, these statutes must be repealed to that extent. As a matter of fact, if the Deputy will look up the index of the various Orders that were made, he will find that there are several pages indicating the statutes that have been affected by the Orders that were made. Accordingly, it would be quite impossible for me to accept that. It would be the cause of endless confusion. When we make a statute, ordinarily, to the extent that any statute is contrary to it would mean that it is automatically repealed. Consequently, it would not be possible to accept this amendment.
Is the amendment withdrawn?
No, Sir. There may be something in what the Taoiseach says, that some of the Orders in existence actually do amend certain statutes, and I can understand that as far as certain aspects of the supply orders are concerned there might be difficulty in that regard, but surely, under present circumstances, there should or could be some modification of this power. Again, I am moving the amendment on the understanding that the Government has full power, under sub-section (1), to deal with it, but I do think that it is too much to ask the House to leave, under present circumstances, the power with the Government that they may amend or wipe out any Act at all by simply issuing an amending Order. I say that there ought to be some qualification of this if it is to remain at all.
I am afraid it would pass the wit of man to devise one. There is, of course, the exception again, "other than", and again I say that if the Opposition will feel happier about it I would be prepared even to consider bringing in an amendment. Now, I say "consider", because I do not know how many things would be involved, but I would be prepared to consider bringing in an amendment saying we will deal with this Act.
If there is any Act of Parliament it should be dealt with in this House and not by Order of the Government, and we could not even recognise the power by acquiescence.
That would practically nullify the power of making Orders.
Not necessarily.
Yes, in a large number of cases it would make it practically impossible.
Amendment put and declared negatived.
Section 5, as amended, put and agreed to.
Section 6 and 7 put and agreed to.
SECTION 8.
I move amendment No. 10:—
Before Section 8 to insert a new section as follows:—
Section 5 of the Principal Act is hereby amended:
(a) By the insertion at the end of sub-section (7) of the words "The court may in addition direct that any licence or licences to deal in any such goods and chatteis held by the person so convicted shall be withdrawn for a term not exceeding 18 months".
(b) By the insertion before sub-section (8) of a new sub-section as follows:—
(8) The Minister shall not add to any punishment inflicted by the court under the foregoing sub-section any additional punishment by way of deprivation of trading facilities, licences or otherwise.
In all the discussions on this Bill, we have accepted the situation that the Government may require power to deal with supplies, but we have vigorously opposed the continuance of powers which interfere with the liberty and freedom of the people. The Taoiseach has insisted on retaining those powers. In my amendment, I want to ensure, while retaining power to deal with supplies and their distribution, that the dispensation of justice will be conducted in public. At present, if a trader is convicted and if a penalty is imposed upon him by a person qualified to impose such penalty, it invariably happens that a further court sits in camera in the Department of Supplies and that an additional and more severe penalty is inflicted. His licence to sell certain goods may be withdrawn.
That very often means a more severe penalty, than the penalty properly inflicted in court. It is not my intention to condone any offences committed under any of the Orders which have been made, but no Minister or politician should arrogate to himself the administration of justice. I do not think that it was the intention of this House at any time to give a Minister power to dispense justice. We want to ensure that, when an offence which is so serious that the trader should not be permitted to continue to distribute particular goods or commodities is committed, his licence should be revoked not by the Minister for Supplies but by an act of the court, after evidence given in public with which evidence the public will be conversant. If this were done, there would be no doubt in the public mind as to the proper dispensation of Justice and there would be no question of political decisions one way or another. I do not suggest that that has happened but the administration of justice in camera is always open to that implication. Where justice is dispensed by a Minister or his Department their action is open to the implication that political influence or "pull" may be used by some people and that they may get off more lightly than others.
Often times, due regard is not had to the reasons why a justice convicts a man of an offence. I know a case in which a trader was convicted on the evidence of a convicted robber under a suspensory sentence. The justice dismissed all of the seven or eight charges, with one exception in which he imposed a nominal penalty. His idea in imposing that penalty was, I think, to indicate to traders generally that, owing to our severe shortage of supplies, we were not going to stand for any suspicion or doubt as to the honesty or integrity of persons authorised to deal with the distribution of essential goods. Without any reference to the merits or to the reasons why the justice convicted, the Minister afterwards revoked the licence of that trader. The revocation was, in my opinion, not justified. The strange thing was that the revoked licence was handed over to an individual who was notorious as a "blackmarketer" in the particular district. My amendment aims at stopping all that and ensuring public confidence by having the administration of justice carried out in public court by qualified people. It is the function neither of the Minister nor of the civil servants to dispense justice in a Department in this city without even giving the persons concerned an opportunity of defending themselves. I hope that, at this period of the emergency, the Taoiseach will see his way to accept the amendment.
I support the views expressed by Deputy Hughes, and I strongly urge the Minister to accept the amendment. It will be conceded that our courts of summary jurisdiction are fair and reasonable and are quite competent to deal adequately with any cases which may come before them so as to ensure that justice be done. In this connection, a view was expressed here which should warn the Taoiseach of the danger of handing over to Government Departments the function of imposing penalties. The Minister for Industry and Commerce expressed the view that district justices were not immune from the influences of the local golf club. Are we to take a view which indicates that we have no confidence whatever in our judicial system and that we are to place all confidence in a Government Department far removed from the lives and means of livelihood of our people? A court functioning in a local area hears the evidence for and against the person concerned, and is cognisant of all the circumstances in connection with the case. For that reason, it can be relied upon to do justice and to impose such a penalty as is necessary to deter persons from the commission of similar offences. I support this amendment so far as it goes, and I hope that the Taoiseach will agree to accept it. If he so agrees, or if he undertakes to introduce a similar amendment on the Report Stage, I suggest that he deal also with another type of case. I refer to cases dealt with by a Government Department without reference to a court—for example, cases of the suspension or cancellation of hackney-car licences. In such cases, there is no trial in court. The person accused is deprived by a Government Department of his licence to carry on his business. If the Taoiseach accepts this amendment, he should be prepared to bring in on Report Stage an amendment to cover that particular aspect of the question. Surely it will be agreed that there is grave danger not only in taking from a citizen his means of livelihood but that there is also grave danger in transferring that business to some other trader. There is grave danger of favouritism and partiality where a licence to deal, for example, in tea, sugar or commodities of that kind is taken from a retailer and handed to some other person who, as Deputy Hughes pointed out, may not be of any higher repute than the person from whom the licence is taken. I appeal, therefore, to the Taoiseach to accept this amendment in the spirit in which it is moved.
I regret I cannot accept the amendment. Power to revoke a licence is an essential power for the Minister to ensure the proper distribution of goods in short supply. I think that that must be clear to everybody. The administration of a scheme of that sort and the responsibility for seeing that goods in short supply are properly distributed is the responsibility of the Minister and they cannot be transferred to the courts. There is no means by which the courts could function in that way. The power of controlling the distribution of goods is an essential power which the Minister must have and his business is to see that those who are privileged— everybody cannot engage in trading in these goods and therefore it is a privilege—to engage in this trade do not abuse that privilege. They are selected people and to the extent to which they are selected they are privileged.
They were all in the trade before the emergency.
Everybody in the business was given a licence at the start, but once you say that nobody else can come in, the people who have got these licences enjoy a certain privilege. Surely no citizen can engage in these trades except those who were in the business formerly? The main thing about it is that they have that privilege on the understanding that they will obey all the regulations which are issued to them for the distribution of goods in the interests of the community. If they flagrantly disobey or break these regulations, surely the Minister must have power to take away that privilege from them? There is no other way of working it. This is done not as a punishment as such. It may have that effect but it is not intended as a punishment as such. It is intended primarily to see that goods are distributed properly to the community in accordance with the regulations made. Licences which have been revoked were revoked because the holders of these licences were guilty of acts which affected the well-being of the community. They were people who were licensed to sell commodities such as sugar, butter, kerosene, bread and flour. The licences were practically restricted to the distribution of these goods. Are we going to say that the Minister is not to be allowed to see that these vital commodities are properly distributed to the community and that he is not to be allowed to satisfy himself that the people who have the duty of doing that in virtue of their licence are carrying out their duties properly? How can he do his work if he is to be prevented from taking away licences from people who have proved themselves unworthy distributors? I am afraid that if you were to do that, you would take away the power from the Minister to regulate the distribution of goods in short supply.
I should like to put this point to the Taoiseach. A principle of our law is that no man should be placed in jeopardy twice for the same cause. If you convict a man in a court of law for an offence against State regulations or Orders, it should be possible for the court to impose a sufficient penalty on him there and then to purge him of his offence whatever it may be, great or small. That should be the end of the matter but under this administration you may get the position that a man is convicted of a purely technical offence and that that conviction is followed by forfeiture of his licence. I am not quarrelling so much with that aspect of the matter. From the purely legal point of view it is probably to be justified but you have got to consider the effect of a decision of that kind. When you deprive that man of his licence, you automatically transfer the licence to another trader, a rival in business, and immediately you interfere with the goodwill of the affected person. It is not the mere matter of the forfeiture of the licence. You set about, as a State institution, to destroy his goodwill and to transfer the customers of his particular business to a rival business.
That is the aspect of the matter with which I quarrel most. Whilst a good case could be made for the transfer of an agency or of distribution to a rival trader you get that effect. It means that you are virtually putting a man out of business. That is done in many cases to my knowledge throughout the country because if you send the customers of a shop for particular goods to another shop then it is almost a certainty that the customer will spend the rest of his money in that shop and that he will find it inconvenient and cumbersome to return to his former shop. Under the licensing laws in certain cases the court may order the forfeiture of the publican's licence. I know that that case is very remote and perhaps there is no analogy but in the case that Deputy Hughes has mentioned I understand the offence was a purely technical one. You have the position that the business was transferred to a man who was suspected of blackmarketing. I venture to suggest that if a transaction like that were thrashed out in open court, the blackmarketeer would certainly not be the person selected for the transfer of the licences.
The main point I want to make is that it is customary in our law that a man should not be placed in jeopardy twice for the same offence. You are not only convicting him in open court, but you follow that up by forfeiture of his licence, and, in effect, you are putting him out of business. Not only do you forfeit the licence in respect of the offence for which he is convicted, but the practice is growing that where a man offends, say in the matter of the supply of tea, he will automatically find himself deprived of a sugar licence and other licences as well. I fail to see the justification for that. If forfeiture takes place, it should be merely in respect of the particular licence against a condition of which the man has offended. When you come along and deprive him of other licences, it is hard to justify an administration of that kind. There is, as Deputy Hughes has pointed out, always a suggestion or implication that political influences can be brought to bear in respect of certain individuals, and that certain individuals will receive a transfer of licence in case of convictions of that kind. I know that has happened in certain cases—whether by accident or design, I am not going to say—and these things give rise to a great deal of discontent. For that reason, I ask the Taoiseach to reconsider the matter, to give some power to the court, to give extra punishment, if you like, to the individual offender. I would prefer to see any of these black marketeers jailed. rather than that their licences should be forfeited, because it penalises perhaps a family business and deprives I them of their means of livelihood. Once you lose your goodwill in business, it is very hard to get it back, and it is very hard to get a customer back once he goes to another shop. That is the aspect, with which I am concerned, and for that reason I should like to see these matters thrashed out in open court, the court, having power, if necessary, to declare the licence forfeit. I would not, however, go so far as to extend that to forfeiture of other licences. Forfeiture should be confined to the licence in respect of which the individual offends.
Deputy Coogan has put very clearly our point of view on this matter. It may be all right for the Taoiseach to say that it is a privilege which individuals get from the Minister for Supplies to trade in certain commodities.
I did not say that.
As I said already, the Taoiseach should remember that the traders who were in existence before the emergency got licences to deal in commodities in short supply, and, while I do not want to condone any. offences committed by individuals, I suggest that where offences are committed and penalties are to be inflicted —no matter what the Taoiseach says about withdrawal, cancellation or revocation of a licence, it is a penalty, and the biggest penalty of all—the place in which that penalty should be imposed and in which justice in the particular case should be dispensed is the open court and not the Department, so that the public will fully appreciate the reasons for it.
The Taoiseach must appreciate that it is a reflection on an individual whose licence is withdrawn. They are all put in the same category so far as cancel lation of licences is concerned. One individual may suffer revocation of his licence for such a technical offence as failure to keep his returns up to date, to keep his tea balances properly, while another may suffer revocation of his licence for engaging in black market activity. They fall into two distinct classes, but the fact that the licence is withdrawn in both cases puts both traders into the same category, so far as the public are concerned. Then, as Deputy Coogan has pointed out, when it comes to the question of the transfer of that licence, a civil servant goes down and makes the transfer. To whom and on what ground? Why should I be compelled by the action of a civil servant, if I am a member of a small community in a village, to trade with an individual into whose shop I do not want to go, into whose shop I have never put a foot and with whom I have an objection to trading? Yet, at the intervention of the Minister, my right as a citizen to choose whatever trader I like to deal with is ignored and I am compelled to go to an individual to whom I very much resent going.
Surely the Taoiseach cannot justify such a situation. If it is necessary to revoke an individual's licence, surely citizens are entitled to select the trader with whom they will deal and should not be compelled, at the will of the Minister or of the Government, to deal with traders whom they do not want to touch. I can assure the Taoiseach that the situation generally in the country is highly unsatisfactory. He appears to be very complacent about it. The matter has been discussed several times and I suggest to the Taoiseach— I do not want to be unreasonable—that at this stage of the emergency we should make some effort to deal with that unsatisfactory situation. Some effort should be made to change the regulations governing the whole matter. If necessary, I will go so far in meeting the Taoiseach as to change my amendment to read that "on the recommendation of the court the Minister may revoke a licence," but I think the open court is the proper place in which to make the decision.
Deputy Hughes says that the situation in regard to licences for traders and so on is most unsatisfactory. It may be, but if he wants to get it into a terrible mess altogether, the Taoiseach will accept the Deputy's amendment. I do not agree with Deputy Hughes that the situation is unsatisfactory in the circumstances in which we are placed, but we can get back to a satisfactory position again only when all rationing will have been done away with. Any system of rationing is, from the point of view of the general public, unsatisfactory, irritating and troublesome. It is troublesome for the traders, with all the forms and Orders which have to be complied with and doubly troublesome for the general public; but the interests which must be considered in the first instance are those of the general public, the people who have to get their supplies from traders and shopkeepers.
I am familiar with a case of the cancellation of a licence which happened only last week. It was a regrettable kind of case and one in which I was sorry to see the licence being withdrawn, but the Minister was adamant in that case, as he has been adamant in other cases in which he considered the offences rather serious. If, however, we want to make the position still more serious and more difficult for the general public, the best way to do that is by accepting the proposal put forward by Deputy Hughes. It will only make confusion worse confounded.
The system, generally speaking, from my knowledge of the country and of rural areas in particular, has worked reasonably satisfactorily in the circumstances for the people who have to get their rations every week from the local shopkeeper. It is my experience that the situation is not as unsatisfactory as Deputy Hughes seeks to suggest and I think it would be unwise to adopt the suggestion that it should be altered in present circumstances.
We will get nowhere in our consideration of this matter if we do not keep clear and separate in our minds the question of court action and what the duties of the court are and administrative action by the Minister. The legal maxims quoted by Deputy Coogan have reference to the trial of definite offences before the court. That is not the position here at all. The position is that the court decides whether a particular person is or is not guilty of the offence with which he is charged and allocates the punishment for that offence. The courts have nothing to do with, and have no responsibility for, the control and distribution of goods in short supply. That is the duty of the Minister, and you must give him powers of licensing. We gave them to him—we gave him the power to take those powers, if you like—in order to do that effectively. In the case of a person who has broken those regulations, and has been found guilty of an offence, he can have no more confidence in that person carrying out the regulations and acting properly in the future than a person who would keep in his employment somebody who had been found guilty of embezzlement. We have a number of cases in the State service, for instance, where people are guilty of an offence and are punished for that offence. For their offence against the ordinary law they are punished in the ordinary way, but over and above that—and, of course, it is a tremendous extra punishment—the State cannot keep them because the State cannot have confidence in them. In the same way the Minister for Supplies cannot have confidence in those people, who are more or less acting as agents for the distribution of those supplies.
We know perfectly well that we are not out of the wood yet as far as a fair distribution of supplies is concerned. There was a time when we had to come to the House and say that the powers which we had were not sufficient, that because there was a difference of opinion, a difference of attitude, between justices in various places we were compelled to ask the House—we had great reluctance in doing it—to provide for the imposition of minimum penalties, to that extent depriving the justices of their discretion. We only did that because the public interest demanded it. At this stage, are we going to take away from the Minister the power of controlling the agents who are going to be used for the distribution of those goods? We regard it as being far more valuable and far more effective, and making for the public interest very much more, for instance, than the mere hauling up of a person before the courts, charging him with an offence and having him fined. It is by the proper elimination of people who have proved themselves untrustworthy that we can achieve our purpose. It is not intended to be an added punishment for a particular offence. It is simply that the Minister has no confidence in those people to carry out a very important function in the community at the present time. We would be very foolish indeed if we took that power away from him. That is not to say that we are complacent about it. That is not to say, with regard to some of the remarks made from the opposite benches about the terrible punishment it is for an individual, that those things are not to be borne in mind by the Minister in depriving a person of his licence. I feel perfectly satisfied that the Minister does realise what it means to revoke a licence, that he does understand that element of goodwill, and so on, which would be lost.
It has been suggested that there may appear to be political favouritism in the transferring of a licence from one person to another. Unfortunately, under every licensing system, where you pick out people and put them in an exceptional position in the community, it may be suggested that the Minister in charge is affected by political leanings, by political bias. That is one of the objections which can be pointed out in an administration of that sort, but, like some of the other evils we have had in this emergency, it is choosing the lesser of two evils. Were we to have that evil, which may bear more heavily on a few individuals, or were we to have the evil of the black market and all the other things associated with it? That is the choice we have, and I think, if you bear in mind what the alternative can be, you will not attempt to deprive the Minister of the powers which he has got.
There is no use in blinding our eyes to the fact that the system of the Minister, in effect, in imposing additional penalty to that imposed by the court, is a horrible system, but, subject to that general consideration, I agree with the Taoiseach. I cannot in conscience recommend the House to withdraw this power from the Minister. I hate the power. I hate its application. But I believe that, if you took the power away from the Minister, the black market would get out of all control. That is the plain truth. The black market is a detestable excrescence on any community which fortunately is only conceivable in times of scarcity. It rather makes my hackles rise when I hear the Taoiseach comparing the merchants of the country, in their relations to the Minister, with civil servants or public servants. Public servants are public servants; independent citizens are not the servants of the Government.
That is not material to the example. The private citizen would have the same reluctance——
I can see the point the Taoiseach is getting at, but it is a very dangerous frame of mind to get into to say that, because you discharge a public servant who has been convicted of embezzlement, on the grounds that you can no longer trust him, therefore you should take away a man's right to trade because the Minister no longer trusts him. We are not all the servants of the Minister. I do not care a fiddle-de-dee what the Minister for Supplies thinks about me or does not think about me, and it is the very essence of liberty that I should be entitled to say: "I do not give a fiddle-de-dee what any Minister thinks about me so long as I live within the law." In this case, we not only have to give satisfaction to the law for any infringement but we have to satisfy the Minister for Supplies that, if we did commit a breach of the law, it was through exceptional circumstances or by mistake, and that there is no likelihood of our falling into the same action again. We have got to get the good opinion of the Minister for Supplies on our characters, or we may, in addition to the penalty imposed by the law, suffer the penalty of having our licence withdrawn.
That is a detestable situation. It robs every individual citizen of his right to go in and tell the Minister to go to hell if he wants to tell the Minister to go to hell, and that is one of the most treasured rights any citizen can have—so long as he is within the law to tell the Executive to go to blazes if he wants to. But I agree with the Taoiseach that, in the exceptional situation in which any society finds itself when essential commodities are scarce and great care has to be taken to ensure equitable provision, that right has to be suspended. It is a bad thing, but, as the Taoiseach has said, it is the lesser of two evils. I cannot defend it to the House on ethical grounds, but I cannot in conscience say to the House that they ought to strip the Minister of that power. No one feels more deeply than I do on such matters, but I warn you —I speak from experience, for I have been handling rationed goods, wholesale and retail, ever since the emergency began—that if you take from the Minister that power of withholding licences the black market will get out of all control.
I am bound to say this, from a pretty wide experience, that I have had innumerable cases brought to my attention by my constituents, and I have encountered numerous cases in my own business experience where licences have been withdrawn, but I cannot remember a case in which a licence was withdrawn and not restored where I could honestly say that I believed the Minister had acted in a vindictive way. I cannot remember a case that came under my notice in either of those two spheres where I was not constrained to admit to myself that, if I had been in the Minister's shoes and responsible for the distribution of essential materials, I would have made the same decision as he made. Other Deputies may have had different experience. When you are dealing with these licence cases you want to know the ropes before you undertake to pass judgment on the propriety of withdrawing a licence or not. One man may fall into an error three or four times and yet be perfectly bona fide, honest and straight, but just incompetent. Another man, if he falls into the same error twice—well, you may be pretty sure he is up to black market operations. It is only when you are in the trade and know the tricks of it, as the Minister's officials have had to learn them, that you are able to distinguish in these cases. Doubtless individual cases of hardship have emerged, but I could not in conscience say that these regulations were administered with unreasonable harshness.
I believe that if any Deputy knows of a case where he is perfectly certain that the person victimised was acting bona fide and had fallen into an error through pardonable incompetence, and is prepared to satisfy a reasonable man that he will take reasonable measures to correct his incompetence, he will get his licence back, but if you have a perfectly bona fide but hopelessly incompetent person to deal with, and if there is no hope of getting him to understand and observe the regulations, what can the Minister do but take the licence from him, so that the rations going into his shop for his customers will not be improperly used or otherwise disposed of? Therefore, my advice to the House is to leave these powers to the Minister. As a Limerick Deputy has said, all we can hope for is to wait until the need for rationing disappears altogether, and then it, and the many other inconveniences associated with that system, will go.
The Taoiseach was very strong in emphasising that it would be impossible to administer the rationing system without the Department of Industry and Commerce having the power to cancel licences and transfer business elsewhere. Now, even if we accept that, surely there is no reason why the power which the Taoiseach is seeking should not be given to the courts. Visitors to the country have commented on the efficiency and impartiality of our district courts. I think that the rejection of Deputy Hughes' amendment would amount to a vote of censure on our judicial system.
Surely the distribution of goods is not a function of the courts?
The courts should be given power to cancel licences.
And to arrange for the distribution of goods in short supply?
If the courts are considered competent to take from a man his licences to sell alcoholic liquors, because he may have broken some regulation, surely, they should also be competent to deal with the distribution of licences for tea, sugar and other commodities. If they are not considered competent to do that, then they are not capable of safeguarding the interests of the ordinary community which is their first function. The Taoiseach seems to hold that the courts are incompetent, but there is a very strong feeling in the country, a feeling which has been confirmed by the experience of many Deputies, that the Department of Supplies, or the Department of Industry and Commerce is not so competent in dealing with these questions.
In the case of the Department of Industry and Commerce, and of the people in it who are called upon to deal with this question, you have first of all a city Minister. He may not know all the details of business in a rural community, and city officials operating from Dublin may not know the full implications of an ordinary rural business. For example, you take away from a rural village, or provincial, shopkeeper his power to deal in ordinary commodities, such as tea and sugar. You deprive that man of his business. You do more: you deprive him of the power to collect debts which may have accumulated over a long period. The ordinary man carrying on business in a rural area gives a certain amount of credit, and recovers his debts in the ordinary course of business. Perhaps he is a buyer, as well as a seller, of goods from the community.
In that way he can recover his debts. In this case he is penalised when his business is taken completely from him without any reference to a court or a tribunal. He is deprived of his entire means of livelihood and of the opportunity of collecting the debts due to him.
There is another aspect of this to which I have referred, and it is that there is quite a number of people penalised under these Orders without being brought into court at all. A case was brought to my notice of a man who was cruelly victimised by having his entire means of livelihood taken from him for three months. At the time the man was actually in a sanatorium, and his wife and three or four small children were trying to carry on in his absence. As I have said, his business was closed down for three months, although the man had never been brought into court.
Amendment put.
The Committee divided: Tá, 22; Níl, 55.
Tá
- Beirne, John.
- Bennett, George C.
- Blowick, Joseph.
- Browne, Patrick.
- Cafferky, Dominick.
- Coburn, James.
- Cogan, Patrick.
- Coogan, Eamonn.
- Cosgrave, Liam.
- Dockrell, Henry M.
- Doyle, Peadar S.
- Finucane, Patrick.
- Giles, Patrick.
- Hughes, James.
- Keating, John.
- MacEoin, Seán.
- McMenamin, Daniel.
- Mulcahy, Richard.
- O'Donnell, William F.
- O'Reilly, Thomas.
- Redmond, Bridget M.
- Reynolds, Mary.
Níl
- Aiken, Frank.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Brennan, Martin.
- Brennan, Thomas.
- Briscoe, Robert.
- Burke, Patrick (Co. Dublin).
- Butler, Bernard.
- Childers, Erskine H.
- Colbert, Michael.
- Colley, Harry.
- Corish, Richard.
- Davin, William.
- Derrig, Thomas.
- De Valera, Eamon.
- Dillon, James M.
- Flynn, Stephen.
- Fogarty, Patrick J.
- Gorry, Patrick J.
- Hilliard, Michael.
- Kennedy, Michael J.
- Killilea, Mark.
- Kilroy, James.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Frank.
- Lynch, James B.
- McCann, John.
- Moran, Michael.
- Morrissey, Michael.
- O Briain, Donnchadh.
- O Cléirigh, Mícheál.
- O'Connor, John S.
- O'Rourke, Daniel.
- O'Sullivan, Martin.
- Rice, Bridget M.
- Ryan, James.
- Ryan, Robert.
- Sheldon, William A. W.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Walsh, Laurence.
- Walsh, Richard.
- Ward, Conn.
Tellers: Tá, Deputies Doyle and Bennett; Níl, Deputies Ó Ciosáin and Kennedy.
Amendment declared lost.
Sections 8 and 9 agreed to.
Schedule and Title agreed to.
Bill reported with amendment.
When is it proposed to take the Report Stage?
To-morrow.
Yes, if amendments will be accepted up to lunch time to-morrow. The only amendment, from my point of view, likely to be put in would be one to insert in a positive way those things that were agreed to in amendments to-day.
When I was talking to Deputy Costello, I thought he wished the Government to do it, it being understood that we were doing it as a matter of convenience.
It would convenience me very much if the Parliamentary draftsman would do it. What I intended to do was to put down an amendment inserting the new amendments, so that the Bill would read:—
"Nothing in the Principal Act shall be construed as authorising the Government by Order under the said section.
(a) to authorise and provide for the prohibition or restriction or control of the entry or departure of natural Irish citizens into or out of the State and the movements of natural born Irish citizens within the State."
Similarly, it is proposed to repeat (m) and (o) of Section 2 (2) of the Principal Act, replacing the word "persons" by "natural born Irish citizens".
If the Deputy wishes to have two sets of amendments, very well. It seemed to me to be a waste of time.
It is understood, then, that the Government will put in these amendments.
When it is examined, there may be something I am not aware of and it may mean I may have to say that we cannot bring it in. It would appear to be a bit foolish for me to put down an amendment and then say I wished to withdraw it, that is, if I found that it was necessary to do so. Therefore, it may be better for the Deputy to put down his amendment.
Then I will do so, in order to safeguard the particular position and if the Parliamentary draftsman, understanding my intention, thinks he had better put in his own draft, both amendments could appear before the House.
That would be the best way.
I understand there is a Standing Order that the Report Stage of a Bill cannot be taken under a given time after the Committee Stage.
I have no knowledge of any such Standing Order.
If there were such a Standing Order, I would not avail of it, but I would go on record as specially abstaining from availing of it in that case.
It does not exist.
If there were a hypothetical case, I would put that point: I heard that said here before, when the House passed a Bill of this character without discussion. That was called in evidence to emphasise the unanimous agreement with the Bill, although in fact it had been passed at a discussion at the Defence Conference before it came to the House.
I presume the Deputy does not suggest that this Bill has gone through without discussion.
No, nor with the unanimous consent of the House.