Defence Bill, 1951—Report Stage.

I move amendment No. 1:—

In page 13, to delete section 1 (2), lines 14 and 15,

Section 1 of this Bill provides that "This Act may be cited as the Defence Act, 1951." Subsection (2) which I propose to delete provides that:—

"This Act shall come into operation on such day as may be fixed therefor by order of the Minister for Defence."

I object to that provision in this Bill on a number of grounds. First and foremost, under the constitutional requirements governing Bills and Acts, a Bill passed by the Dáil, and passed by the Seanad shall become law as and from the day on which it is signed by the President under the Constitution. That is the fundamental law dealing with Bills. That particular article of the Constitution says that it shall, unless the contrary intention appears, come into operation on that day. It further says in the same article— Article 25—that every Bill signed by the President under the Constitution shall be promulgated by the President as a law by the publication by his direction of a notice inIris Oifigiúil stating that the Bill has become law. The ordinary requirements are passing by the Dáil, passing by the Seanad, signing by the President and promulgation by the President, and then the Bill becomes law.

I am aware that in complicated Acts dealing with many different matters a practice has developed of providing that a particular section of an Act may come into operation on a date to be fixed by the Government or fixed by resolution, or to be decided by the Minister or in some other way. One can understand that practice in a complicated Act dealing with many things—insurance, for example—where it would be impossible to bring particular sections into operation until other sections had, in fact, been in operation.

I know—and I would like the Minister to deal with this point—of no simple Act which has been passed by this House leaving its operation to take effect on a decision of a Minister. I know of no precedent for it. There may be a precedent but I am not aware of it. If there is a precedent, it is a bad precedent.

After something over 25 years we are endeavouring now in this Bill to provide a new Defence Act, and when this is passed by the Dáil and by the Seanad and signed by the President it ought to become law. I think this is important because there has been, for some reason that I cannot understand, a nibbling into what one might term constitutional practice and constitutional usage, and that nibbling has gone on apparently without any sound reason. I am taking the opportunity now—the first time I have got it—to object to it and to say that this Bill should become law, like any other Bill, when it is passed by the Dáil and the Seanad and signed and promulgated by the President. If we leave that provision there a Bill that we might want to operate might not be brought into operation for one, two or three years, or more.

The Minister will indicate, of course, that he is anxious, and the Defence Forces are anxious, to have this Bill brought into operation as quickly as possible. However, there are many slips between the cup and the lip; the very best intentions may become impossible of fulfilment, and we could be in the position that this House and the Seanad and the President all having carried out their constitutional functions, we could be still left without the operation of this particular Bill.

I raised this point and we discussed it on the Committee Stage and the Minister indicated a reason then for this particular provision. He said:—

"The Deputy will realise that regulations have to be made, and it is necessary to have a definite time for that. They cannot be made until the Bill has been passed by the Oireachtas. If the Bill came into operation on the day on which it was signed by the President, which would be the effect of the proposed amendment, there would be absolute chaos."

The Minister went on to say that the Army would require some time to study the Bill and to make regulations under it and that without these regulations the Bill could not be put effectively into operation. The Minister obviously was advised that that was the position.

In studying the Bill more closely, I found that the draftsmen had made every provision for the coming into operation of this Bill on the day on which it becomes law on promulgation by the President. There are several sections specifically providing that every regulation in existence at the date of the passing of the Bill will carry on until such time as that regulation is suspended by new regulations. Every conceivable transitory provision has been provided. Section 296 provides that all these regulations will continue in full force. It says:—

"Every existing statutory instrument shall be deemed to have been made under this Act and may be revoked or amended accordingly and, until so revoked and subject to any such amendment, shall continue in force."

There is no point in saying that time is required for the purpose of making new regulations. The old regulations carry on and have full statutory effect. There is provision in Section 295 dealing with existing Reservists. There is provision in Section 294 dealing with existing Regulars and that particular section covers almost four pages of provisions for the operation of the section. Section 293 deals with existing Regular officers and existing Reserve officers, who are deemed to be commissioned under the Act. Section 292 says that the existing permanent force and the existing nursing service shall, on the operative date, become and be the permanent Defence Force. The operative date for the purpose of the Bill is defined in the definition section as the date on which the Bill becomes law.

I would ask the House not to agree to this form of legislation, where a simple Bill—and I describe this as a simple Bill, a forthright Bill—dealing with the Defence Forces is in question. I ask the House to decide that there is no necessity for this nibbling into our constitutional procedure.

I have watched over a number of years and I see that once a nibble is made, whether it is successful or not, that nibbling is continued in subsequent Acts. As I have said, here every conceivable provision for bringing this Act into operation on the day it is signed by the President is provided in the Act. Consequently, there are no grounds for providing that it is not to come into operation until the Minister decides, by Order, to bring it into operation.

I think it is unwise to have legislation brought into effect that way. I think it is bad. It is a very bad precedent. I certainly object to it as strongly as I can.

Major de Valera

I do not know if I am quite in order in adverting to this point but it strikes me that it is one we should consider. This Bill was referred to a committee and a number of these points were dealt with in considerable detail. I am in a certain amount of difficulty about how far one should go on the Report Stage of this Bill. There is the possibility that the Report Stage can develop into simply a Committee Stage of the Bill. If that happens there seems to me to be no justification for having had this prior committee to determine it. I would like to have some idea as to what are the limits to which I am constrained in talking to this Bill and how far one can go on these amendments.

Deputies are entitled to express their opinions and indicate their attitude towards the amendment as far as they desire.

Major de Valera

In effect, we have the Bill recommitted again.

Oh, no. The number of times a Deputy may speak is limited to one. I will not say that the Chair will rule rigidly on that, but with that exception the Deputies are perfectly free to discuss the amendment so long as it is relevant.

Major de Valera

I have a great deal of sympathy with regard to this amendment. The more one sees of modern trends the more one is inclined to have sympathy with Deputy Cowan's general approach to this. It is inevitable, under the conditions of modern organisation, I am afraid, that more and more discretion and more and more unfettered power tends to go into the hands of the executive. So for that very reason it is more than ever necessary that the House should be jealous of its ultimate prerogative to control the law in conjunction with the other House of the Oireachtas.

While admitting all that, one can see that there will be cases—I believe there always have been cases—where it will be necessary to postpone the coming into operation of legislation and where some provision will have to be made, some way or another, to effect that. I have not looked up the precedents but I have a vague recollection at the back of my mind of having met them frequently. I could, I think, mention statutes in the local government code and even certain provisions in the landlord and tenant codes and in other codes where the Act was not to come into operation until a subsequent date. The date was sometimes specified but other times it was left flexible.

In this particular case it is perfectly obvious that the date upon which an Act of this nature should come into operation is a matter for consideration. First, there are certain preliminary steps necessary for the implementation of such an Act that cannot actually be taken no matter how they are planned until one knows for certain that they are needed. To make these changes prematurely would involve a great deal of administrative inconvenience and, perhaps, expense. Therefore, it seems reasonable enough to allow that the coming into operation of the Act should be postponed to some date after the date upon which the enactment of the Act is completed by the passage through both Houses of the Oireachtas and the necessary assent of the President. I would certainly go that far.

The question is what is the way to do it after that. There are several possible ways of doing it. One is to bring it back for the passing of a motion in the House or something of that nature. The other is to do what the Minister proposes to do in the Bill. The third possibility that I can see is to fix a date. There is very little difference between the alternative I suggest, namely, bringing it back to the House in a formal way for a resolution or bringing it back to both Houses, which might involve some delay, and the method that the Minister should do it by order. The question of deciding the time for bringing in the Order and so forth will rest on the Minister while the House has some control over Ministerial Orders which are delegated legislation. So that there is not an awful lot to choose between what one might call on-thesurface more correct procedure and the more direct procedure adopted by the Minister.

It remains to fix a date. I can see a great deal of difficulty in the fixed date. It will be either too soon or too late, one or the other is the inevitable result of fixing dates in a case like that. Perhaps Deputy Cowan's point might be met by something like this: "This Act shall come into operation on such date as may be fixed therefor by Order of the Minister for Defence not later than one year after the passing of this Act." That might possibly meet Deputy Cowan's difficulty in this matter. Quite frankly, I do not think this is by any means one of the most arguable or objectionable provisions in this Act.

I think the nibbling to which Deputy Cowan referred began a considerable time before the suggestion contained in this Bill was introduced. If the Deputy did a little research—he is pretty expert at that—I think he would find that there were quite a number of Bills which did not come into operation until a particular date fixed by the Minister and that, of course, depended on the circumstances which confronted the Minister. The circumstances which confront me in this case are such that I find this provision necessary. My predecessor, who was responsible for and actually introduced this Bill himself, was similarly convinced and I can only reiterate what I said in Special Committee.

When Section I was being debated in Committee, I gave two reasons why the operative date of the Act will have to be deferred for some time. The first was that the Army will have to be given a period to acquaint itself with the terms of the Act before it is brought into operation. As I said, there will be absolute chaos if this is not done, and I think nobody will dispute that. My second point was that many new regulations will have to be made. We have at present a considerable body of regulations and Orders of various kinds. Many of these are capable of being maintained in existence under this new Bill, and they will be as far as possible. Others are so tied up with the old Acts that it would only lead to confusion if they were retained in their present form when the old Acts disappear. These regulations are actually being re-written at the moment, but they cannot be put into final form until we know what the final form of the Bill will be. Then, like the Act itself, they will have to be circulated some time before they come into force, so that the Army can become acquainted with them. They can be made and promulgated in advance of the operative date of the Act under Section 10 of the Interpretation Act, 1937.

Therefore, as I said in Committee, I envisage that the Act cannot be brought into operation for at least six months after it is passed. The main reason for that is that all the administrative officers in the Army will need to acquaint themselves with the terms of the Act. It must be agreed that while the Act is, as Deputy Cowan has said, a simple Act, it is an Act, nevertheless, to enforce a considerable number of rules and regulations which will be made under it. Therefore, it is highly desirable to have this period. I am suggesting a period of six months. It may, perhaps, be longer or it may be less than that, because actually at the moment a considerable number of these regulations have been prepared as far as it is possible to prepare them and as this Bill progresses that type of work will continue. But the final form in which these regulations will appear cannot in any circumstances be decided upon until such time as the Bill has become an Act. So far as I can see, there are no grounds for the fears which Deputy Cowan appears to have in mind.

I take it I am concluding?

I am sorry that a number of Deputies who are interested in army matters have not found it convenient to be here this morning.

On a point of order. I would have spoken——

Deputy McQuillan can intervene if Deputy Cowan gives way.

I have no objection.

Does Deputy McQuillan wish to speak now?

Deputy Cowan suggested that other Deputies were not interested in this.

I did not. I knew that Deputy McQuillan was here. I said that I regretted that other Deputies had not found it convenient to be here this morning. In the Committee Stage of the Bill Deputy McQuillan gave, as the records show, a great lot of time to the Bill, and I am sure he will give his considered views on quite a number of the sections which have to be discussed. I have approached this problem, first and foremost, as a matter of what I consider to be an important principle in relation to parliamentary procedure. It did not matter by whom this Bill was introduced or any similar Bill; I would object to such a provision. That is on the matter of principle. Perhaps some time somebody will consider the question of principle in relation to matters such as this and in relation to what I term nibbling at the Constitutional procedure and nibbling unnecessarily.

The Minister said that this Bill was prepared by his predecessor, at least substantially, and that this particular provision was in it and was, in fact, introduced by his predecessor. That does not give it any extra validity. The Minister and Deputy de Valera put forward a practical proposition. The Minister says that we must give the Army a chance of studying the Bill and a chance of preparing the regulations so that the new regulations will come into effect on the operative date or immediately thereafter. I think the Minister will find that in practice that will not and cannot happen. No regulations can be made under the Act until it comes into operation. Between the date on which the President signs it and the date on which the Minister decides to bring it in, no regulation can be made under it by anybody. It can be drafted, but the Minister could not sign the regulation or the Minister for Finance could not sign the regulation under that Act until it comes into operation on the operative date.

The Bill, as I say, provides a transitory provision whereby every regulation at present in force carries over and continues in force until new regulations are enacted under the Bill. Supposing all the regulations that are to come into operation under this Bill were all nicely prepared and ready to be released like a flood on the officers and soldiers of the Army on the date the Act came into operation or a couple of days afterwards, they would never flounder out of the weight of paper which would descend on them. That cannot be done, it is not sensible. Whether we let the Minister think over this Bill for three months or six months, it is only after he brings it into operation by an Order that, month by month, perhaps three months by three months, new regulations will be issued and it will, perhaps, be a period of three, four or five years before all the regulations that can be made under the Act are made—perhaps longer.

Obviously what the Minister will do if any gap has to be filled is, he will issue something like what is in the Act itself—that all regulations, unless certain specific ones, that are to be eliminated or left out will continue in full force and effect. I know a case has been made on behalf of that particular sub-section. It is not a strong case and I do not know at what date the Minister may decide to bring in the Act, but he will have the same difficulty the day he decides to bring it in as he would have if it became law in accordance with the constitutional provisions on the day the President signs it.

I say there is no reason advanced by the Minister that justifies a departure in this instance from what is the correct constitutional procedure. As I said at the beginning, I am not aware of any precedent for a straightforward simple Bill like this to have a clause such as that in it. I have been told if I carry out a research I will find it. Perhaps I will, but I cannot think of any precedent for it at the moment.

I do agree that in regard to landlord and tenant, where there are many different matters dealt with in a Bill, certain sections or provisions of that legislation take effect on a particular date or under certain machinery; and certainly in regard to some of the very big Bills that were introduced by the Minister for Industry and Commerce where certain sections of the Bill were left to come into operation sometime subsequent to other sections, that is perfectly all right, but I object on principle, as I say, to this nibbling. All I can do as an ordinary Deputy is object to it and draw attention to it. If the House thinks it is of no importance that is a matter that the House may, perhaps, have to deal with at some time in the future when the nibbling has become bites, large bites.

Amendment put and declared lost.

I move amendment No. 2—

In page 14, Section 2 (1), between lines eight and nine to insert the following:—

The expression "civil offence" has the meaning assigned to it by Section 168.

The purpose of the amendment is to define the expression "civil offence" for the purposes of Section 168 which relates to the trial of civil offences by courts martial. The definition is considered necessary by the legal advisers.

Amendment agreed to.

I move amendment No. 3:—

"In page 15, Section No. 2 (1) between lines 49 and 50, to insert the following:—

The word "property" includes money.

The purpose of this amendment is to define the word "property" for the purposes of the revised Sections Nos. 154, 155 and 156 which it is proposed to insert in lieu of the existing ones.

Major de Valera

There is only one point I wish to raise in regard to that. There are certain adaptations of existing definitions in other Acts which presumably we will agree to here. Has the Minister examined this question as to whether this particular definition of the word "property" in any way raises possible ambiguity in the application of some of these later sections. This is simply a definition of the word "property" but when you turn to the provisions dealing with the actual cases where property comes in—and it particularly applies, I should imagine, where a question of larceny comes in— I take it that the Minister is satisfied all these things are consistent. I myself have not examined whether they are or not and I presume they are, but if the point has not been specifically examined it will be as well to have it done.

I must of course presume it has been carefully examined because it has been in the hands of our legal authorities for some time and this is the only addition that was regarded as being necessary.

Amendment agreed to.

I move amendment No. 4:—

In page 16, Section 2 (1), line 20, to substitute "books or property" for "or books".

The purpose of the amendment is to extend the definition of the word "service" in relation to service property. This amendment also arises from the proposed new sections I have mentioned.

Amendment agreed to.

I move amendment No. 5:—

In page 16, Section 2 (1), between lines 30 and 31, to insert the following:—

The word "steal" has the same meaning as it has for the purpose of the Larceny Act, 1916, and cognate words shall be construed accordingly.

The purpose of the amendment is to define the word "steal" as having the same meaning as for the purposes of the Larceny Act, 1916. This definition arises from the proposed new Sections 154 and 155 and is in accordance with an undertaking which I gave the Special Committee.

Amendment agreed to.

I move amendment No. 6:—

In page 16, Section 2 (1), to delete lines 33 to 37 and substitute the following:—

The expression "the term of his original enlistment"—

(a) in relation to a man of the permanent Defence Force who is enlisted under Section 53, has, subject to paragraph (d) of sub-section (1) of Section 63, the meaning assigned to it by section 53;

(b) in relation to a reservist who, having been enlisted in the permanent Defence Force under Section 53, has been transferred to the Reserve Defence Force under Section 70, has, subject to paragraph (c) of sub-section (2) of Section 63, a meaning assigned to it by Section 53;

(c) in relation to a reservist who is enlisted under Section 55, has, subject to sub-section (3) of Section 66, the meaning assigned to it by Section 55.

The purpose of the amendment is to include a revised definition of the expression "term of original enlistment" in connection with subsequent amendment which I am proposing for Section 63 and other sections.

Amendment agreed to.
Amendment No. 7 not moved.

I move amendment No. 8:—

In page 16 to delete Section 4 (1), lines 47 to 49, and substitute:—

(1) The Government, a motion specifically authorising them to do so having first been passed by Dáil Éireann, may by Order under this sub-section declare that a state of emergency exists for the period mentioned in the motion authorising the declaration.

This amendment provides an amendment of Section 4 and is in my view a very important amendment. Under Section 4 the Government may, when they consider the circumstances are of such a nature to warrant their doing so, by Order under this sub-section, declare that a state of emergency exists. I propose to delete that sub-section and to provide:—

"The Government, a motion specifically authorising them to do so having first been passed by Dáil Éireann, may, by Order, under this sub-section declare that a state of emergency exists for the period mentioned in the motion authorising a declaration."

The Constitution makes provision for emergency situations and this section. as provided under the Bill, goes further than the constitutional powers of the Government in regard to an emergency. The constitutional article is Article 28, which provides that each House of the Oireachtas, in the event of an armed conflict in which we are not engaged shall declare or resolve that—

"arising out of such armed conflict a national emergency exists affecting the vital interests of the State and ‘time of war or armed rebellion' includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict or armed rebellion has ceased to exist."

That is the constitutional provision in the case of an invasion. The Constitution provides the Government shall take such steps as may be necessary, and in the event of an armed conflict in which we are not engaged each House of the Oireachtas may resolve that a state of emergency exists and, consequently, the Government are thus armed with very extensive powers.

This section of the Defence Bill goes much further than the constitutional provision and gives the Government power, whenever they consider the circumstances are of such a nature as to warrant them in doing so, by Order, to declare that a state of emergency exists. There is, of course, the saving provision, if one may so term it, in the section subsequently, that every Order made under the section shall as soon as may be after it is made be laid before each House of the Oireachtas and be published inIris Oifigiúil. I think that democratic States, States existing under a democratic form of Government, should be very slow to invest the Government with power to declare a state of emergency, because when they do so declare a state of emergency, they become possessed legally of very extensive powers affecting the individual citizen.

If one studies the history of democratic countries which have become dictator countries, one sees how easily, when you have a powerful Minister in a Government who can influence the others, step by step, from a declaration of emergency, arrest of members of Parliament and deposition of lawful rulers that nation may be deprived of its democratic form of government. It will be said to me that there is no danger in this country, that we are unlikely to have anybody in the country who would have ambitions to become a dictator. That may be so, but I think it is wise not to make the path of such a person, if there ever should be such a person, too easy, and this is a section which concerns every citizen so vitally that it ought not be passed in its present form.

We can visualise the type of emergency the Constitution deals with. There is, first, the case of actual invasion in which the Government may do anything they think necessary, and even if there were no such constitutional provisions, the old principle of the safety of the people being the supreme law would apply. In the second case, each House of the Oireachtas may consider it reasonable, in the event of armed conflict near us, that the Government should be invested with these extensive powers, and they are very extensive, because the Constitution specifically provides that the Government shall be invested with these powers during a state of emergency.

What other situation could arise? If there is a state of armed rebellion in the State, the Government are invested with powers to deal with it. What other conceivable situation could arise whereby the Government would want to act before they had got the authority of Dáil Eireann so to act? It is not very difficult to call this House together. It can be called together by radio and it can be called together by telephone, and there is a precedent for the calling together of this House in urgent circumstances in the past when Deputies were assembled by means of telegram. I can visualise no situation in which the Government, as a Government would require powers to act beyond the powers given in the Constitution without the authority of this House. I think it would be a grave surrender of the powers of the House to give the Government the power to declare an emergency and, having done so, simply to publish it inIris Oifigiúil and then lay the Order on the table of each House.

This is a grave matter, a matter which, in my view, the House should consider very seriously. When a state of emergency is declared, this House surrenders certain of its powers and hands them over to the Government for the time being. They may be a good Government or a bad Government and it is generally the bad Government which will want to get this type of power and not the good Government; but, if we pass this section as it stands, we are giving a bad Government power to declare a state of emergency and invest themselves thereby with all the powers which a state of emergency means to them. The Constitution, which is the fundamental law of the country, which was very seriously considered and which was passed into law by the people, provides certain powers for the Government, but even in the event of an armed conflict adjoining us, the Constitution provides that a state of emergency cannot be declared unless the Dáil and Seanad by resolution decide that a state of emergency exists.

By the amendment which I propose. I want to provide that the Government may declare a state of national emergency, but only after a motion specifically authorising them to do so has first been passed by Dáil Éireann. That is a constitutional protection and a necessary protection for the citizen. If we pass this section in the terms in which it is, without providing an amendment somewhat on the lines of my amendment, we are surrendering to a Government in the future vital powers, and we may be making it very easy for a bad Government—we cannot always have a guarantee of good Governments—to deprive the people of all the democratic rights guaranteed to them by the Constitution.

There is a lot to be said for this amendment, especially when we consider what a state of emergency might have been like 30 or 40 years ago. I think that at present, however, it would not be practicable for a Government to call the Dáil and Seanad together in order to give the Government power to declare a state of emergency. I know well that Deputy Cowan is anxious to safeguard the rights of this House and to see that the Constitution is properly interpreted, but it should also be one of the most important functions of the House to safeguard and protect, so far as possible, the lives of our people.

In peace times, having regard to the fact that the speed of sound has been exceeded, it is essential that a Government should be in a position to act at a moment's notice. It may be necessary for a Government to declare a state of emergency overnight. In modern warfare no warning is given. Deputy Cowan's argument would have applied when horses were used by infantry instead of tanks and when the only type of invasion envisaged would be swallows at a certain time of the year.

I have great sympathy with Deputy Cowan in his aim to protect constitutional Government. I realise that it is giving great powers to whatever Government is in office. If we weigh in the balance, on the one hand the necessity to give the Government a right to protect the people and on the other hand the possibility of there being a bad Government, we will have to take the chance and give the powers to the Government, whether it be good or bad at the time, to safeguard the country.

In Section 4 as it stands, power is given to the Government to declare a state of emergency and sub-section (4) states that every order made under this section shall as soon as may be after it is made be laid before each House of the Oireachtas and be published.

Having given the power to the Government to declare a state of emergency, if this House meets afterwards, there is no reason why an order that has been made cannot be revoked. A day may be too long for the Government to wait in order to get power to declare an emergency. If the section is left as it is, the Government has power to declare a state of emergency immediately if it considers that desirable and the Dáil has power to revoke that order at a later stage.

There is a safeguard there for the constitutional Government and at the same time full power is given to the Government to take every possible step to protect the welfare of the citizens.

Major de Valera

Perhaps it would be as well to see on what basic principle we have to approach this amendment. It seems to me to be this—we more or less agreed on this in Committee— that where it is a question of peace-time and the maintenance of the Defence Forces in peace, every effort should be made to the point of strain to maintain the civil law and the civil position and that either special penalties or special privileges or special provisions of any nature should be avoided as far as possible so that the one law will run throughout the whole land whether in respect of the Defence Forces or not. That is during peace-time. In short, the principle is to try to maintain the sovereignty, if you like, of the civil power to the greatest extent possible. There is a whole history behind that.

On the other hand, when it comes actually to a state of emergency or a state of war, we have to realise that war is a savage, bloody, ruthless business, with no holds barred, a ruthless physical invasion on rights and everything else and, in that animal situation, the demands for self-preservation both for the individual and the community immediately become paramount.

Broadly speaking, in so far as any such general statements can be construed literally or accurately at all, these are the general principles upon which a Bill such as this must be faced. I realise that such general enunciations, by their generality, have defects but, putting it as I want to put it, in the broadest way, such was the policy in approaching the provisions of this Bill.

Where we are looking at it from the point of view of peace-time, the view which has twice been expressed by Deputy Cowan to-day in regard to other amendments is a very important one—and one, in fact, that cannot be lost sight of at any stage. On the other hand, the view expressed by Deputy McQuillan which refers to the opposite of what is in Deputy Cowan's view at the moment, also has its value in its own perspective.

Let us see what this section and this Bill has to meet. It has to meet the kind of in-between ground. As Deputy McQuillan says, you have to visualise that dangerous borderland between allout emergency, or war and peace-time conditions, where the Executive must be free to take the necessary steps in what is actually emergency in the colloquial sense of the word. Then you have to consider the point made by Deputy Cowan: in doing that you must be careful that you are not going to give the excuse or insert the thin end of the wedge that will enable somebody to invade completely on the civil authority and on the situation as it should be in time of peace.

The practical problem is how you are going to achieve the balance between these conflicting requirements and I think the best way to do it is to try to visualise what is the situation.

In normal peace-time there is no case for giving power to a Government to declare an emergency. If we are going on normally, without any immediate threat of physical force, I would completely subscribe to the view that such declarations should be confined to normal enactments of this Oireachtas. However, there may be a very severe threat. There may, for instance, be a situation such as existed in August, 1939. There may be a situation where the security of the State is actually threatened by a parade of Fascist Blueshirts in O'Connell Street as happened some years ago—I forget the actual year.

That was not the first threat.

What are we discussing?

Major de Valera

The Defence Bill and the question of emergency.

We are discussing the Defence Bill, 1952.

Major de Valera

Let us get back to the point I was making.

I think the Blueshirts were the best servants this State ever had.

That question does not arise under this Bill.

I took the opportunity of paying them a tribute when their name was mentioned. Thanks be to God for the Blueshirts. They saved the life of this country.

Deputy de Valera on the Bill.

Major de Valera

It is rather interesting to contrast Deputy Dillon's present statement with his attitude towards the Fascists during the war.

The Deputy is being very helpful.

Major de Valera

The Deputy is being provoked.

Deputy de Valera got out at the wrong side of the bed this morning.

Deputy de Valera made an unfortunate observation.

Major de Valera

The Deputy is choosing to pick it up.

Let us get back to the Bill.

Major de Valera

There may be either an internal threat or an external threat not amounting to an all out national emergency. A difficult problem arises. The Government in office —whatever Government it may be— will not declare a general emergency or would not be justified in declaring a general emergency which would affect not only the Defence Forces as a whole but the entire community. At the same time, the Government should take certain precautions such, for instance, as the Gárdai would take in local cases if they knew there would be a riot in some district or other. In other words, there is no justification for a general emergency, but there is justification for alerting the Defence Forces. One will agree that in such a situation it is right and proper the country should be safeguarded but under Article 28 of the Constitution, there cannot be a general emergency unless war is declared with the assent of the Oireachtas or unless there is actual invasion. A general emergency can only then be declared through the proper action of the Oireachtas as provided for in the article we are discussing. On the other hand, there may be innumerable alarms before such a state of emergency arises requiring that each element of the State's forces be ready to deal with an emergency if it should arise. That is all the more necessary in modern times as Deputy McQuillan has pointed out. That is what this Bill attempts to do. I think the justification for this section is that it should be possible and allowable for the Minister for Defence to alert the Defence Forces. In fact, we might go so far as to say that he should be able to alert his Reserves in anticipation of a general emergency, either as a precautionary measure or as a measure to deal with something that has happened before the routine of the more general procedure could be put into effect. I feel that that is what is intended. In my opinion, anybody looking at the matter reasonably would agree that some such provisions should be necessary.

I have a feeling that some of the Deputies who objected to section 4 in Committee felt that it is going beyond the situation. Section 4, sub-section (1) reads as follows:—

"The Government may, whenever they consider the circumstances are of such a nature as to warrant their so doing, by Order under this sub-section declare that a state of emergency exists."

Such a state of emergency can only be a state of emergency for the purposes of this Act. In any event, Article 28 of the Constitution is paramount and, no matter what we put into any Act, it cannot have any force or effect beyond that permitted by this Article of the Constitution. After that, as a general principle of interpretation, the provisions for a state of emergency contained in this Act will not extend further than the scope of the Act. Generally they confer no greater or wider emergency powers on the Executive than those which it is intended to confer in relation to the Defence Forces. They cannot imply general emergency powers for the community such as the application of martial law, mobilisation of industry or food production, wartime restrictions on trade or any of these national emergency measures which are regulated under Article 28 of the Constitution and derivative legislation.

I agree there is danger in another sense. Lawyers may later use this type of definition for argument in the courts in regard to the interpretation of similar provisions in cognate types of legislation or even in unrelated legislation. The courts may also look to such definitions, if relevant, in questions of interpretation, even where the subject matter differs radically from that of this Bill. There may be a danger here, but having regard to the force of Deputy McQuillan's point, this danger cannot weigh against the need for adequate provision for emergencies.

Broadly speaking, this state of emergency simply means a state of emergency for this Act or for people who are subject to it. That justifies me in saying that this section simply provides for putting the Defence Forces into a state of emergency and that it has no broad powers of the kind which Deputy Cowan gives the impression he is visualising. I admit that there is some force in the argument that Section 37 does extend the scope. From that point of view we must say that the provisions of the Bill do encroach on the civilian population—persons not subject to military law. The provisions in regard to billeting, for instance, may have the effect, and probably in one case at least will have the effect, if a state of emergency is declared under this section, of encroaching on the rights of those who are not subject either actually or potentially to military law. There must, however, only be encroachment which is necessary and justifiable in the type of emergency that may have to be faced.

I would like to make another small point. It is essential to realise in dealing with this section that we are dealing with a state of emergency for the purpose of this Bill—that it relates broadly, with relatively minor exceptions, to the Defence Forces and to people who are either actually or potentially subject to military law, that there is necessity for enabling the Government to prepare for a broader and more general emergency by alerting the forces and powers at its own disposal.

I move the adjournment of the debate.

Before the debate is adjourned, I should like to indicate to the Minister that I am thinking along the lines that this section is unconstitutional. I think it is only right that I should mention that now so that the Minister will have an opportunity of considering it.

Debate adjourned.