Defence Bill, 1951—Report Stage (Resumed).

Debate resumed on 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.—(Deputy Peadar Cowan.)

Major de Valera

This is the question of "emergency," and my recollection is that Deputy Cowan was making a constitutional point in this regard. The distinction which I sought to make on the last occasion—and, if my recollection is right, I went into it in some detail—is that in the Constitution there is general provision for an emergency and the declaration of a state of emergency, under Article 28, and legislation here cannot go beyond the field defined by Article 28. That refers to a national emergency embracing the whole national fabric. What we have to deal with in this section and in this Bill is a more localised type of emergency. If one could find a suitable word to make the distinction clear, it might be desirable to use it in this Bill. We are dealing here with a localised emergency affecting the armed forces only. The circumstances of that emergency would have relation to an emergency of a wider nature, but the action to be taken in the emergency referred to in this section would refer only to peoplewho come within the scope of this Bill.

Therefore, I think the point Deputy Cowan is seeking to make in regard to the Constitution is not well founded. The provision in the section can go no further than the armed forces and simply enables an alerting of the forces. When all is said and done, what is involved is that the Government may declare that an emergency exists, within the meaning of this Bill and for the purposes of this Bill. Following on that, they are empowered under the Bill to take certain specific steps regarding people who come within the law as defined by the Bill. That may mean calling up a reserve or taking certain other action in preparing the armed forces. That is not in any sense putting the nation as a whole into a state of emergency, which is what is envisaged by Article 28 of the Constitution.

It is obviously important that a Government should have power to act immediately. Without going over the whole ground again, but looking quickly over the report of what I said on the last occasion here, I may say it is obviously necessary that the Government should be in a position to act rapidly, whether in aid of the civil power or in case of a national emergency, and put its own forces in a state of preparation to meet any such emergency as may arise. That is quite clear, from the military point of view, the overall national defence point of view.

Let us hark back, say, to the experience of 1939—an experience that may well confront us again some time in the future—where the international situation is getting more and more threatening; the Government with its responsibility feels that the time has come to make certain preparations; the situation is not clear enough yet to warrant an all-out emergency over the whole country but some preparations must be made. It is to meet that type of case that this section was primarily drafted.

Let us go back again a little more specifically to 1939. In the early months of 1939 it became obvious—in fact, from about October, 1938—that there was a real threat of war in the offing. In theearly months of 1939 the Government of the day did not declare an emergency or anything like it or take any emergency steps under the legislation empowering them at that time. They did make certain preparations, there was a reorganisation of the reserve and efforts were accelerated and intensified to get equipment and to reorganise the Defence Forces. The Department of Industry and Commerce and the Department of Agriculture acted also in regard to essential supplies, to some extent. All that was mere normal precaution. But that was not enough. From about 1st July onwards, the situation became really threatening and then in September war actually broke out in Europe. That war broke out in a localised kind of way and would merely bring about an emergency of the type contemplated in this section. It was not a national emergency in the sense that an immediate threat lay, with necessity for mobilising the whole resources of the State to meet it. The war as it broke out between Germany and Poland, with the consequent entry of the other Powers that came in, was still remote enough to leave it as a restricted emergency. The result was that the Government then used powers to mobilise the Reserve and take other precautionary steps. That was a good deal short of the all-out type of national emergency that was considered in the Constitution and invoked very shortly afterwards. I am referring to the steps taken just before the declaration of the emergency in the full sense. It was obviously desirable that the Government should have power to do that. Later, it had to go the whole hog with regard to declaring an emergency. Some provision for that kind of situation should be provided, from a general defence point of view.

There is, then, the other aspect which I mentioned previously and which rather irritated Deputy MacEoin when I referred to it—the possibility of internal disturbance. The Government, no matter what Government it is, is charged with the responsibility of maintaining order within the State and maintaining the constitutional framework of the State. If it should happen in this country, as has happened inmany other countries, that there should be such an organised threat to the institutions of the State or to the internal order of the State that the ordinary police authorities were not likely to deal with it, and there was in fact something approaching an emergency, the Government should be in a position to act and to act quickly.

I gave an example and the spirit in which I gave it was somewhat misinterpreted. It was an example, however, but looking at it completely objectively—and that is the best way— let us take a hypothetical Government in the future, a Government in which none of us—Deputy MacEoin, Deputy Collins or myself—is interested. It is obviously desirable that that Government should have that power. I think there is a slight misappreciation of the position due to the use of the word "emergency." This in no way conflicts with the provisions of the Constitution and applies merely for the purposes of this Act, and, from the point of view of national defence as against an external aggressor, this power is needed on the ground that the Government should be in a position to act quickly, especially in modern times, should be in a position to make adequate preparations and should have, so to speak, a half-way house in these uncertain situations which can arise preparatory to actual hostilities of being able to declare or arrange for a restrictive emergency. These are two considerations which seem to be dictated by common sense and for these reasons they should have the power.

Thirdly, from the point of view of internal order, it would seem an extravagant and unnecessary upset of our national life that if such an internal threat as I have tried to indicate broadly were to arise, we should have to put the whole nation straight away in a state of siege to deal with it. The approach should, and with any normal Government, would be—as it was the approach of the Government in the case to which I referred previously—to try to keep life going normally, to maintain a "business as usual" attitude, while at the same time taking the necessary steps to deal with that threat of disorder. On thesethree grounds—I differ from Deputy Cowan in these instances, although we are in agreement on a large number of other things—I think the section should stand.

I do not think Deputy de Valera has made any case in answer to the amendment. Take the first basis of argument he has tried to establish. He says that in the event of a quickening of the tempo of threat, it might be necessary for the Army to take certain steps to ensure that the machinery for the call up of various reservists would be geared up for action. Surely if it is only a quickening of the tempo, there is no reason why the Government should not come to Parliament in the ordinary way and get parliamentary authority for the action they propose to take. I should have thought that if the Deputy were serious in his argument, the only basis on which any justification might be put forward for such a section would be expediency and there the first line of his argument must fall completely. There are no circumstances that I could conceive in which it would be difficult for a reasonable Government, coming to Parliament, to get the Order envisaged in the amendment.

If we allow the section to go unchallenged—and I for my part will not allow it to go unchallenged—we are writing into this measure a power which, on the basis of the existence of a reasonable Government, can be argued in a way that might seem to justify it; but it is our duty as a Parliament to visualise the direct opposite and to consider what power we would be vesting in an unscrupulous Government. Deputy de Valera speaks airily about a hypothetical Government. If he wants to take a hypothetical Government, let him take a Government which might find itself in the position of having a parliamentary majority and which, when pressure was being brought to bear on it in respect of the legitimate grievances of a body of the public, might use the section for its own purposes. Take the situation which could arise in which, through something in the nature of acoup d'état, a particular Government was established for a period. Here we are giving legal authority for the exercise by that Government of powers which none of us would like to give.

We have to get these things into proper perspective. There would be nobody more anxious than I to see that the Army, in the event of an increasing threat or in conditions of exigency due to a tremendous change in equipment or general war technique, would have the right to call up a limited type of personnel, limited numbers of the Reserve for purposes of national security, or for the purpose of giving the basic training to ensure ultimate national security.

When one takes this section as it stands one cannot see in it any of the limitations to which Deputy de Valera referred. We are in the situation now that this section can be used but not merely in the limited sphere suggested by Deputy de Valera. Say that the Government declares a state of emergency and issues a certain warning. The section could then be used in a way in which it cannot be used now. Take it that we have some kind of internal disturbance or even go back to the particular type of internal emergency to which the Deputy himself referred in his original contribution to this debate. Could it be of such nature that the Government could not have resort to the normal machinery of the Houses of Parliament to take such action as they might in the circumstances think proper? On the occasion that this particular difficulty arose before, Deputy de Valera cannot contend that it had arisen overnight under circumstances in which the Government were not able to come to Parliament for power to deal with it. What we are unconsciously giving away in this section is the sovereignty of our parliamentary institutions. The Constitution has been designed and framed to ensure that where a state of national emergency exists, the declaration and the ultimate establishment of that state of emergency is vested in the Houses of Parliament.

In this case if a Government, less worthy than Governments of the pasthave been, a Government with any tendency to unscrupulousness, were in power they could use this section of the Bill, not as suggested by Deputy de Valera for the limited purpose of calling up reserves but they could call the Army to assist the police in a civil disturbance and by virtue of the authority of this Bill relieve the Army from the obligation that at present rests upon it, where a chief superintendent of the police may, as he is entitled to, call for the assistance of the Army which is then amenable and answerable for such powers as it exercises to the normal civil authorities. Any officer or personnel of the Army executing a certain mission of restraint can only do so within the concept of the civil code whereas, under this section, a situation could arise where without any previous reference to Parliament the authority taken under this section could convert that situation virtually to one of military law. There is no limitation in this section to prevent that being done.

I think the Minister would be well advised to view the situation in its reality. There is no member of this House who will deny the Minister for Defence or the Army authorities the right to be able to deal with what they consider a matter of crisis within the armed forces. I do not think any Deputy would deny the Army the right to advise the Minister and to tell him that it was in the interests of security and of the general defence position that they should call up a certain type of personnel, but that is not what is sought in this section. If this section were limited to dealing with that type of situation there would be no controversy with regard to it, but I contend positively that, in the broadness of the section, we are striking fundamentally at the root of the civil liberties of our people. I am not going to suggest, nor should I like the House to think that I am suggesting, that in the hands of the Government we have, or in the hands of a Government such as we have known in the past, improper use is likely to be made of this section but we must be fully alive to the fact that the section as it stands gives powers toan unscrupulous Government which none of us, no matter how immature we may be in our concept of political philosophy, would grant. It is not a situation that can be treated lightly. I think that Deputy Cowan may be completely right in questioning whether it is constitutional or not. It certainly does tend to cut completely across the Constitution. We find ourselves in the dilemma that if the case made by Deputy de Valera is that in three conceivable circumstances, there might be necessity for this particular type of power, why is there not a limitation in this section and why is there anything objectionable in the amendment proposed by Deputy Cowan?

Major de Valera

Would the Deputy just give me an opportunity to answer these questions now?

The Deputy will have plenty opportunity later on.

Major de Valera

It might help if I were to do so now. In one approach, I appreciate the point the Deputy is making.

I am putting forward an argument based purely on the inherent dangers of the section. I appreciate that the Minister will probably say that this section was in the Bill that was given to him, but the fact that it might have been conceived by his predecessors in office does not make it anything more acceptable to me. I should like to know, and I am suspicious, where this section came from. This is something which is new in the concept of Defence Bills.

Major de Valera

Is it not true that, no matter what you put in the Bill, it cannot have force and effect outside the framework of the Constitution?

Major de Valera

It is true that the Constitution is the overriding instrument.

That sounds well, that the Constitution is the overriding authority, but whether theConstitution is overriding or not, you might, by powers given in this Bill, negate a Constitution which is meant to be overriding.

Major de Valera

The provisions in the Constitution are paramount.

That sounds grand in the theory of law.

Major de Valera

We are dealing with the theory of law at the moment.

If, in fact, an unscrupulous Government happens to be in power and accepts this particular section, I am suggesting that, by virtue of this section, it can negative any effect the Constitution might have. That is the basis of my argument.

Major de Valera

The Constitution is paramount.

The situation would not even have the same justification for legislation. It would then be a question of revolt as distinct from an act with a semblance of legal authority. My research leads me to believe that it is from some Canadian Act that this particular concept of the Emergency Act has been brought. Could the Minister justify to this House circumstances under which he was not able to summon the Dáil to get the authority that he seeks? Even assuming that he could make a case that it was not possible to summon the Dáil before he sought the power, at least the Government would appreciate the necessity for limitation. If the case could be made that he could not summon the Dáil there should be a provision made, within a certain date of the coming into operation of the warrant which he signs under this section, for the ratification and acceptance of that.

Major de Valera

Is not that exactly what the Minister proposes to do?

Major de Valera

Will the Deputy look at amendment No. 9? That is just the whole point. We are all withyou and Deputy Cowan in regard to appreciating the danger. The essential difference between us now is that the Deputy wants to have the Dáil determine the matter before the Government can move. We say that that is just not quick enough and it would not meet the situation. Would the Deputy look at the section as it stands in the Bill in conjunction with amendment No. 9 which the Minister is moving and which states:—

"If, at the time an Order is made under this section, either House of the Oireachtas stands adjourned, that House shall be summoned to meet as soon as conveniently may be."

If you take that proposed sub-section (5)—and I presume it will be put in with sub-section (4)—then the case is completely met.

I still do not think that meets the case at all. I can conceive in a hypothetical way that the emergency Deputy de Valera is trying to argue for could arise. It cannot arise in the circumstances as suggested by the Deputy himself of the quickening tempo of danger in the international situation, the situation of the Army wanting to alert itself or get the power to call up various categories and types of personnel. On the Deputy's own argument that could not call for this particular type of legislation.

There is nothing to prevent the Minister coming to the House and making the request. If that request were backed up, as it would be in the case of a responsible Minister, by an Army request there would be no difficulty about getting it.

Major de Valera

Has the Deputy considered amendment No. 9 in relation to sub-section (4)?

Major de Valera

Does not that meet the case completely?

No. I will make my own argument. I did not interfere with the Deputy.

Major de Valera

I do not want to interrupt the Deputy. I only want to be helpful.

An expression that the Dáil will meet as soon as is convenient is no guarantee, good, bad or indifferent, to anybody.

Major de Valera

Sub-section (5) states that the House shall be summoned to meet as soon as conveniently may be.

Yes, but who will be the arbitrator of what convenience means? It will be the very same Government who are going to operate the section.

Major de Valera

Perhaps the Deputy has a point there. Maybe it should be more definite.

If the Minister can make a case for this section he should ensure that only in respect of the type of situation where there is grave immediate need arising would there be any warrant issued under this section. I am anxious that only in that one type of case would he provide as suggested in Deputy Cowan's amendment and have resort to the Dáil to get the permission and that in the case where the situation had become impossible at least within 21 days' issue the warrant or Order under this section would come before the Dáil for ratification.

An unscrupulous Government—I think Deputy de Valera would concede this—would be the arbitrators of when it was convenient for the Dáil to meet and might conceivably postpone such a meeting for quite a considerable period and during that period they would have certain protection for acts which might have been carried out by virtue of the warrant putting the court in a situation that it was subject to martial law as distinct from civil law. Deputies will not argue that the section will not go as far as to allow control being switched from the normal civil law to the military authorities. If the section does not go that far we are arguing in a hypothetical way.

In fact, as the section is framed, the Minister can go that far. If the fracasof 1932 or the situation in regard to the milk stoppage had been allowed to spread into a more serious type of internal disruption we could conceive where it might be necessary for the civil authorities to get the assistance of the Army. In normal circumstances and under the present provision of the law a chief superintendent of the Garda Síochána in an area can request that aid and support from the military located within his area or from such military commander upon whom he can serve notice. In the main, I think that situation is provided for. The final arbitrator is the normal civilian law and any Army personnel carrying out their duties at the request of the chief superintendent of the Garda authorities is to that extent in such peril of the civilian law that he cannot go any further than reasonable prudence and reasonable interpretation of prudence would let him.

If the rule of martial law became dominant in the emergency situation, the responsibility would be on the Army authorities themselves who would also be the ultimate arbitrators. I say to the House, not in any spirit of contention but in a spirit of jealously safeguarding the rights and authorities and functions of Parliament itself, that we will have to view very seriously the full impact of this situation. I concede willingly to the Minister that if we had any assurance that persons of his responsibility and character would be the arbitrators of the use of this power, we might not have the fears that we must have when we realise that we cannot look into the future and envisage future Governments. Remember that you are in this position. Under this section a situation could arise where a Government could become divided against itself. Let us say that the stronger elements in that Government depose, as they can in a very rapid way, their objecting colleagues. They have here, under this particular section, wide powers on which they can act if they are unscrupulous, to hold up the normal operation of parliamentary democracy for an almost indefinite period. I feel that the object that the Minister wants to achieve can better be achieved in the national interest with the co-operation and helpof Parliament as distinct from the overriding of it.

I concede to Deputy Cowan that I feel in this particular instance that he is genuine in his desire, by nature of the amendment framed, to ensure that Parliament and the Government will try to act hand in hand when this type of situation arises. Therefore, it would be in the best interests of the Government itself, if of nobody else, in dealing with a national situation, to come and get the co-operation and help of Parliament that it requires to create what Deputy Major de Valera has described as either a localised or a semi-localised emergency within the State. If it is a question of what line of action the Army might like to take in a situation of gathering war clouds, I think the Minister will readily agree that there are very wide powers already vested in the Army authorities themselves by virtue of which they can get to a state of preparedness that certainly would not in any way be impeded by the Minister's coming to the House to ask for wider powers for them. If the Army are already in the position that they feel that they should have more personnel up for training or on stand-to or on the alert, they can proceed to get the mechanics of such an action into being and the Minister will have adequate time to come into this House and ask the House, in the light of the recommendation of the Army Council and in the light of the request from the Army, to grant them the wider powers or such powers as they need. There will never be any difficulty about that. If Parliament were in normal session or was meeting in circumstances such as those in which Parliament had to meet in 1938 and 1939 the position would be that they would urge these powers on the Minister as distinct from trying to withhold them.

Major de Valera

What about 1939?

I think that is why the argument is basically unsound. It is all right to say: "What about 1939?" now. We are fortunate in thiscountry that where this particular subject of defence and national defence is concerned we have made very considerable advances in our approach to the general problem since 1939. I cannot see any Parliament in this country, in a situation of impending serious national danger, not giving in an unstinted way the right to the Army to put in motion such machinery as it thinks necessary to put our trained military personnel in a position to be of the most valuable service possible in the national defence. I think, with all due respect to Deputy Major de Valera, that the day on which there would be obstruction in this House in such a national situation has gone. So far as that particular facet of argument is concerned, I say that no case is made.

I feel, with regard to this section, that I can see the Army point of view. An omnibus section such as this would ease their difficulties considerably. But it is the very omnibus nature of the section that compels me in a deliberative and non-contentions way to argue that it is most unwise to let the section go as it stands. I think the Minister could devise, and for that reason I urge him to devise, a method whereby this particular section, if it has to stand, would be drastically limited. I think that he would have to make a very strong case to this House before we would willingly give him any of the facilities which this section asks for. I want to hear what particular case the Minister can make for not coming to the House for authority for the warrant that he wants to issue under the section. If a situation arises—and let us concede that a situation could arise overnight—that would put the Minister in the position that he would need wide powers, is there any reason why an absolutely definite period of time cannot be fixed within which the warrant issued by him would have to be ratified by the Dáil? I cannot conceive a situation in which an overnight crisis would arise that would not already be covered by the powers which the Government have under the Constitution.

Suppose, for the sake of argument, such a situation did arise, I want the Minister to tell the House why it isnot possible instead of having the omnibus expression "when convenient" to lay down a specific time within which the Dáil would have to meet for the purpose of either confirming or annulling the warrant that he issued. This whole section, to my mind, whether it was conceived by my colleague when he was Minister or by the present Government, still allows a situation to develop whereby, in circumstances short of an emergency and not contemplated by the Constitution, we could, in fact, hand over the normal authority of the rule of civil law to the Army. I do not think any of us really want that. I myself, except for the affection which the Army Council may have for having wide powers —not using them but having them— cannot see any justification for this section as it stands. I believe that it could be considerably bettered not only to ensure the preservation in the best possible way of parliamentary democracy but also the best possible type of protection for the Army itself in the event of the Army coming into active participation in a national crisis under this section.

I was opposed to this section in Committee and I am opposed to it now on the basic principle that, I think, it is not necessary in the manner in which it is conceived because, in foreseeable circumstances, it could be an instrument that might negate the very principle of parliamentary democracy. I know that the Minister, in the exercise of his power under this Bill with his amendment in, might deem these words "as soon as is convenient" to be an implicit trust on him to summon the Dáil with all haste. I might be perfectly satisfied in my own mind that, in the event of a warrant having to be issued under this section and that if any member of this House, as I now know them, were to be the occupant of the Ministry of Defence, he might deem the expression "as soon as convenient" to be coercive on him to summon the Dáil immediately, but a situation could arise where the convenience might run into months and could conceivably run into a period much longer than months if an unscrupulous Government with the supportof the Army had to use this section for its own purposes.

I think we have to realise that there is involved in this section the basic principle of a clash between the sovereignty of Parliament and the powers that we might give to the Army in certain circumstances. As I have said before, and repeat deliberately, if the circumstances, as envisaged by Deputy Vivion de Valera, are the basis for argument for this case, then no argument exists. The first leg on which the Deputy stood was the leg of the increasing tempo of unrest, the increasing menace of danger that might involve the Army in the necessity of being, to use his own words, on the alert. Now, in those circumstances I cannot conceive that it would not be possible and practicable for Parliament to meet and discuss the situation as presented by the Minister for Defence.

The second circumstance envisaged by Deputy Vivion de Valera, and adverted to by him, was that of certain internal troubles. He made reference to the trouble that arose in 1932-33 when the Public Safety Acts had to be invoked. That did not arise in one night or indeed in one month or series of months. There, again, taking the case as being the classic that he wanted to make it, the powers given by Parliament then proved adequate to deal with the situation. I say deliberately that, on that particular line of argument, no case has been made for the retention of this section.

The last case which Deputy Vivion de Valera made was that of a sudden, shall we say grave, revolt arising, where is would be imperative for the Minister for Defence to use his Army to quell it. That is the only case in which there could be a seeming justification for the section. I think the Minister would be well advised to reconsider the section by limiting the authority to issue a warrant to that particular situation. Further, he should put this limitation on himself for his own protection and that of the parliamentary democratic institution that appoints a Minister, that it must be ratified by the Dáil within a certain period.

Now let us review the position plainly. I think the Army are askingfor too much in this section, and that if we give it to them we are conceding to them more than they should get. I honestly feel that it would ill-become this House to prevent the Army exercising its judgment in a situation where national defence was concerned. I think, however, that there can be no difficulty as regards a Minister coming to this House with the considered and concerted view of his Army behind him and asking for powers to call out the Reserve and to put a certain type of ancillary personnel at the "stand to" or the alert because of a menacing national situation, or the menace of a threat of war. I cannot conceive a Minister not getting the willing co-operation of this House, in those circumstances, before he issues the warrant. It protects him and it protects the Army in the normal case of internal disruption, or in a situation arising internally that might cause a localised crisis or a temporary state of administrative break down that must be arrested by stern measures. I think that will not arise in such a way that it will not be possible for the Minister to forewarn the Dáil of the situation and get its prior authority.

I think a Minister would be very well advised to consider carefully the amendment moved by Deputy Cowan, because it serves two purposes at one time. It ensures the right of the Parliament to deliberate on the warrant that the Minister may want to issue and at the same time gives the Army the benefit of the concerted view and decision of the Dáil to back its ultimate activity.

I feel that argument on this section will be futile if the Minister is not prepared to reconsider this particular section. I am not anxious to limit the Minister in any way as to the type of amendment he might conceive, but I would ask the Minister to reconsider it in the light, not of what a reasonable or ordinary Government might do, but in the light of the powers that could be taken under this section by an unscrupulous Government, because that is the yardstick by which we ultimately will have to judge the effect of this particularsection. If the Minister does that between this and the next stage he might be able to put limits in this section that will serve not only as a safeguard for Parliament but, in the final analysis, as a protection for the Army.

Deputy Collins has certainly stretched his case to breaking point, and I am not too sure if he was affording any help to Deputy Cowan by the case which he endeavoured to make in respect to this amendment. He stated that to some extent he was depending on hypotheses. I think what he was looking for was legislation by imagination. We all know that circumstances are likely to arise with which no law or no Parliament can ever attempt to deal. We have had examples all over Europe of circumstances in which Parliaments were obliterated, and I have no doubt in my mind that every one of the States concerned had laws governing their movements and their Parliaments and providing all the necessary safeguards.

We cannot have legislation by imagination. We will have to endeavour as far as is humanly possible to deal with this matter in a realistic way, foreseeing as far as the human mind can foresee, the things for which we desire to legislate.

I do not know if Deputies are aware that the section we are dealing with was introduced in 1940. It has not brought about any of the fears which Deputy Collins expressed. It has been operating quietly, silently, providing for the Army the things that the Army thought it required. No one in this House or in the other House, was worried about it. No one in the State was worried about it.

We have had the lawyers' point of view put forward by Deputy Cowan, by Deputy Major de Valera and, just now, by Deputy Collins. The only case put forward by anyone outside the legal persons mentioned was put forward by Deputy McQuillan. Deputy McQuillan was expressing the views of the man-in-the-street, the man whose views count even above the views expressed by any of the three lawyers I have mentioned. I would say that DeputyMcQuillan was nearer to representing the point of view of that individual than anyone else who had spoken on this question.

What did Deputy McQuillan say? He said:

"In peace time, 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."

Later on he expressed this very realistic point of view:

"If we weigh in the balance, on the one hand, the necessity to give to 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."

I say that that is the view that would be expressed, I suppose, nine times out of ten by the individual in the street, who would not be worrying too much about legal phrases or the effects of a particular word in a legal phrase but who would be thinking in terms of the fact that modern warfare is so different from warfare in the past that we have to provide ways and means of dealing as expeditiously as is humanly possible with circumstances that might be likely to arise out of a sudden emergency.

Every one of us knows that circumstances might arise where it would not be possible at the precise moment to do anything other than the things which the Act provides that we should do. A great deal of play has been made in respect to the powers that this section gives to the Army. It is almost suggested that we are giving to the Government and through the Governmentto the Army the powers to overthrow the whole people. What are the powers that are under discussion? They are: (1) to enlist men under Section 54 for the duration of the emergency as distinct from the ordinary type of enlistment for a fixed period of years. We operated that in the course of the emergency. Every Deputy knows that, instead of enlisting individuals for a fixed period, we enlisted them for the period of the emergency. Having enlisted, they were kept for that period, however long or however short that period might have been.

The next power is: to call out the Reserve on permanent service under Section 89. In the event of circumstances arising such as I have outlined, a sudden overnight emergency, the situation envisaged by Deputy McQuillan, it gives us power to call out the Reserves on permanent service under Section 89. Deputy Collins made our flesh creep with the things which he said it was possible could happen. They could only arise from the imagination of an individual who wants to stretch the case to the fullest extent, as it was stretched by Deputy Collins. The third power is: to billet members of the Defence Forces in private houses or elsewhere under Section 37 in contradistinction to the peace-time position under which, pursuant to Section 38, troops can be billeted only in hotels and such establishments. It may be suggested that that was going too far, that we were inflicting something on the ordinary citizen which we should not inflict upon him. I referred to this in the Special Committee because it was argued out for weary hours in that Committee.

Enlightening hours.

I will not dispute that. They were pleasant hours, anyway, and we were trying to do a good job of work. I pointed out on that occasion that there was no question of compelling civilians to accept these people into their homes, because they would be going there as the protectors of the people. If they were the army of a dictator, it is quite possible that they would be forced into the homes of the people, that the people might notbe prepared to accept them or, if they had to accept them, might not accept them in the same spirit that I suggest they would be accepted in the circumstances in which this particular clause would be given effect to. They would be going there as protectors of the people and, I am sure, would be welcomed as such. There is nothing, therefore, in this power which would be of any great use to a Government such as was envisaged in the course of the debates.

Deputy Cowan had doubts in respect to the validity of the section. In response to what the Deputy said, that he was thinking along the lines that the section is unconstitutional, I have had that examined by my legal advisers and they are satisfied that it is quite constitutional, that there is no clash with the Constitution. What we are seeking is something that has been, as I said, in existence and operating quietly, effectively and efficiently over all these years.

Where does this Bill put the limitation on the definition of emergency which the Minister has put?

Major de Valera

The Constitution puts it.

Of course it does. Deputy de Valera mentioned the fact that amendment No. 9, which I put down, was put down deliberately to ensure that there would be a safeguard. Amendment No. 9 is as follows:—

In page 17, Section 4, to insert at the end of the section, the following new sub-section:—

(5) If, at the time an Order is made under this section, either House of the Oireachtas stands adjourned, that House shall be summoned to meet as soon as conveniently may be.

Except in the Minister's amendment, there is no provision that if the Dáil was sitting it would be dealt with at all.

Major de Valera

Under the existingsection, as soon as may be, every Order must be tabled.

We made it clear that the Order would be laid before the House. I am satisfied that there is nothing whatever to fear in respect of this. Deputy Collins stated that no doubt the Minister would tell them that his predecessor had brought this in. That is correct. My predecessor did bring it in.

And my predecessor had it drafted.

That is quite possible. Therefore, two other Ministers accepted the section as being a section which it was desirable to have in the Bill and which would not involve the dangers which Deputy Collins said it would.

I knew that the Minister's two predecessors had some responsibility for it.

I will give them credit for having examined this, because any Minister who is doing his duty will sit down with his officials and ask questions. He will not accept blindfolded what the officials produce to him. He will examine it and express his own point of view. Since I resumed office, I have made alterations on minor points that perhaps those who preceded me would have made.

Deputy Collins referred to his own personal suspicions which I hope are not shared by his colleagues. He said that he would force a division on this. Will he force a division on his own personal suspicions? These are the words, I think, he used.

I think the Minister has taken me out of my context. In any event, I am going to divide the House on the section.

Very well. I do not think it is necessary for me to say any more but I reiterate that the fears expressed by Deputy Cowan and Deputy Collins do not exist. I do not think they could exist. If circumstances such as those outlined did arise, there is no law in any country in the world that could prevent them. I am sorry that I cannot accept the amendment.

The Minister has said quite correctly that the Bill has been in draft over a long number of years. It was on the stocks before either I or my predecessor took office. It is not a Bill framed in the last three years. When I accepted what the Minister now seeks to provide I knew at the time that Parliament would take a serious view of it and that it would not be easy to get such a provision passed into law.

When an officer is called out on active service he likes to be bound by the military law and he likes to be protected by all the law that can be put around him. The Minister says that Deputy Cowan and Deputy Collins want law by imagination. I think legislation by imagination is better than legislation by regulation. The whole trend of ministerial action in every Government in the world at the moment is to have legislation by regulation. That is something that must be put an end to if Parliament is to survive and retain its power.

If the Minister states in the definition section what constitutes an emergency, that will be all right and we will have no objection to it. I think the Bill could easily be amended to that effect. Deputy de Valera gave us examples of what he thinks would be likely to constitute emergencies. He talked about emergencies in the past, and for the first time he made it clear to us what is in the mind of the Fianna Fáil Party in connection with this. It is something which was never in my mind certainly.

The emergency visualised by me and, I think, by those who are advising the Minister, was an emergency constituting an external rather than an internal danger. It is true that the Constitution gives the Government all the power it could possibly want in the case of an external menace. Where the limitation arises is in the case of internal danger. Deputy de Valera gives as an example of an internal danger the Blueshirts; he could have added the formation of Deputy Cowan's army. Under the emergency power herein contained, the Government should have declared a state of emergency for the suppression ofDeputy Cowan's army if we accept Deputy de Valera's contention. At that time a serious effort was made by those who are now in Government but who were then on these benches to get me to take such action as that visualised under this emergency power. I was challenged recently on that and told that it was never done privately. It was not done privately. It was done publicly here in the House. I was asked what steps was I taking to suppress this unlawful and illegal and, as some sneeringly said, contemptuous army raised by a Deputy then supporting the inter-Party Government. I do not know if that mentality still prevails. I do not think it does. I think Deputy de Valera was certainly calling on his imagination when he produced that particular rabbit out of the hat. It obviously appeared to him to be a good argument when he was making it. I do not know if he believes the argument is as good to-day as when he first advanced it.

Major de Valera

I took the case of the Blueshirts who were attempting by force and military organisation to disrupt the country at the time.

That is anex partestatement made by the Deputy's colleagues for the purpose of misleading the people.

Major de Valera

It is a statement of fact made by Deputy Vivion de Valera with his wits about him and a knowledge of the history at the time and also a knowledge of who constituted the Blueshirts.

The Deputy should control himself.

Major de Valera

I did not raise it to-day. It is you who have raised it. The newspaper files are there.

Seemingly I am to let everything go by default. I am to take all the sneers thrown by Fianna Fáil and make no answer.

We are not discussing the pros and cons of the Blueshirts.

Deputy de Valera made a statement on the last occasionon which this Bill was before the House.

The Chair pointed out on that occasion that the Deputy was not in order in discussing the Blueshirts or any other army on this amendment.

I am talking of the power that may be taken under this section and when we are given instances of what would be likely to be the future occasions on which such power will be used, then we must take notice of it and we must take notice of what is in the mind of the Minister and in the minds of the Government Party who will operate this measure. The Government Party will not, of course, be long there to operate it, but this may be the law of the land 50 years hence. What could an unscrupulous Government not do under it? It is very easy for the Minister to ask: "What powers am I taking under it; what power does it give me?" And it is very easy for him to reply: "It gives me the following power; it gives me power to recruit for specified periods." The Minister gives examples from the past. He then goes on and says that it gives him power to billet and to call out the Reserves.

Everybody knows that there is more in calling out troops than just calling them out. Once they are called out they are on active service and when the Army is on active service the civil law is suspended to a very large extent and everybody in the area in which the emergency is declared becomes subject to military law. Members of this House could be stopped coming to the House. Parliamentary business could be held up for days to prevent them annulling certain regulations. This is a very serious matter. I hold this is a dangerous power to give the Minister. It is a power that should be restricted and the Minister should amend the Bill by declaring in the definition section what will constitute an emergency. The amendment put down by Deputy Cowan is a safeguard to a certain extent, but only to a certain extent.

It leaves Parliament supreme.

Before we take questions, I would ask the Chair for specific permission to put in an amendment now opposing Section 4. On the Report Stage one must put in a specific amendment to oppose a section.

Might I ask the Tánaiste a question? We are involved here in a very important constitutional discussion. We started it last October and we resumed it to-day. It is very hard to keep the threads of that discussion in one's mind and I wonder if we could get sufficient time at least to get over this difficult section which I think will take some little time.

We will try to arrange that.

Amendment No. 7 proposed to delete Section 4. That amendment was passed over.

Actually what happened was when this particular matter was dealt with neither Deputy O'Higgins (Junr.) nor myself was here and the amendment was passed over. I am asking the Chair—I am not taking the Minister unawares because I have given him specific notice of this—to reinstate it.

Is it not possible to vote against the section on the Report Stage?

No. I am not taking the Minister for Defence unawares in making the request, and I would ask the Chair to reinstate the amendment to delete the section.

Debate adjourned.