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.—(Peadar Cowan).

If the Deputies will allow me, I would like to make a short statement which I think will help me in dealing with this section. During yesterday's debate fears were expressed that if the Houses of the Oireachtas were not sitting when an Order was made under this section a bad Government might deliberately delay calling the Houses together to consider it. In my amendment No. 9 I propose to insert a section to provide that in such circumstances both Houses of the Oireachtas will be summoned to meet as conveniently as may be. To meet the point made by Deputy Collins yesterday, I am prepared, if the House agrees, to add at the end of my amendment the words:—

"but in any event not later than 21 days after the Order is made."

I feel that this provides all the safeguards necessary.

In my view what the Minister now suggests does not meet the case at all. What the Minister has said does not alter the fundamental principle. When concluding on my amendment I shall show in what way it does not alter that fundamental principle. Deputy MacEoin was in possession when the discussion on the Bill finished yesterday.

Deputy MacEoin will not be here to-day.

Then I will call on Deputy Cowan to conclude on his amendment.

I took it I would have a little more time to consider this difficult problem. The amendment I put down to the section was designed for the purpose of keeping within the Oireachtas the power of deciding when an emergency situation is to be declared. I feel that the Minister's advisers have missed the fundamental point. The Minister stated that Section 4 was inserted in the Defence Forces (Temporary Provisions) Act in, I think, 1941. I am not altogether sure of the exact year but the important point is that the section was inserted during a period of actual emergency. It is possible that at that time the Oireachtas did not worry very much about the particular section because there happened to be a state of emergency in existence. Secondly, this was a provision inserted in a Bill which was purely temporary in its nature, which only existed from year to year and which could be amended at any time when the annual continuing Bill came before the House.

The section, as it stands, gives the Government power whenever they consider the circumstances of such a nature as to warrant their doing so to declare by Order that a state of emergency exists. In my view, no Government ought to be armed with such a power and I believe that the Constitution provides against such a power being given to the Government. We are discussing a matter of the gravest importance. Under Article 28 of the Constitution—and this country is different from Britain because it operatesunder a written Constitution in which the powers, functions and responsibilities of different persons and different organisations are specifically prescribed—the powers of the Government are clearly defined. The powers of the Dáil, the powers of the judiciary and the limited powers of the Army are also clearly set out in the Constitution.

In Britain there is a more flexible position where they have no written Constitution and where Parliament is supreme. Here Parliament is supreme only within the Constitution and certain Acts that are passed by this Parliament can be held by our Supreme Court to be unconstitutional. The Supreme Court has held in recent years that an Act passed by this Parliament was unconstitutional and could not operate and it was declared to be void and a nullity. That was the Act that dealt with the Sinn Féin funds. In my view, if this Dáil were to pass this section it would be acting contrary to the Constitution and the section could be challenged in the court. I am of opinion that if it were so challenged the courts would hold that the Oireachtas had no power to pass such a section. It is a grave section, a section which entitles the Government by Order to declare that a state of emergency exists and, as the Minister said yesterday, the declaration of a state of emergency enables the Government: (1) to alter the machinery of recruiting; (2) to call up all, or any part the Government likes, of the Reserves; (3) to exercise powers of billeting on the civil population.

There is another power which the Minister did not mention and which, I think, is important because it is consequential. When the Government declares a state of emergency under this power, it has also the power to declare that the Army or a part of the Army is on active service. When they declare that a part of the Army or all the Army is on active service it means that courts-martial operating against officers and soldiers have more extensive powers of punishment than they would have if the Army was not on active service.

I do not think that these are minor powers. This Dáil, as is the case in every democratic Parliament, holdsdirect control over the military forces, and it says annually how many soldiers and officers the Minister or the Government may have; it provides for their pay; it provides for the number of reservists that may be established, and provides, as it does in this Act, the limited ways in which the Reserve and reservists may be called out as an active part of the armed forces of the State.

By a military order under this section, the Government may bring the whole Reserve under arms, cause the country very serious expense in pay and maintenance and for other provisions, perhaps, without justification. The Government can take the Army or a part of the Army and billet that Army on the civil population. If they think there is some particular disturbance in a locality they could, under the provisions of this Act, billet officers and soldiers in the homes of every person that might be opposing the Government in that particular part of the country and compel the inhabitants, under pain of punishment, to provide food and vehicles for them, to provide petrol for Army lorries and forage for Army horses. No one will tell me that is not a grave power to give the Executive without any reason.

When the constitution was being considered—and it received most serious consideration at the time—provisions in regard to an emergency situation were inserted in Article 28 of the Constitution. Article 28 sets out the powers of the Government and it says:—

"War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann."

That is the first proviso, that the Government has no right to declare war and the State has no right to participate in any war save with the assent of Dáil Éireann. Then it provides this:

"In the case of actual invasion, however, the Government may take whatever steps they may consider necessary for the protection of the State, and Dáil Éireann if notsitting shall be summoned to meet at the earliest practicable date."

I think that is one of the points Deputy McQuillan had in mind when he spoke, that in the case of actual invasion— but it must be actual invasion of this country—the Government are given the right under the Constitution to take whatever steps they consider necessary to protect the public, and there is a saving clause that the Dáil will be summoned as soon as practicable to consider it. The Government would be entitled in any State, whether there is a written Constitution or no Constitution, to operate that power. It is a very old maxim and a very old law that the safety of the public is the supreme law, and that is provided in the case of actual invasion. The last part of this Article is a very vital part because it says this:—

"Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion."

That again is one of the points that was mentioned by Deputy Major de Valera. Any law that this House passes to deal with the preservation of the State in time of war or armed rebellion would not be contrary to the Constitution. The section we are discussing has nothing to do with war or armed rebellion. The Article goes on further to say:—

"In this sub-section `time of war' includes the time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved 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."

Any law that is passed by this House and by the Oireachtas and which is expressly declared to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion is not contrary to the Constitution. I asked the Minister to look into the constitutional position. This Bill is declared to be "An Act to make further and better provision in relation to the defence of the State and the Defence Forces and to make provision for other matters connected with or incidental to the matters aforesaid." It does not say, under the Constitution, that it is an Act for the purpose of securing the public safety or the preservation of the State in time of war or armed rebellion —and such must be expressed if this Bill is to be considered to operate in any way under that part of the Constitution. That was one of the matters I wanted the Minister to look into.

We have, therefore, this position. No war can be declared without the assent of Dáil Éireann. Dáil Éireann has the power to declare a war—it is not the Seanad or the Government or anyone else but Dáil Éireann. In case of invasion, the Government is entitled to take any steps they think necessary. In case of war or armed rebellion, the Government may take such steps as they are authorised by law to take— and no more. The Constitution says:—

"In this sub-section `time of war' includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State."

In other words, if there is a war between France and England or between Russia and America, in which we are not directly involved, but regarding which the Dáil and the Seanad each decide that a national emergency exists affecting the vital interests of Ireland, then any law that would be passed by the Oireachtas to deal with that would not be contrary to the Constitution.

We see, then, that the Constitutionis very clear on the limitations it places on the Dáil and on the Government in these vital matters of war, actual invasion, or a war in which we are not directly involved, but in the case of which each House of the Oireachtas thinks that it is such a serious matter that a national emergency exists.

The peculiar thing about it is that the Constitution refers to a "national emergency," whereas the Minister for Defence in this Bill refers to an "emergency." In my view, there is no difference between the two phrases. If this matter were tested by the Supreme Court, it is my view that the Supreme Court would hold that this House is entitled to pass such laws as they are authorised to pass under that constitutional provision dealing with emergency situations, but that they are not entitled to pass any other law to declare the existence of an emergency except the ones they are so authorised to pass. That is why I say this is a matter of the gravest importance, as it would be handing over to the Executive or to the Government powers which this Dáil has no right to pass over to the Government and which, under the Constitution, we have no right to give to the Government.

In the course of my remarks yesterday, I think I informed the Deputy that we had this examined from the legal point of view, as he asked that it should be examined, and the advice was that there was no clash between the Constitution and the section.

I accept that the Minister said he was advised by his advisers that there was no clash. There have been Acts passed by this House and Bills brought in by Ministers, which have subsequently been held by the Supreme Court to be unconstitutional; and in those cases I am quite certain that the Minister concerned was advised that there was no clash between them and the Constitution. I hold that there is a clash in this case I may or may not be right.

Major de Valera

There are otherlawyers who would hold the contrary opinion in this House.

That is what keeps them all going.

I never pretended to be a constitutional lawyer, I know nothing about constitutional law; but over the years I have made some study of the safeguards for democracy—which I think every politician should study. Democracy has been established, over many centuries, by the stubbornness of individuals who swam against the tide and not with it. When the Minister refers to Deputy McQuillan as expressing the view of the man in the street, it is not helpful in a discussion of this nature. The man in the street is not competent to decide whether a section of this kind comes within the Constitution or not. It is the man in the street in many countries who frequently says that a particular person who is fighting an issue is a nuisance. There have been many issues of vital importance fought by individuals but I do not want to refer to them. The man in the street may think at the time that such a person is a nuisance, but in actual fact it often is the fight of that person that protects the rights and the liberties and the freedom of the man in the street.

I am sorry that, where there is a fundamental issue here as to the rights of Parliament and as to the rights and liberties of the citizen, this Dáil has not had the benefit of the advice of Deputies who should be competent to help this House in arriving at a decision. It is regrettable that a fundamental matter of this kind should be ignored by prominent Deputies. Deputy MacEoin, as an ex-Minister for Defence, has expressed views in opposition to the section. In the Special Committee, Deputy Cosgrave expressed doubts about it and Deputy Tom O'Higgins expressed opposition. That was on an amendment that I had down in the Special Committee.

This is a very serious matter. A Defence Forces Bill is one that should be passed through this House with the co-operation of every Deputy and with the goodwill of every Deputy. Thereshould be no question of putting into a Bill a section to which there is serious objection. I should have liked the Minister yesterday to have said why the section should be put in, but the Minister did not give any real reason why the House should insert a section which is doubted by Deputies of standing, like a former Minister for Defence, Deputy MacEoin, Deputy Cosgrave and Deputy O'Higgins. Why the Minister should attempt to put in a section such as that in opposition to the views of these Deputies——

Major de Valera

But there are other Deputies.

——without stating to the House the reason for it, I do not know. Summarising what the Minister has said for the section, it is that the arguments against it are foolish, ridiculous and do not hold water; that Deputy McQuillan, a sensible Deputy, expressing the views of the man in the street, does not agree with my opposition to it; that it only allows the Government to alter the mode of recruiting and to recruit men for the period of an emergency; that it only allows the Government to billet soldiers on the population and to punish people if they do not billet them and that it only permits the Government, having declared an emergency, to declare that the forces are on active service.

In my view, the Minister has not made a case for the section. He said the Bill was presented to this House by his predecessor with the same section in it. I would have taken the same opposition to the section if we had had an opportunity of discussing it when the Bill was introduced by his predecessor. I know, and the House knows—I think Deputy Collins mentioned it yesterday—that the military, not only in this country but in every country, seek more power to make it simpler for them to operate, and if this section is put in on the advice of the military authorities, it is all the more reason why it should be left out.

It is not a section which enables them to administer the Army in a better way, but it is a section whichalters the legal position of citizens. It compels a farmer or many farmers down in a part of Clare to billet soldiers and if they do not do so, they can be fined or put in jail. It entitles the Government to take a reservist from his farm in County Westmeath or elsewhere, bring him up here, put him in uniform and keep him there perhaps to menace somebody. It restricts and interferes with the liberty of that reservist. It restricts and interferes with the liberty of the citizens and it endangers the lives of the officers and the soldiers who can be subjected to more severe punishment when on active service than when not on active service.

These are dangerous powers to give to any Government and I want the Minister to realise that it is no use for him to say, as he has said, that the Government will act sensibly. I have no doubt the present Minister would as I have no doubt that some person who occupied the position of Minister for Defence in the past 30 years might not in particular circumstances, but when we are passing permanent legislation, we should ensure that that permanent legislation will protect the ordinary citizen against a Minister or Government at some future time who may act not only unwisely but badly and wrongly. Where would the necessity be for the Constitution if we were all to act on the basis that every Minister we shall have from now until the end of time would only act sensibly and that every Government we shall have from now until the end of time would also do so? Restrictions are placed in Constitutions because experience has shown that every person who occupies ministerial office is not the soundest, the wisest and the best possible man in the world.

We impose the most severe restrictions in our laws in relation to judges in their dealing with crime. Some people may say: "A judge is a wise and sensible man. Let him imposewhatever punishment he thinks is right," but Parliament would not permit that. Parliament says a judge may go so far but no further and the Constitution says that the Government and the Dáil may go so far but no further. I ask the Minister to say to the House that, having heard the arguments, not seeing at the moment any great necessity, or in fact any necessity at all, for this section, he is prepared to drop it entirely. That would be the correct approach for the Minister in this case. It is no good for the Minister to say that the Government will exercise that power with wisdom and restraint and will call the Dáil together as soon as possible or will call it together within three weeks of having exercised the power. That is no protection, no safeguard and I feel that if I were to sit in this Dáil and allow that section to be passed as it is, I would be interfering with the rights, the liberties and the freedom of the people and giving to a Government powers they ought not to get.

Somebody has said that eternal vigilance is the price of liberty, and this is one of the places in which there must be vigilance. I feel it a responsibility and a duty on me as a Deputy to be as vigilant as I can in regard to freedom and liberty. I do not think it is a matter which should just be decided by a vote of the House. If it is to be decided by a vote of the House, well and good, but if the majority vote for it, it means that the majority has not been exercising the vigilance in regard to it that they should. Perhaps, when the Minister really considers the basis of the opposition to the section, he will feel that it is a section which should not be put into the Bill.

Debate adjourned.
The Dáil adjourned at 2 p.m. until 2 p.m. on Wednesday, 18th February, 1953.