Having spent the morning putting in some useful parliamentary work on an urgently-needed piece of social legislation, namely, the Redundancy Payments Bill, it is a most depressing experience to have to come along this afternoon and oppose this section of this Bill. One would have thought that amending legislation is designed to perform some social good or to remove a problem. I suggest to the House that by any criterion this section is unwarranted.
It is 30 or 40 years since the terms "Fascist" and "Gestapo" were fired across this House with such vehemence. I do not think that Deputies, particularly newly-elected Deputies such as Deputy Cooney, indulge in such phraseology lightly. Therefore, it behoves the Minister when such charges are made to be constrained in his reactions and to pay some attention to the sharp reaction which has come not only from Members of this House but from every authoritative representative of legal, social and political opinion. The Minister cannot produce a public figure of legal or social standing or with any judicial experience, or with any experience in the Garda Síochána, who will give him an iota of support for section 4.
Although I doubt if the Minister is renowned for his humility, he should accept that there is sharp repugnance towards section 4. I would draw the analogy of how his predecessor reacted. The Minister made great play of section 22 of the Criminal Justice Bill, 1967, and of the various meanderings of his predecessor in his attempt to get the Bill through the House. I should not like to see any Deputy reduced to a shivering mass as was the former Minister for Justice, Deputy Ó Moráin, when, with perspiration streaming down his face, he withdrew the Criminal Justice Bill at the Fianna Fáil Ard-Fheis some years ago. He was compelled to do this because of the reaction of the Fianna Fáil organisation. It must be stated in fairness to Deputy Ó Moráin that he withdrew the legislation.
However, the current Minister for Justice decided to resurrect part of it. May I suggest to any Fianna Fáil Deputy who goes into the Lobby in support of this section that he has soiled the term "republican" which he is supposed to represent.
When we discussed this matter on 26th May, the Minister expressed the view that there is nothing novel in what is proposed in this section. The Minister is more than stretching the imagination. This section is obnoxious and repulsive and it must be opposed completely. The Minister has gone on record as saying that there was fairly drastic drafting on his part. He has said that, having had a look at the Bill, he now wishes to ameliorate the position of the defendant. According to the Minister the defendant is now in a better position as a result of his amendment than he was under common law and the rights of the person are defined clearly. These are sweeping statements made by the Minister as judge and jury—as he will be under the Bill.
One should take the ten commandments of proof which the Minister is going to produce here. First, he envisages that in practice the provision of section 4 will operate in the following way. The Minister states that the prosecution will have to prove that the alleged statement was actually made. Will our hard-pressed gardaí be given new training in stenography? Will all the recruits at Templemore be given a crash course in shorthand so that they will be in a position to prove that the alleged statement was made? I would ask the Minister to elaborate on how this will develop.
Will a member of the Garda Síochána attend a protest meeting armed with tape recorders in order to be able to prove that the alleged statement was actually made? In future will the notes of newspaper reporters be used? The Minister has a peculiar love-hate relationship with newspapers in this country but he is careful not to go too far. It might be said that the first commandment is that the prosecution shall prove that the alleged statement was made. I see the ranks of the Special Branch swelling dramatically so that the Minister may carry on his vendetta against protest groups. These groups have assumed, in my opinion, an importance they do not really deserve all because the Minister has given it to them. He is so busy talking about groups that every impressionable adolescent must be more than anxious to join, if only to prove the Minister's point of view.
The Minister's second point is that it must be proved that the protest was made by or on behalf of a group of persons. Every Deputy who has spoken has pointed out the entirely subjective connotation of the term "group" in the section. What does, in fact, constitute a group? Is it one person, two persons or half a dozen persons on a platform, or is it any particular organisation? The Minister will assure us that it is up to the court to decide. The Attorney General, the State solicitors, the Garda superintendents, the Garda inspectors, the sergeants have a right to know what exactly is in the Minister's mind. There is no attempt at any definition of the word "group" in this section. The section is spurious. It is one which no self-respecting parliamentary draftsman would include in any legislation.
The third commandment says that the accused person may be one of a group on whose behalf a statement was made. Will there be physical personal observation by members of the Garda Síochána of every single protest group in the country? How will we have proof that the accused was one of the group? Will we have the South African technique whereby membership cards, minutes of proceedings and all the rest will be kept in Dublin Castle and then produced at the appropriate moment to show that someone was a member of a group on whose behalf a statement was made? The Minister must see a rich harvest here. He has been hooked on empty protest. He should get off the hook, recover his sense of balance and allow Parliament to proceed with more constructive legislation.
We have the phrase, introduced by the Minister out of concern for the accused, that the court, having looked at the circumstances of the case may regard proof of the defendant's membership of the group as proof of consent in the absence of any adequate explanation. This will be a paradise for the Attorney General or for anybody who prosecutes and the Minister will spend the rest of his life chasing around after State Solicitors. This is tendentious and questionable legislation.
We come then to the constitution and rules of the group. Most of these groups form on anad hoc basis. They gather on a particular occasion. It is open to question whether many groups have rules and constitutions. But, if they have rules and constitutions, they will have to produce these. The Garda Síochána will sequester them and the members of the group will have to go before the court and produce their constitution and their rules. This is bureaucratically repressive. The Minister is making a laughing-stock of himself.
We come then to the extent to which the defendant participated in the activities of the group. He attended one meeting. Is he guilty or is he not? If he attends three out of seven meetings he will be adjudged guilty. The unfortunate accused will have no conception of what may be the interpretation of "participating". He may become involved by merely standing on the street, being rounded up and pushed into a Black Maria and brought down to the Bridewell. There were many repressive edicts in bygone centuries. The Minister has become newly converted to these.
The phrase "provided the court thinks it is reasonable to do so" is a very magnanimous contribution from the Minister. If the court thinks it reasonable that an individual participated to some extent in a particular group he will be judged to have committed a criminal offence. He may have made a comment. He may have smiled. He will get six months in clink. No self-respecting Minister for Justice should put such a provision on the Statute Book.
All these things having been established, the defendant is then informed that the prosecution has done enough, to quote the Minister, to establish aprima facie case and, in the absence of any adequate explanation, the court may feel constrained to infer that the defendant consented to the making of the statement. The Minister should spend a few weeks in the cattle marts talking to the farmers to find out what their interpretation is of common sense. This is legislation gone mad. It is utterly undemocratic. It is at variance with every democratic concept. The Minister seems determined to outdo his predecessor where the rights of citizens are concerned. The constitutionality of section 4 is in question.
I would urge the citizens of this country to test the constitutionality of this section because it is called into question by any criterion, whether one takes into account the defunct 1922 Constitution or any of the provisions of the 1937 Constitution. It calls into question the exercise of freedom of expression. It would not be the first time that the constitutionality of a whole piece of legislation was tested in the Supreme Court and the legislation thrown out.
The Minister has advanced a novel defence in regard to shifting the burden of evidence. He says an analogy is to be found in section 28 of the Larceny Act, 1960. The Minister is being absurd when he tries to draw an analogy between the physical possession of housebreaking tools and the public statements or verbal actions of an individual. Such an analogy does not hold water as far as any person in the country is concerned. Anybody in the legal world to whom I have shown the section was not impressed by it or by the Minister for having introduced it.
I suggest that if we require this piece of legislation at all—we do not need it at this point of time—public order or morality has in no way reached such a pitch of insecurity that would warrant section 4 and that therefore the Minister should withdraw it. One must challenge Fianna Fáil Deputies in this regard. I am shocked at the total manifestation of hypocrisy by Deputies such as Deputies Blaney, Brennan, Sherwin, Allen, O'Connor, Haughey, Timmons, Gibbons, just to mention a few of them. I do not think a single member of that group will support that section in conscience. They have gone around the corridors of the House saying so but of course they will walk into the Lobby this evening and support it because they are scared of a general election in which they might lose their seats. As far as the Minister is concerned, they have had a blank cheque to exempt them from such charges as incitement, encouragement, conspiracy. I draw the analogy between the Firearms Act and this. They are the people who wanted armed military incursions into Northern Ireland but there was no question of legislation being brought in to deal with the standard of hypocricy of this House.
I challenge Deputy Blaney if he is the much vaunted republican so vitally interested in civil rights in Northern Ireland at least to show some sense of perspective and to come in and oppose this legislation. Deputy Haughey hopes to have an each way bet on the position of Taoiseach but when it comes to the crunch he is prepared to swallow his principles and support this section about which privately he said that the Minister was daft to go ahead with it. He said the same outside the House. He could not say it inside because it would upset the show.
I find it depressing that a relatively new Minister should be so hard up in terms of precedents that he has to go right back, as Deputy Cruise-O'Brien pointed out, to 1861, and 1851 and that he has to rely on sections of Acts passed more than a century ago to apply to modern Ireland of 1971. In its outlook this section is simply what Deputy Cooney called it, fascist. I do not think any other word could more appropriately describe it.
I was amused at the dependence of the Minister on an analogy with New York. He lauded the courts of New York and their academic judicial advisory groups on their legislation. One may have a lesson to draw from this analogy with an area where the Minister finds the law so satisfactory, a city renowned for its brutal violence, where the whole fabric of the occupation of premises has broken down, where one is not safe to walk the streets in the evening. The Minister finds nothing strange in drawing an analogy between New York and the Republic of Ireland, a peaceful island off the coast of Europe. The only thing one can say is that he has here opened up a whole new vista of legal definitions. I do not think the implications of section 4 are fully appreciated by the Irish people and I think each newspaper should print that section in large type, surrounded by black rules, if it is passed.
Many representative citizens have opposed the section, none more strenuously than Father Sweetman, the Jesuit. It is appropriate that one should place on record his view of the Bill and of this section:
This particular Bill and this particular section make a criminal out of any individual in any group of persons who encourages or advocates entry unless that individual can prove ignorance or repudiate his colleagues. Surely this contravenes the right of a person to accept the majority decision of the society to which he belongs even if he does not agree with it. To force him by law to dissociate himself from the contents of the statement is clearly undemocratic.
I do not think he was extreme in that expression of opinion in regard to this Bill. He was referring to a Fianna Fáil cowboy and Indian type legislation— the goodies and the baddies, and we have it here under this legislation. My colleague, Mr. Donal Nevin, of the Irish Congress of Trade Unions, was absolutely correct when he said this Bill, with its overtones, leaves the Criminal Justice Bill far behind. Rev. Fr. Enda McDonagh, Professor of Modern Theology in Maynooth College, has said this Bill gave him a vision of society which he found impossible to take. He said the Government ought not to be tackling the symptoms, that is, the deprived, the weak, that they should be tackling the strong who are responsible, and that this Bill would protect the strong even further and would not alleviate the problems. I want to quote another eminently respectable public figure, Mr. Louis McRedmond. He has said that the Bill is crude, unjust, that it is bad law and that section 4 establishes the new concept of guilt by association and undermines the principle of a person being innocent until proven guilty.
These are sane, competent public commentators, whose comments the Minister will find it difficult to argue against. When one puts this legislation in perspective, one remembers that it is the Greater Dublin area which is the only area of the country where house squatting has been practised. This has largely arisen from the absence of Dublin Corporation, from the self-immolation of 45 councillors who declared themselves out of office. These councillors do not exist and have not existed for a number of years. It is quite miraculous that with the total absence of local representatives there has not been greater confusion in local authority housing in the Greater Dublin area. However, even with the absence of local councillors there are 50,000 tenants in Dublin Corporation houses. There are at least 5,000 or 6,000——