Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage (Resumed).

Question again proposed: "That section 4, as amended, stand part of the Bill."

Before Question Time I was dealing with what would be an offence under section 4 and I pointed out and I want to reiterate that merely to criticise housing conditions or encourage people to squatsimpliciter would not amount to an offence under section 4 (1). I pointed out that section 4 does not in any way affect or curtail freedom of speech to any degree greater than the existing common law offence of incitement which has existed for a very long period. Deputy Dr. Browne tried to create the impression that the section was in some way aimed at newspapers. This most certainly is not true and while like Deputy Dr. Browne I do not always agree with what newspapers say, I most certainly respect their right to say what they feel is correct. If they make an error, like Deputy Dr. Browne, I freely accept that they will freely publish a correction if the matter is brought to their attention. What Deputy Dr. Browne and some other Deputies seem to seek to imply now is that in some way newspapers should be in a better position than ordinary citizens in what they say or on what they comment and the way they comment on it. I cannot accept that. They have been subject to the ordinary law and they are still subject to it and when this Bill is passed they will not be in any weaker position than at the moment nor in any way worse a position vis-à-vis the rights or duties of ordinary citizens.

I was also dealing, when I reported progress, with the complaint of Deputy Fitzpatrick and others in regard to the amendments which I put down to subsections (2) and (3) of this section, which somewhat recast the two subsections. As I pointed out, I did this in deference to the objections, expressed by quite a number of Deputies opposite, to certain features of the subsections which they felt were objectionable. I complied with their wishes as it were——

(Cavan): The Minister attempted to.

——in taking out these allegedly objectionable provisions and in particular taking out the provision whereby an absolute defence was given to somebody provided that he dissociated himself from the activities of his colleagues in whatever organisation it was. Now I find myself in the extraordinary position that I am being most heavily criticised for having made those very amendments which I made in response to criticisms opposite, in particular the criticism of Deputy Fitzpatrick which I quoted earlier, at column 87 of Volume 251 of the Official Report.

I think I am being quite fair when I say that those who would criticise a section for allegedly containing certain defects and when the section is amended to remove those alleged defects the same person would criticise the amended section because it does not contain those alleged defects that person is a hypocrite and only a hypocrite and I do not think that that could be called an unfair description.

(Cavan): Would the Minister read my complete reference to section 4 on January 27th? I said that the entire section was objectionable and I would oppose it tooth and nail.

I read what the Deputy said about the subsection which I amended. That is the point I am making.

(Cavan): The Minister read bits of it.

Deputy Fitzpatrick's contribution on this section, which he feels is the nub of the Bill and in his view the most objectionable part of it, suggested clearly that there is no need for this Bill and that we were going at the matter wrongly and so on. I should like to refer the House to the Official Report for Tuesday, 26th May, 1970, Volume 247, column 110, when Deputy Fitzpatrick was speaking on Second Stage of the Prisons Bill, 1970. I quote the Deputy:

We have very unsettled conditions, restless conditions: the nation is perturbed by crime of all descriptions, ranging from armed bank robberies resulting in the death of police officers, to what might be regarded as something less, in the form of sit-in protests, fish-in protests, protests of one sort or another. I do not intend to dwell on this at any length but I think the toleration of the taking over of public or private buildings, whether as sit-ins under the auspices of cultural or architectural activities or sit-ins in protest against lack of housing or fish-ins as a national protest is nothing short of tolerating anarchy and can lead only to total disrespect for the law and to the common commission of more serious acts of violence. It is bound to generate disrespect for the law and for public and private property. I hope that the Minister, in entering his office, will tackle these problems as they should be tackled because they have been overlooked and tolerated for too long.

(Cavan): Will the Minister read me on the Second Stage of this Bill and any other public pronouncements I made? I have been perfectly consistent.

Deputy Fitzpatrick gave me some advice shortly after I became Minister for Justice in May, 1970. It is fair to say that in so far as that advice is concerned I have carried it out to the letter. Deputy Fitzpatrick comes in here and criticises the need for the Bill, the type of Bill and so on. That can fairly and squarely be described as hypocrisy of a kind rarely seen in this House.

These was criticism made by Deputy Cooney on the last occasion, as well as by a number of Deputies today, about the words "adequate explanation" which appear in the last line of subsection (3), as amended. It would be no harm if I referred to the history of where those words came from. I adverted to this previously on the debate on amendment No. 12.

Those words and the whole concept and drafting of the subsection are precisely the same as appeared in a Private Member's Bill promoted by Deputy Cosgrave and Deputy Fitzpatrick on behalf of Fine Gael some time ago in relation to the use of knives. The House will recall that the two sections which they put together and called a Bill were taken word for word from sections 22 and 23 of the Criminal Justice Bill. I am not comparing the merits or demerits of the situation to be dealt with by this Bill with the situation to be dealt with by the Criminal Justice Bill or the Private Member's Bill to which I have referred. I am saying that the legal concept is precisely the same, the drafting is the same and the principles involved are the same. If they are all right in the Criminal Justice Bill or in a Private Member's Bill, I fail to see how the same concept is not right in a Bill such as this.

In effect, what I have done in the amendment and the situation we now have in subsections (2) and (3) as amended, is that it is a matter in each case for the court to make up its mind as to whether a person is guilty. The court has complete and absolute discretion. Under the Bill as previously drafted it had not the same discretion but, as it is now, the court has a discretion in trying an offence under this section which it would not have if it were trying somebody for incitement under the Common Law, under the Petty Sessions Act or under the Act of 1861 in relation to aiders and abettors. The court now has discretion to take all the circumstances into account and to decide whether it is fair to convict a person. Under existing law it does not have that discretion. Therefore, I cannot follow how the argument can be put forward that people are in greater danger or that there is an extension of the existing law. As I pointed out previously, the contrary is the case. The defendant has greater safeguards under this section than he has at Common Law under an indictment for incitement, or an indictment for counselling, procuring, aiding and abetting.

Play was made of the use of the words "encourages or advocates". It was suggested by Deputy Cruise-O'Brien and others that the old words of "counselling and procuring" are preferable to the modern, perfectly clear words we use in the section. The case was made that the words "encourages or advocates" were not used in any other legislation in this country or in any other country. It was stated that it was undesirable to use modern clear terms and, apparently by default, the argument was that it is better to use old-fashioned terms, the meaning of which would not be clear to the man in the street.

As this point was made on Second Stage by Deputy Cruise-O'Brien, it might be no harm to compare what is the law relating to encouraging and advocating, inciting, aiding and abetting, counselling and procuring in other countries at the present moment. I have confined myself to looking at the law in democratic countries only as I see no point in going to the kind of places Deputy Cruise-O'Brien and other Deputies might put before us as models of how a country should be run.

The Minister should grow up and treat this matter in the proper way.

In the State of New York, section 2034 of the Penal Code provides that a person guilty of using or of procuring, encouraging or assisting another to use any force or violence upon or detaining any lands or other possessions of another, except in the cases and manner allowed by law, is guilty of a misdemeanour. In the American Law Institute's Model Penal Code a person is guilty of solicitation to commit a crime if, with the purpose of promoting or facilitating its commission, he commands, encourages or requests another person to engage in specific conduct which would constitute such a crime.

I might mention that the American Law Institute is composed of judges of the United States Supreme Court, judges of the States Supreme Courts, professors of law in the universities and legal writers of repute, in fact most of the leading jurists of America. They publish official restatements of the law in many volumes and also model codes, such as the Model Penal Code, which are designed to serve as models for the legislatures of individual American States, with a view to achieving some degree of uniformity in State law.

And, hey presto, America is a land of peace and goodwill.

In France, under Article 60 of the French Penal Code, a person who counsels the commission of an offence, afterwards committed, is punishable as an accessory.

In Germany, Article 49 (a) of the German Penal Code provides that a person who attempts to instigate another to commit an act punishable as a felony shall be punished in accordance with the provisions applicable to the attempted felony.

Section 21 (2) of the Canadian Criminal Code provides that, where two or more persons form an intention in common to carry out an unlawful purpose and to assist one another therein, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

What about South Africa?

All this is irrelevant. It is just wasting time.

That has also been the law in Britain for many years and this section in no way extends that law——

Absolute nonsense. The Minister's own quotations condemn him.

——which would be open to him under the existing common law of this country.

I oppose this section, amended or unamended. It is a most obnoxious section in a most obnoxious Bill.

Deputies

Hear, hear.

It is distressing to come in here and hear a Minister of a democratically elected Government and a democratic Parliament advocating the acceptance of this piece of legislation as part of our statute law. It shows a regrettable lack of appreciation, in particular, of what I consider to be the cornerstone of democracy, the idea of the rule of law.

For the benefit of anyone who may not be already aware of precisely what this section sets out to do, it sets out to put a person in a position in which he can be convicted of an offence because of something said by another person. That may be hedged round with what the Minister calls protections but, nevertheless, that is the kernel of the offence and the Minister can quote from penal codes in every country in the world but, as far as we are concerned, this is a completely new concept in the criminal law of this country because it introduces the principle of vicarious criminal liability. To my mind, that is outrageous.

However, while it is distressing, it is not surprising to see this present Government bringing forward such a piece of legislation because its conduct from the point of view of democracy and from the point of view of the rule of law over the past 12 months has been utterly deplorable. The rule of law is, as I say, the cornerstone of our democracy. It is the guarantee of our freedom. It is something imported into our constitutional law from the constitutional practice and theory of Great Britain. There is the difference that we have a written Constitution while in Britain there is none. The idea of the rule of law is a well-known rule. Initially it meant several specific things: it meant that no citizen would be tried except before the properly constituted courts; it meant that no citizen would get preference before the law. It has been expanded over the years to mean more than that. It means now that the law will never be harsh and will never seek to be unfair, will never seek to be inequitable and will at all times respect the spirit of democracy, respect truth and the full meaning of the idea of freedom and will never be used, or abused, to interfere with rights. In particular, it means that the law will never seek to convict one person for the action of another. That is precisely what this section sets out to do. This regrettably infringes, and infringes seriously, a very important principle in our society. It is not, however, surprising to see this bad principle being proposed by this Government because over the last year they have shown a disregard for, or an ignorance of, the idea of the rule of law and the idea of parliamentary democracy.

We have a written Constitution and one of the things written into that, borrowed from the unwritten constitution of Great Britain, is collective Cabinet responsibility. We saw a most flagrant breach of that last year when that principle was flouted and ignored. We then saw Parliament itself being used—the correct word is "abused"—when the Taoiseach availed of this institution to impose party discipline on some dissident members of his own party. These two instances showed a startling disregard for what freedom, democracy, parliament and constitution ought to mean in the fullest sense.

Deputies

Hear, hear.

The alternative to the system we have is a Fascist, totalitarian system. If this Bill is scraped we see Fascism in all its ugliness between the lines of this outrageous piece of legislation and the mentality that proposes it is the Gestapo mentality.

Deputies

Hear, hear.

Quite right.

It seeks to bring 1984 right on top of us by making the law such that I can be sent to jail for something somebody else does. If that is not bringing on top of us a dangerous, disturbing and frightening situation, I do not know what is. It is disstressing to see a democratically elected government so reneging on its responsibilities, so ignorant of its sacred duty as to introduce this type of repressive, jackboot legislation. It makes hollow the claims of the Taoiseach that he and his party are the true repository of all things republican, of all things for which men gave their lives so that we might be free. I suggest to the Minister that he and his party, in putting forward this legislation, have betrayed those who gave their lives that we might be free from British imperialism. This type of legislation is precisely the legislation used by the British Government when they had us in chains to try to repress the Irish people. Here we have a manifestation of that same mentality 50 years after we won our freedom and by the very people who claim pride in the traditions that won that freedom.

This is repressive legislation because it seeks to stamp out something which springs from a genuine protest against a social evil. The Minister is flying in the face of Irish history if he thinks that this repressive legislation will be effective. One has only to look back over the history of British legislation in the latter half of the 19th century and the beginning of this to see that the Statute Book is bursting with coercion Acts and repressive and unjust legislation, none of which was effective in securing the end it was intended to attain. This Bill will go the same way. Instead of repressing an alleged social evil it will only encourage that spirit which is part of the characteristic of the Irish race, that spirit of protest, when it is felt there is cause for protest. That spirit will not be stifled by any piece of imperialistic legislation.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

I was making the point that this is repressive, jackboot legislation. It is intended to stamp out protest in Ireland. The Minister has only to look at similar legislation in our history to see how singularly ineffective it has been. Instead of bringing calm and peace in our society it has only aggravated the subject matter of the protest. We must also consider in the case of repressive legislation of this magnitude and novelty the principle that no law should be passed to create new crimes unless there is a glaring, obvious, widespread social evil to be controlled. I suggest to the Minister that such an evil does not exist, certainly no evil to justify the principle of vicarious criminal liability introduced by section 4.

Deputy O'Higgins says that all this law is there already —that there is nothing new in it.

Section 4 is not there already. For this vicarious criminal liability I can be sent to jail.

That is the Deputy's interpretation.

I am prepared to bet with the Minister that my interpretation is correct, in spite of advice he may have received. I do not know who is responsible for the tone of this Bill, its arrogance, its totalitarian tenor, but if the people giving the advice are the people responsible for its fascist hue I should not like to accept their advice. This Bill flies in the face of the principle that new crimes should not be put on the Statute Book unless there is a glaring, obvious, widespread social evil. I suggest that the disturbances that have taken place at which the Bill is aimed do not fall into that category. It is obnoxious as amended by the Minister just as much as it was before he amended it because as it is now amended, subsection (3) states that a person shall be deemed to have consented to the making of a statement if certain things make it appear to the court that he was a member of a group, "unless he gives an adequate explanation". Again, the Minister has not given any precedent for that and I do not think he will find one.

I gave two on the last occasion.

I wish the Minister would let me finish. If a person is charged with an offence I read the section to mean that the prosecution states that a statement under subsection (1) has been made and that the person charged has consented to that statement and thereby committed an offence. The prosecution then proves that that person consented to that statement by putting before the court certain circumstances, including the constitution and the rules of the group on whose behalf the statement was made and the extent of the defendant's participation in the group—informer's evidence. The court can then find that there was consent to the making of the statement and can say to the defendant: "Having heard that you are a member of the group and having heard what their constitution consists of and having heard that a statement was made under subsection (1) on behalf of the group, I will convict you unless you have an adequate explanation."

Here is a novel legal principle. The defendant in that situation is faced with a tribunal which, having heard evidence from members of the Garda, has then to decide to convict the defendant on its subjective dealing with whatever explanation the defendant puts forward. I submit to the Minister that it is bad law, quite contrary to all principles of our legal system, that there should be a statute under which a person must say: "If I do this or if I do not do that I will be convicted." That test must be applied because the person must ask himself: "Will the explanation I give be regarded as adequate?" It is quite wrong that the adequacy of the explanation should be exclusively within the decision of the presiding judge.

I referred the last day to a school of jurisprudence which deals with the sources of law, with the influence which judicial decisions has as a source of law, and I pointed out that that factor can be affected by subjective feelings of the presiding judge. That school of jurisprudence is known jocosely as the digestive school. That may be funny in a lecture room but in a court of the land it is not a bit funny for the defendant, the adequacy of whose explanation may depend on the humour of the person on the bench, whose humour, in turn, may be determined by the state of his digestion. That is the type of law the Minister is asking us to put on the Statute Book. I described it as abnoxious because it is repressive, fascist, totalitarian and this is the most abnoxious section of all.

I do not have legal training, unlike the Minister and the last speaker and, therefore, I am not capable of entering legal arguments in any detail. However, one can have valid opinions on this Bill without a legal training because it is perfectly obvious, even on a casual perusal, that the Minister's objective is not legal at all but political and not simply generally political but party political. In other words, what is happening is that the legal profession, of which the Minister is a member as well as being a Member of this House, is being prostituted for Fianna Fáil Party political purpose of the most degraded sort; and public servants who are in the Department of Justice and who are paid for by all the public are being prostituted in the same scandalous. way.

When a party starts to rot the rotting is all of a piece. The rotting expresses itself in everything they do. We have seen that rotting going on in public for the last two years. In most species of living things decay takes place after death; in the Fianna Fáil party putrefaction is taking place before death, but the smell is what one expects from putrefaction and the smell of this Bill is an offence. Surely even the members of the Fianna Fáil Party who retain some honour, some sense of the rule of law, some sense of the republican vitality and determination that gave their party reality four decades ago——

I see in the paper that you are opposing your own Leader——

The interesting interjection indicates the level of political thought of the Deputy who, when faced with something that is a profound scandal to himself, which ought to give him sleepless nights when he has to trot up the steps to rubber stamp it in a servile way, is reduced to a trivial interjection to try to alter the subject completely. It is an obvious and simple tactic to try to change the subject. As far as I am concerned, it is simply a confession of bankruptcy by the people sitting on those benches——

Would the Deputy come back to the section as amended?

I was commenting on the obvious moral difficulty that this Bill must present even to the honest members of Fianna Fáil as indicated by the level of the interjections. This, of course, is a prostitution of Parliament, a prostitution of a political party, a prostitution of the law, and a prostitution of the public service for the sake of trying to do damage to a small group of people, principally to do damage to the Sinn Féin Party and the Dublin Housing Action Committee.

Let us look at the central idea that is enshrined in section 4, even in section 4 as amended. The central idea is that, if somebody in an organisation to which one belongs says something which would be contrary to this law if it were passed, all of the members of that organisation can be held responsible at law unless they specifically repudiate his statement. That is fine. Let us see how this new provision, this prostitution of law, would look if it were applied in a slightly different area. Let us say we are not applying it to the matter of people trying to get protection from the elements, trying to provide their families with a roof and enough warmth, not to have children sick. Let us say that this principle of guilt by the failure to repudiate were to apply to a conspiracy to import arms into the country.

Let us not get away from the amendment.

It is a very appropriate analogy.

I am arguing that if the basic idea in section 4 is valid in this Bill, it should be valid for every piece of legislation, and by taking examples from other areas of legislation I am seeking to establish that the basic idea in section 4 is not only, as the last speaker said, Fascist, jackboot, authoritarian, but it is also party political because it is also using the might and the dignity of the law to crack a very small nut in a vindictive way. However, if this were to be extended, if the principle operated for other kinds of law, then all the members of the party in government who are going to do their servile, rubber-stamp thing when the moment comes and toddle up the steps and validate it, would themselves all be guilty of what members of their own party may have done if they did it in regard to arms importation, in regard to various other illegal activities.

Though I am not a lawyer, I think the natural sense of what is honourable and just to do is in the possession of everyone. If the principle is valid, if people act to provide themselves and their families with shelter, then it is also valid across the whole spectrum of legislation. You cannot pick out this sort of guilt by association because you are goaded by the Dublin Housing Action Committee. You cannot make special bits of law to suit this city this year or last year in regard to one little organisation. What is sauce for the goose is sauce for the gander.

I believe next month they will deal with Women's Lib. Poor old Mary Kenny will be for the high jump.

The members of the Government Party have so disgraced themselves by rubber-stamp voting that we are past the stage where any appeal to their honour or their conscience or their sense of Irish history or their sense of the dignity of the legal profession is worth a damn. However, there are some members of the party to whom one might conceivably appeal. If those people who are generally referred to as dissidents, who uphold republican principles, wish to uphold the standard of law which they themselves may dearly need, then rather than putting a halter around their own necks they will be showing a little wit when the vote comes if they vote with the Labour Party and the Fine Gael Party. If they want an issue to tumble a putrefying government, then this is a moral issue on which it is well worth doing it.

This is a law which is aimed at coercing people into becoming turncoats. However fast one runs away from republicanism and from the traditions of the country, one ought at least to remember a little and one ought to have enough insight into what motivates Irish people to know that if you try to compel a man by law to renounce what has been said by another member of the organisation to which he belongs, if you try to compel him to turn his coat by law, then even if he disagrees with the spokesman of that party he will feel in honour bound not to repudiate what has been said.

This is legislation for disruption. It is legislation to try to use the dignity of the law and the dignity of Parliament on a tiny, trivial subject. There is no need for any other legislation, neither section 4 nor the Bill as a whole. Things could be perfectly simply solved by providing the accommodation that the protesters need. They do not enter for fun. They do not enter for kicks; they enter out of need. The way to prevent such a situation is to provide accommodation. The solution is to solve the social problem but not, in the process, to degrade the law and to make the crushing of a small organisation the preoccupation of this Parliament.

All our experience is that the passing of this legislation will have the effect opposite to that which seems to be intended. I say "seems to" because, of course, it is possible that the engendering of conflict and of social chaos is at least partially the motive in the introduction of law like this for the reason that I have said: it will force people to do the opposite to what it seems to want to make them do. If you say: "You must repudiate the spokesman of an organisation with which you feel you can identify and in which you feel pride" and if you try by law to compel that repudiation you will have the opposite effect. It is therefore not just all the things that Deputy Cooney said it was—fascist, jackboot—it is also trivial, it is party political, it is a degradation of Parliament. As well as that, as we have come to expect in recent years, it is stupid in the sense that it will have the effect opposite to the one attempted.

Therefore, from every conceivable point of view it is a pitiful waste of parliamentary time to introduce this Bill. It is a scandal that we should have to fight against it, to hurl back the thoroughly base reasons which motivated its introduction. We have no option but to make this fight not because the Bill itself matters a damn but because the principles, the degradation, that the Government are bringing into Parliament are so important.

This country would be better off it the whole thing were to be scrapped, not simply amended section by section. Sometimes it is strong to admit a mistake. Sometimes it is strong to appear weak. This is a moment when a little humility, a little weakness on the part of the Government would be seen by everyone to be strength—the courage to admit a mistake, the courage to admit an action out of vindictiveness at a time of anger. One hopes that the vindictiveness has now passed, that the anger has passed, that with cooler thoughts after the feelings of vindictiveness, people realise, as indeed the public servants must realise, and as many people in the Fianna Fáil Party must realise what a shameful thing this is.

It would be no disgrace now to drop the whole thing. Fianna Fáil members may not want at this critical moment in the affairs of their party a public defeat on a Bill but they do have the power to go privately, if they wish, and compel its withdrawal. It seems to me that particularly those who had the courage to rebel once or twice on recent issues, notably on the issue of the dole, have an even greater moral responsibility to do that now. Nobody will require them to do it in public. Nobody will require confrontation. They can do this quietly. Indeed, if they are astute they will realise that this involves their own future as well as the future of the Dublin Housing Action Committee and the Sinn Féin organisations. They would be wise were it pushed to a vote to side with the Opposition and pull down the Government on this but in fact it is not necessary to do so should they go quietly and compel the withdrawal of the entire Bill.

(Cavan): The Minister when he last spoke made something in the nature of a Second Reading Speech. He made reference to statements made by me on the Prisons Bill and on the Second Reading of this Bill.

In so far as I made any reference to illegal activities on the Prisons Bill I was merely restating the policy of this Party as it is well known, the policy of upholding the rule of law whether in Government or in Opposition and I was appealing to the Minister and to his Government to encourage people to uphold the rule of law by word and by example particularly.

I regret that the Minister has seen fit to introduce section 4 of this Bill. I believe that if the Governments over the last years had been running this country in a democratic manner and had been listening to lawful protests this Bill would not be necessary nor any part of it. We had the extraordinary performance in regard to the Hume Street houses. The Government refused to listen to peaceful protest, to editorial comment, to appeals in this House, but when the people concerned adopted what the Government regarded as illegal methods then the Government caved in; they had second thoughts and they yielded just as they have yielded on several occasions in the past couple of years.

That is the way they have been running this country over the years and that is what has the Government party in the mess they are in at present and that is what has them introducing this Bill to try to convince the people that they are the great upholders of law and order when in fact they are letting the country slip and slide anyway it likes.

On the Second Reading of this Bill I made my position and the position of this party perfectly clear. I said at column 85 of Volume 251, No. 1, of the Official Report:

So far as the general policy of the Bill is concerned, I and this party believe in the rights of individuals, not only in the rights of landlords, but in the rights of the ordinary man who occupies a house or land whether he occupies it as owner or as tenant, but this Bill will need a lot of thought and consideration before this House could pass it. Certain portions of it seem to me dangerous and quite unnecessary.

I then went on to the part of the Bill which we are dealing with now, section 4, and I stated at column 87:

I say that section 4 is an unnecessary and dangerous section and I intend to oppose itin toto on Committee Stage.

There is nothing inconsistent about that. There is nothing inconsistent about my attitude to this Bill on the Second Stage and my attitude here today. I am doing what I said I would do on the 27th January last. I am opposing section 4 of this Bill. I think it is quite unnecessary and dangerous.

The Minister thought fit to refer to my remarks on 27th January last or at least to some of them. He would have been better employed if he had dealt, as we are now in Committee, with some of the questions which I put to him on the Second Stage in a general way to give him an opportunity of considering them in relation to section 4 which we are now dealing with as amended. On that occasion I pointed out that there was no definition in this Bill of a group of persons. I said at column 86:

What is a group of persons? Where is the definition of "a group of persons" in this Bill? It would be very difficult to define a group. Are they to be associated under some set of rules, under a constitution? Are they to be incorporated or unincorporated? Are they to be some people who meet socially?

I posed those questions to the Minister and the Committee Stage of a Bill is the Stage on which questions like that are answered and not an occasion on which a general discussion takes place.

I repeat those queries to the Minister now. I ask him when he next speaks to define a "group" and to say how he thinks the courts will define it, or how he thinks the courts should define it, and what guidance he intends to give the courts. There are many groups of people in this country. There are social groups; there are political groups; there are athletic groups; there are numerous other groups. How many people constitute a group?

This is a loosely drawn section, a bad section. The Minister says he is using the word "encourage" because he thinks it is an ordinary word that is helpful and easy to understand. I think there is nothing more dangerous than the use of ordinary words in statutes, and particularly in criminal statutes. The Minister or his predecessor in one of the Licensing Acts in 1960 or 1962 used the words "special event". A district justice down the country applied one interpretation to the words "special event", the same interpretation as was applied by the Minister's Department and the Attorney General and cattle marts all over the country were given licences. A High Court judge applied a different interpretation from that of the Minister and the district justice, and three Supreme Court judges upheld the High Court judge although the Minister and the Attorney General were represented in the High Court and the Supreme Court to say they were quite satisfied with the interpretation given by the district justice. Those were ordinary words but they were eventually thrashed out in the Supreme Court by reference to dictionaries.

The liberty of an individual should not depend on a dictionary definition of a word. When we are passing legislation here to deprive people of their liberty and to create criminal offences we should define the words we are using. In relation to this section I invite the Minister to define the word "group". The next word I should like him to define in relation to this section is the word "encourage". That is another vague word. It is defined in some dictionaries as "to hearten, to cheer, to inspirit, to make bold, urge, further or promote". Those are gloriously vague words.

If the editor of a newspaper, in relation to what the Minister would call forcible entry or forcible possession, were to write that while the actions of these people could not be condoned it was easy to understand them in view of the shocking housing shortage, surely that would be heartening these people, it would be cheering them, it would be giving them some spirit, and he could be guilty of an offence. I will be accused of being political now but if, as a result of the editorial in today'sIrish Press slamming the Minister for Education for his new proposals about the management of the secondary schools, the editor were held to be encouraging people to go in and squat in these schools to make sure that they were not managed in that way, would he be hauled before the courts and be found guilty of an offence?

We are dealing here with a piece of criminal legislation which will be applied, if it is applied at all, in an emotional atmosphere and in emotional circumstances. To date, the first case in which forcible entry took place— and I want to say that I do not agree with forcible entry; I have made that clear at all times—was in the circumstance of a housing shortage when a man and his family found themselves without a house and considered that they were entitled to go and get themselves a house. That is something about which people could feel very strongly and might innocently speak very strongly about and, as a result, they might be held to be giving good cheer to the people in the house or to be heartening them, or inspiriting them, or encouraging them, and they would be guilty of an offence.

The next case of forcible entry was in completely different social strata. This was a question of squatting in the Hume Street houses to vindicate a belief or a point of view that these houses should be preserved for posterity, a view which after years the Government accepted and upheld. Is it any wonder that people would feel strongly about that, and rightly so, and speak strongly about it? Yet they will be charged with an offence. The Minister talks aboutmens re which is thrown in as an explanation for everything. In every legal discussion when a man is cornered he turns to the defence of mens re.

Under this section as it is now drafted, I say these people could be guilty of an offence if they said that all methods should be used to preserve those houses for posterity and that once they were pulled down they could never be rebuilt, a perfectly logical argument to put forward. Once you pull down a house and build some modern monstrosity in its place, the house is gone. Supposing somebody made that cogent argument in a newspaper or on a platform, surely under the section he would be guilty of an offence.

The other field in which we had these protests is another very emotional field: the claim to the right of Irish people to fish Irish waters and to catch fish without having to get the permission of foreign landlords. That is a field about which Irish people have felt very strongly all down the years. People might think, do think and have thought in the past, that the people who exercised those rights even by force were doing right. If they sympathised with them, under this section they could be guilty of an offence.

This section is totally unnecessary for the implementation of reasonable sections 2 and 3 of the Bill. A perfectly respectable organisation might like to conduct its business in private. There are such organisations, some of them absolutely respectable and some of them not so respectable, who believe in conducting their business in private. Supposing some member of that defined organisation goes out and makes a statement which is contrary to subsection (2) of subsection (4), in order to prove himself innocent a member of that organisation might have to produce the minutes of the organisation. Would the Minister like it if all the minutes of the National Executive of the Fianna Fáil Party over the past 12 months had to be hawked up and published and brought into court in order to show that so-and-so voted against what another member was saying? The Minister may say that that is absurd but that is the sort of absurdity he is legislating for and the sort of absurdity to which we are objecting.

On Second Stage I said that section 4 was totally unnecessary I considered it totally unnecessary when I first read it. It would be very difficult to enforce it even as it is. There is no reason why decent people should be dragged into court to exonerate themselves by going into the witness box because of an absurd piece of legislation like this. I believe that if this Bill were being drafted now it would not contain this section. The Minister put it in and published it several months ago and now feels that he is obliged to stand over it just as the Criminal Justice Bill was introduced by his predecessor and has now been put into cold storage indefinitely. He would be well advised to do the same with this. On several occasions in the past 12 months the Government have taken hasty action and have gone back on it.

It is not alone the Opposition Parties who are against this section; the national newspapers seem to be as one in being very much against it. I have found in the recent past that when the national newspapers come out very strongly about something the Government give in, as they did in regard to the dole mess or mistake or call it what you like. They simply could not stand up to the force of public opinion. Thinking people who cannot be regarded as irresponsible, who have a stake in the country and who have always believed in the rule of law, either in power or out of power, believe that section 4, either amended or as it is, is dangerous, unnecessary and should be dropped.

The Minister made considerable play of the fact that I on Second Stage specifically referred to these defences that are open to an accused person in paragraphs (3) (a), (b) and (c). I pointed out the difficulties a person would have to surmount to show that he was not guilty under this section. I was putting forward that argument then, as the Minister well knows, against the entire section. I said that section 4, subsections (1) and (2) were outrageous and I was ridiculing the defences offered in subsection (3). The Minister knows that that was the case I was making and there is no point in saying that he did not. Indeed, he fully appreciated that because he tried to improve it but with the best will in the world neither the Minister nor his advisers could amend the section because it is an outrageous section. I give the Minister credit for making an effort to amend this but the second stage of this section is much worse than the first because as it was then I suppose that if a person went to the extremes I was talking about, buying newspaper space or going around in a van with a loudspeaker telling all and sundry that he did not agree with his colleagues, then if he went into court he would have some sort of an argument that he had done everything that he could to undo this. It would be unreasonable to ask him to do that, but at least he would have done something tangible to which he could point. That is the case I would make, that it was absurd to ask this type of law-abiding citizen to indulge in this sort of antic to get himself out of this terrible section. Here now it will be left to the mercy of some district justice or judge to decide whether an adequate explanation has been given or not. He is to be left in mid-air and if the atmosphere surrounding the alleged defence is heated enough at the time it might very well be that no explanation would be regarded as adequate.

Why must Minister after Minister introduce this sort of section in a Bill? And then we are referred to New York, Chicago and all around the world, but our legal system has never been patterned on those legal systems. Our legal system has been operated or has tried to operate in recent times on common sense. Then the Minister will go away back into distant ages and get another section forgetting that we are in 1971, forgetting that in the past ten years we have abolished the death penalty, forgetting that 21 years was once regarded as a life sentence but in the last few years the average life sentence has worked out at about six years. The Minister seems to be going backwards instead of forwards. I find it necessary to say these things at some length because the Minister attempted to misrepresent me and I refuse to be misrepresented. My position is perfectly clear. I appealed to the Minister on several occasions to give a lead to the country by the way he enforces the law which he has and which he is not doing. In the country the Garda Síochána in several spheres of very serious criminal activity do not know from day to day where they stand, how to act or what to do——

That is quite wrong and the Deputy knows it.

(Cavan): It is quite right. When they see illegal activities in their area they report back to their highest authority and they are told to keep an eye on them and to report back again. They do not know where they are.

If they see illegal activities in their area they arrest people, as it is open to them to do and then report them back.

Go down to Cork—

(Cavan): The Minister knows that is not so. If they did that God knows what would happen——

Taca members down there had access to Garda records. That is the kind of thing with which the guards have to put up.

(Cavan): If the Minister is determined to steam-roll this section through the House he should define “encourage,” which obviously means something different from “advocate”. It is vague enough to mean anything. Will he define “a group” for us? Does he mean that this section is to be so wide that it can be used against anybody or anything if the Government or the Minister of the day thinks that it should be? It is a dangerous section and it is slovenly drafted. When the section was originally drafted the Minister conceded that it needed amendment but the amendment which he has put into it is not satisfactory. At any rate, as long as subsections (1) and (2) are retained, I do not care what he does with subsection (3) because I will oppose it.

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——

The Deputy is getting far away from the section.

I am concluding on this point: out of a total of about 70,000 local authority dwellings in the Greater Dublin area there are about 120 which are illegally occupied, mostly by subtenants who stayed on in houses. I have no doubt that without this legislation the corporation could resolve the problem. Again in relation to section 4 I want to record our total opposition to the provision. If this Bill goes through, as far as we are concerned in the Labour Party, it is all the more reason why we should strive as a political party to achieve office in order to be able to repeal this legislation. We believe this is an elementary commitment which we, as a responsible political party, should make to the people, on whom this repressive legislation is being foisted. It is legislation which is a disgrace to the republican traditions of this House, and it is an everlasting disgrace to the Fianna Fáil Party who have deteriorated to such a level as even to contemplate its introduction.

In his last statement just now the Minister for Justice said, and I quote:

Section 4 does not in any way affect or curtail freedom of speech to any degree greater than the existing common law offence of incitement which has existed for a very long period.

Let us assume that the Minister actually means that, that he is sincere in saying it. Even so, the fact that the Minister has said this here in a debate has, of course, no force in law; it is just anobiter dictum made by a Minister here, and what is important is the actual wording of the Bill which we are asked to pass. That wording as we have it now does not bear out what he says, because the words “encourages or advocates” in the section are different from the word “incites”. It has been pointed out that the word “incitement” which is of venerable usage in law, has acquired meanings, and “meanings” means restrictive meanings, not just what anyone thinks it ought to mean. These words here have acquired no such technical penumbra and are not so limited. Therefore, if the Minister is sincere about not wanting to curtail or affect freedom of speech, if he means this provision is not curtailing freedom of speech any more than the common law offence of incitement, he can very rapidly make that law, first of all, by amending his own section to read: “a person who incites to the commission of an offence”. If that is what it means why can he not say so?

The only reason we have been given for the present wording is that the Minister objects to these archaic legal terms. He does not object to the Petty Sessions Act of 1861 or whatever it was. He does not object to ancient statutes in themselves, but for some reason he objects to their wording. According to the only reason we have been given here, which is not necessarily the correct reason, his sole concern in all this is the modernisation of our usage so that the public may plainly understand from the words used exactly what is meant.

If we accept that, again assuming that the Minister is sincere in not wanting to curtail freedom of speech, why could we not have a definition that the words "encourages or advocates" in section 4 (1) mean what in common law the word "incites" means and no more? The Minister is represented here at the moment. I should like to put those two alternative suggestions to him and to ask for a reply on them because this whole section really hinges on the words "encourages or advocates" in section 4 (1).

It is not enough for the Minister to give us a personal assurance that he does not want to affect or curtail freedom of speech because it is clear that he is, in some way, affecting freedom of speech and presumably curtailing it by the language he is using. The fact is that the older technical vocabulary which he cites: "inciting, aiding and abetting, counselling or procuring the commission of a crime" has acquired, through court decisions, a certain set of meanings. "Encourages or advocates", the two together, are distinctly wider. One might argue that "advocating" the commission of an offence here is very closely the same as "inciting" it. That could reasonably be argued but the word "encouraging" is very much wider indeed. "Inciting" as it is ordinarily used has the fairly precise meaning of wanting someone to commit an offence and working on him in such a way that he does. I do not think people are all that often charged nowadays for incitement except where the case is very clear and very flagrant. I think courts and law enforcement officers have, on the whole, tended to respect the ordinary freedom of comment to a great extent. This particular limitation casts a doubt of unknown proportions on freedom of comment.

The Minister in the statements he made just now said that Deputy Dr. Browne tried to give an impression that the section was in some way aimed at newspapers and that this most certainly is not true. We know that the ways in which views are most often encouraged and most effectively encouraged or advocated these days are through the media and still in particular through the Press so that any warning that the present limits of choice on "encouraging or advocating" are to be restricted must affect the Press. We must also assume that the Minister had this in mind because we know the kind of groups he has been dealing with have been "encouraging or advocating" what would become an offence under this section and he certainly has in mind trimming their freedom of speech.

He also revealed in earlier remarks of his own that he did have newspapers in mind, that he was aiming at them. He named them when he was talking about the general concept of "incitement" which he makes identical, though I think neither ordinary usage nor the law would, with his "encourages or advocates." He said

One may under our law incite persons generally as in a newspaper article and the persons incited need not be known.

I am quoting from the Official Report, Volume 254, No. 2, of 26th May, 1971. He said at column 229:

I am bringing it in in order that we will have a modern statute which will set out clearly in terms which cannot confuse anybody what precisely the position is and what can or cannot be done.

Notice here the confusion which the Minister is introducing by using words which have a wide span of meaning in ordinary speech instead of terms which have precise legal definitions built up in case law. He is trying to put over to the public the idea that he is simplifying things and making things easy for them. It is quite the other way around. The protections of people's liberties lie in the more precise definitions and the Minister, who makes so much display on occasions of his legal learning, should not be allowed to get away with this distinctly demagogic argument here. He goes on:

In other words the rights of a person are clearly defined——

Where?

——and he is put on clear notice that if he infringes certain things he is guilty of an offence.

He is not put on clear notice of anything because we do not know how these words "encourages or advocates," particularly "encourages", are to be interpreted. We all know that judges construe things in different manners and in different times and loose and vague language of this kind is a danger to public liberty particularly in times of excitement. The Minister goes on:

There is the horrified suggestion that newspapers, for example, might well find themselves in difficulty with the law under this section if they were to advocate the commission of a criminal offence.

That phrase "horrified suggestion" is designed to cast contempt on any concern for the liberty of the Press or further encroachment and intrusion on the liberty of the Press. He continues:

There is the implication in this horrified suggestion that this is something new, but it most certainly is not new. Newspapers are not any more immune from the law of the land than any other individual or company——

Nobody, of course, has claimed that they are. The point is that this will be an extension of the law of the land. The Parliament presumably would have the recognised right under law and subject to the Constitution to introduce very serious further intrusions on the liberty of the Press. The point is whether in terms of public policy this is warranted or whether there is any justification for it.

Notice the contradiction between this and what he has said just now—that section 4 does not in any way affect or curtail freedom of speech to any degree greater than the existing common law offence of incitement and his denial of the idea that the section was in some way aimed at the newspapers.

How can the Minister seriously maintain that this section is not in some way aimed at the newspapers? Is a newspaper which writes an article encouraging or advocating the commission of an offence not to be proceeded against and if they are to be proceeded against what is the meaning of saying that the law is not aimed at the newspapers? Of course, it is aimed at newspapers. Who does the Minister think he is fooling?

I should like to come back to the point of either amendment of the section to substitute "incites" for "encourages or advocates" or a clarification by definition or failing that let the Minister give us some reason other than his alleged concern for the modernisation of our vocabulary why he is using the words "encourages or advocates" instead of "incites" here and why he will not limit it by definition which seems to me to cover his quaint concern for our vocabulary or style.

All of us on this side of the House had more than very serious doubts and were strongly opposed to this section and this whole Bill before we heard the Minister but with every statement the Minister has made here, with every argument he has put forward, with every stylistic nuance that he has introduced, our concern has deepened. This section in particular can become, in certain conditions, a very grave and real threat to freedom of expression and freedom of comment here.

I find the most objectionable part of this section of the Bill is the deliberate confusion of the general motivation behind the formation of organisations or groups or conglomerations of people who get together for any purpose, the confusion of the idea that those of us in all parties over the years who have concerned ourselves with social matters of one kind or another, in varying degrees and to varying extents, should be lumped in together or related in our motivations to various criminal activities, conspiracies to murder, to rob or to steal and other activities which obviously have completely different objectives.

What does the Minister gain by this section? He talks about the subversive groups which he is aiming at, but is it not a fact that he will not touch the subversive groups or the quasi-political groups he talks about as being the target of this section? None of us in any of the parties who become involved in this sort of activity, or protest, or unemployment movement, or anti-emigration movement, or fish-in or family planning, the latest one, or women's lib, or whatever it may be, need be concerned and he is simply concerned to deal with these quasi-political groups or subversive activities. Has he not watched the developments in every country in the world over the years and throughout history, including the present unfortunate situation in the North of Ireland?

The last people to be affected by this section will be his allegedly subversive groups or quasi-political groups. The people whose liberties he will restrict and delimit are the democrats, the people who believe in democratic organisations of one kind or another. The people at whom he purports to aim this legislation will simply turn their attentions elsewhere. They will take action in other ways. There are so many precedents nowadays for the protest, the spectacular protest, that they will simply move away from squatting. There are many alternatives open to them at present, hi-jacking something or other, or kidnapping, or assassination, or dropping a bomb somewhere, or setting fire to some place. There are dozens of alternatives open to the subversive groups or the quasi-political groups on whom he says he is wasting the time of this House.

There are many other important matters on which this House could spend its time but instead of that we are debating this completely antidemocratic piece of legislation to which we in the Labour Party are violently opposed because it reduces a very important element in our lives here in Ireland. Whatever the many and grave defects there are in our society—and God knows I have probably listed them on more occasions than anybody else—we have had over the years the right of dissent, of stating a case in strong terms for or against a failing or defect in our society, of supporting those who share our views and criticising those who do not.

In this section the Minister is making inroads on this basic freedom, the basic right of the individual to dissent from other groups, from other political groups or from other persons within the group to which he wants to belong. The essential dynamic of the whole democratic process is the dynamic of debate. We are told that the Minister is concerned only with these people and that in order to deal with them we must have this section. There is no doubt in the world that this section will not deal with them. It will not inhibit their activities in the slightest but all the rest of us will have to suffer under this particular objectionable section which puts us all in fear of having to prove that the people with whom we work have views that we do not share and are ashamed of and dissent from.

We apologise for the fact that they hold them; we disown them; we disclaim them; we exculpate ourselves from any association with them or with anything they may have said: the whole demeaning, humiliating process of undermining the association between people who unite together in the broadest terms because they are like-minded and because they want to achieve certain objectives even though there may be differences on detail here and there. This broad principle is being assaulted in the most blatant way in this section.

Deputy Desmond showed that squatting is a negligible problem. It is a relatively unimportant problem in our society at present. None of us is justifying squatting at all in publicly owned houses. I personally disapprove of it and I have always said I do. I go even further. I disapproved of the principle of parents and children squatting simply because of the undesirable effects on both mother and child or children in such circumstances. I still believe that as a form of protest it is made only because of the Government's failure to provide houses for people. This is not the section or the evil for which the Bill is being introduced. The Bill is introduced in order to deal with a process of protests against a deficiency in the Government's activities. Section 4 is not the answer. Another 12,000 houses in Dublin is the answer. It is a fact that the Government are only not providing the houses but in order to attempt to conceal the magnitude of their failure they are attempting to reduce the effectiveness of any protest being made by the people who want to highlight their failure in regard to this very important problem.

I am astonished at the looseness of the phraseology of this amended section. I do not understand how a lawyer such as the Minister could defend the provisions of this section. The Minister has made no attempt to deal with Deputies' queries about the interpretation of the wording of this section. Under this section a district justice, in order to decide on the merits of a case, would have to consider the Constitution and the rules and the extent to which the defendant had participated in the activities of the group. It is outrageous to suggest that anybody could make sense of this clause and then we go on to talk about what is reasonable or unreasonable. "The extent to which the defendant had participated in the activities of the group"—how often did he attend their meetings? Had he paid the party or group subscription? Did he have a party card? Is he up to date? To what extent did he agree or disagree or dissent or take no part in the debate or discussion at which the decision was arrived at for which he now finds himself in court? Clearly the minutes of the meetings of every group, every organisation can be subjected to the scrutiny of the courts as the case goes from one court to another right up to the Supreme Court and then eventually for consideration of the constitutionality of the Bill. In what way does the person support the group? There is the question of the interpretation of the degree of support, whether a person simply attended a meeting, whether he applauded or did not applaud, whether he made a speech, whether he provided the flat in which they held their meetings or whether he simply gave moral support.

The Minister said that this was not aimed at the newspapers as I had suggested. I reassert that it is aimed at the newspapers and I would add that it is also aimed at television and radio coverage and the coverage of many journals which now take a much greater interest in social issues of one kind or another and who could, by advocating change, encourage decisions by individuals to take action of this kind. Why in section 4 (3) are the following words used: "may regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the part of the defendant in the absence of any adequate explanation by him"? Surely the Minister must be ashamed at the appalling woolliness of that provision and the near impossibility of its interpretation in anything like objective terms? The words usually used—I do not particularly want them used here— are "shall provide proof" or "shall regard proof" or "will regard proof". Why "may regard proof"? Then we have this completely wide and double ended word "adequate"—"adequate explanation". I wonder, as I said earlier on, if the Minister was impressed by the seriousness of the opposition to this section and has amended it in this way in order to make it completely unworkable. Would the Minister not reconsider the whole section and on Report Stage have the courage to accept that there are genuine protests, which are not simply obstructionist protests?

We are concerned that a very serious component of the very delicate fabric of the democratic process is under assault here, is under threat and that the people the Minister is going to penalise are those who share our belief in the democratic process. The provisions of the section will not have the slightest effect on those for whom the Minister said he designed this disreputable piece of legislation—his quasi-political groups and his subversive groups.

It must be obvious that the idea of squatting, of taking possession as a form of protest, has a distinguished lineage. I suppose the most honourable example of all can be seen in the front hall of Leinster House—the Proclamation, with the very distinguished names attached. The decision to equate with criminality the taking of forcible possession as a form of protest against an unjust government is just as ignoble and as contemptible as the precedent which the Minister did not mention—the precedent which was used against the men who signed the Proclamation.

Admittedly, the Minister is not going to shoot us for squatting or taking possession but it is dishonourable of him to relate this use of the different kinds of protest open to us—the boycott, the picket, strikes or squatting as a form of social protest—with some form of criminality. I never thought that I should find myself having to protest in this House against the introduction of such legislation. I would ask the Minister to withdraw the section.

Mr. J. Lenehan

I am not sure to what extent I agree with the section but as a man with some common sense I shall vote for it. However, the section can be rethought and restructured and there is no reason why a method cannot be found to solve the problems that have been raised by Deputies who have spoken.

A Bill such as this should not be necessary. Since the Act of Union we have managed without legislation of this kind and people have succeeded in retaining their property in the years since then. However, I could not stand idly by and accept that someone can walk into another man's property and take it over. If people can walk into a Georgian house today they can do the same tomorrow and take possession of a man's farm or public house. We must have some common sense in this matter.

How many of those who have been preaching here against this section would allow people to take over their property? All the nonsense that has been spoken here does not cut any ice with me. Although the Bill is not all I should like it to be, it is aimed at protecting private and public property. Its purpose is to give property owners title to their property and not to put them into the unhappy position whereby their property can be taken over by anyone who squats in it. It is easy for an Opposition party to oppose any proposal by the Government. The fact that I resigned from Fianna Fáil does not alter my mind on a matter such as this.

There is one major problem involved in section 4, namely, that football clubs and such groups could be in trouble. The Minister should look into this matter and on Report Stage let us know what changes he has made. So far as the two major parties are concerned, I think there would be general agreement on this point. I do not think either Fine Gael or Fianna Fáil want to see the situation whereby property can be taken over arbitrarily, as would be the case if we accepted some of the proposals that have been put before us this evening. I doubt if one Deputy who has spoken would go home to his wife and admit that he said what he did, because she would throw him out the door. I gave the tinkers good advice. I told them to go into the urban areas and into Achill and Valentia. If they go into Achill they will be in my constituency and I will be able to get their votes. That would be important. I hope, however, that they will not go into Achill and take over anybody's property. If 500 or 600 of them go into Achill there will be plenty of tourists there this year. If they go into Valentia they will have a good Blaney bridge, not a Bailey bridge, but I would not like them to take over other people's property there.

If Deputies voted conscientiously on this measure I doubt if they could really oppose it. A Bill like this has not become necessary until now. I suppose it is difficult for young people to accept that such a Bill is necessary. I think it is necessary judging by some of the things I have seen in this city and around the country, though not in my own constituency. However, I would ask the Minister to have another look at the wording of section 4.

Some speaker here said that if Fianna Fáil had built enough houses this kind of problem would not arise. Who the hell built houses except Fianna Fáil? Every house from Ballina to Blacksod was built by Fianna Fáil. If there are not enough houses in other parts of the country that is because the unfortunate people have very poor types of representation. The Telefís Éireann "Seven Days" team admitted that we had the best houses in Ireland in the west. They did not grow like mushrooms. Every damn house in it was built since 1933. Let no one have any doubt about that.

Just because I had a row with my party is no reason why I should not be honest and tell the truth. I am not sure that I agree entirely with section 4 but let no one be in any doubt as to how I will vote; I will vote with the Government.

I have two objections to the section, as amended. Even now there is in the section the proposition that a man is guilty until he proves his innocence; it is up to the defendant to prove that he did not commit a crime. This is contradictory to the long tradition of law in this country. Even Bloody Balfour, of unhappy memory, did not impose upon defendants this kind of thing. The Coercion Acts never required a man to prove his innocence.

I want to draw attention to a specific deficiency in the section. I hope the Parliamentary Secretary will make a note of the point because it is of considerable importance.

I took off my glasses in case I might not hear the Deputy properly.

The first subsection says that a person who encourages or advocates the commission of an offence shall be guilty of an offence. The new subsection says "where a statement in contravention of subsection (1) is made". How does one make a statement in contravention of subsection (1)? I have here the Concise Oxford Dictionary and it says "in contravention of" means violating. We have then a person making a statement violating subsection (1). How does one make a statement violating subsection (1)? Obviously one does so by discouraging somebody from doing something, not by encouraging. I believe the use of the word is all wrong. I believe the section is not properly drafted. It is as simple as that. "In contravention of" are specific words and, "in contravention of a specific subsection", means one is violating that subsection. The subsection says "a person who encourages or advocates the commission of an offence". How does one violate that subsection? One violates it by advocating the opposite or by stating something that is the opposite of it. This is what is now in the Bill.

I am not a lawyer and neither is the Parliamentary Secretary but there is the tag that where ignorance is bliss it is folly to be wise. It is no harm once in a while to bring in a person who is not legally minded but who has regard to the ordinary meaning of words. "Contravention" means "in violation of". Of course, the people who drafted this had other things in their minds than what I have in mind at the moment. I think of it by way of the ordinary meaning of words and that is the way the courts would construe it, and in that context this is not correct in any sense of the word.

It has become popular, and proper, to take the State to the Supreme Court on constitutional issues, and I think that if this goes to the Supreme Court there is no doubt as to how they will react. There is the principle that everybody is innocent until proved guilty and I think all that I have been speaking about is to tie up in a mass of verbiage the suggestion that people can be proved guilty by association, that they can be proved guilty unless they prove themselves innocent.

The last speaker said he would vote in favour of the Bill, apparently to rehabilitate himself with the party, but he did not speak too favourably of the Bill. This is not unusual nowadays. People vote for the party though they do not speak favourably of the party. That has become too obvious to be labouring it here. I am sorry the Minister is not here because I wanted him to answer the points I have made. A Deputy pointed out earlier that some difficulties of this sort were drawn to the Minister's attention but the Minister did not answer. Of course, the more errors in this type of Bill the better and anybody who went to the trouble of construing this would take the obvious meaning, the meaning I took from it. I looked through the larger dictionary in which there is an entire paragraph, but the volume is too heavy to bring in here. The Parliamentary Secretary may think that I have been making this point just to prolong the debate but he can get that out of his mind. It is a good point for the Committee Stage of a Bill and I should like to hear the Minister's answer.

(Cavan): I am interested in the point raised by Deputy O'Donovan and the House is indebted to him for bringing his analytical mind to bear on the words. There is a lot of force in what he has said. The draftsman says:

A person who encourages or advocates the commission of an offence shall be guilty of an offence.

Then the section goes on:

Where a statement in contravention of subsection (1) of this section is made by or on behalf of a group of persons....

Obviously, the draftsman, when drafting subsection (2), assumed that he had drafted subsection (1) something like this:

A person shall not encourage or advocate the commission of an offence under subsections (2) or (3) of this Act....

There is, however, the point that there is not one word in subsection (1) about a statement. Surely somebody could encourage or advocate the commission of a crime in a variety of ways without issuing a statement. He could, for instance, parade as a sandwich man, or he could encourage it by cheering the people on. Although there is not a word about a statement in subsection (1), when we come to subsection (2) the whole talk is about a statement. In my opinion, all this goes to show that this Bill was drafted in haste and in a fit of bad temper.

I believe this section is meaningless. I do not say subsection (1) is meaningless. The provision that a person who encourages the commission of an offence under subsections (2) and (3) is clear enough, but when we come to the next provision it seems to have been drafted on the assumption that subsection (1) was drafted otherwise, because in subsection (1) there is no reference to a statement good, bad or indifferent. I do not know whether publishing something in a newspaper is making a statement. Could it be argued that a person who walks up and down with a placard is making a statement? He could encourage or advocate people inside in a variety of ways other than by making a statement. I suggest that subsection (2) should have been drafted like this: "Where a person is charged with an offence under subsection (1),"et cetera.” That might make some sense.

I suggest that the Minister should have another look at the entire section. If he does I am sure he will come to the conclusion that there is a lot in what Deputy O'Donovan has said. For instance, I should like the Minister to tell us whether, if a person encourages the commission of an offence otherwise than by making a statement, he is guilty of an offence. The whole thing is a complete mess and it might be beneficial if the Minister devoted some time to dealing with these points than to dealing in a general way with the provisions as he has done to date.

Since the Minister is not here to answer the question put to him by Deputy O'Donovan and Deputy Fitzpatrick I might come in at this stage. I hope these questions are being communicated to the Minister and I hope we may hear his answers to them in due course. In the absence of an opportunity for him to do so at the moment I would like to refer to the Bill in general and this section, even as amended, in particular.

I would like to lend my voice to those of the Deputies on these benches who have expressed unalterable hostility to this section no matter how it were to be amended. There are probably few Deputies who have a better record of refusing to obstruct Government legislation for the sake of obstructing it, of not making lengthy speeches for the sake of making lengthy speeches than I. Even this morning in the closing stages of the Committee Stage of the Higher Education Bill I expressed a view from my side of the House that acceptable Government legislation should be permitted to pass rapidly. However, when one comes to a measure as blatantly unacceptable as this then I think one is entitled to use the time of the House to express the dissent and distaste which one feels for it in the most forcible terms, even if in so doing one takes up the time of the House. If in so doing one does take up the time of the House the fault is not one's own; it is the fault of the Government which has brought this strange, complex, unnecessary and potentially highly dangerous measure before the House at this moment in time.

I am not a journalist, I am not a lawyer, I am not competent to adjudicate specifically upon what constitutes journalistic freedom, although I have some small experience in that field. I am not able to tread my way through the legal intricacies of this Bill, if indeed anyone can. I would have thought that this debate on the Committee Stage had demonstrated that no one can with absolute certitude since the wording of the Bill is so loose. I know something about freedom as a valuable European concept and I know something about the very nicely drawn difficulties which attend upon the obligation to communicate with impartiality through the media. I have some experience in these two fields: the academic field of studying what one might call the philosophy of freedom and the practical journalistic field of endeavouring to sustain freedom of communication in the face of a government, any government, in the case of my experience this government or one of its previous models, which did not cherish the ideal of journalistic freedom or freedom of communications pretty highly.

The English philosopher John Stuart Mill in a memorable passage inAn Essay on Liberty, a work with which, judging by the Minister for Justice's demeanour in the time I have known him I doubt if he numbers amongst his library, once said, “All mankind hath not the right to silence one dissenter”—a marvellous statement which is as true today as it was when he made it in, as far as I recall, the 1860s. Today the dissenters, uncomfortable people, are the exponents of squatting, fish-ins and Women's Lib. It is fashionable to patronise these people. I am not saying they are invariably correct in either their aims or their tactics but perhaps the fullest volume of patronisation comes from the benches behind the Minister.

Today was Derby Day. I suppose it seemed very funny and unfeminine when that suffragette flung herself in front of the royal horse so many years ago. Yet there are not now many of us who would say that votes for women was a funny or irresponsible claim to make socially. Those people were similarly unpopular outcasts then. Perhaps the Minister and we on all these benches, enmeshed as we are in the ritual of this chamber, and the parliamentary club atmosphere which surrounds it, should ask ourselves occasionally if similarly we too are not wrong and the dissidents, the uncomfortable people, are not perhaps right. After all, they were right in 1916.

A section like this would have found itself very much at home in the Defence of the Realm Act. Is that what we are reduced to 50 years later? We imprison and silence not merely our actual protesters, some of whom may grate on our nerves, but also people who encourage or advocate the protests which they make, which under this Bill will become not merely civilly illegal as they are at the moment but criminally illegal.

"Encourage"—what is encourage? This point has been made before and it deserves to be made again. The Labour Party by its presence in this House I hope encourages a feeling of radical dissatisfaction with the society in which we live, encourages thesaeva indignatio of Swift—at least I hope it does. Does that make it guilty of a crime? Is it a crime to tell people that the context in which they live is intolerably unjust and unfair? Is it written down in Holy Writ by the Minister, the Taoiseach or anybody else that the only place in which people who have been inert and dissatisfied for 50 years—I blame all governments; I am not interested in who built most houses in 1930 or in 1935—can externalise their dissent is here in the national Parliament where they have so vainly tried to externalise it for so many years? Is it a crime to say to them that much of the time of the House is wasted and they look in vain to us to bring relief to their misery and their poverty in the ghettoes and slums which still persist, for example, in the city of Dublin? It is going to become a crime if this Bill becomes law as no doubt the Minister's docile majority buttressed in this instance by the friendly rhetoric of Deputy Lenehan will ensure that it does become law.

I wonder why these people feel it necessary to act in this forcible, slightly vulgar, ostentatious and to all of us perhaps inconvenient manner? We are asked to reassure them that there is in Parliament a channel of communication which renders their undignified escapades unnecessary. I wonder is that true? Would the Minister not accept the fact as just about everybody else does that the increasing by-passing of this Chamber is not a functioning of some original sin or malevolent Moscow-financed or Peking-financed malice on the part of these people, rather is it due to the fact that we here have demonstrated to them that wherever else they may look for really radical social change they need not look here for it? Would it not be better to blame ourselves for our inadequacies rather than penalise these people under this section for revolting against our inadequacies?

This Bill, furthermore, introduces a concept of guilt by association which I find intensely distasteful and one which survives even in its amended form, but perhaps less grotesquely and offensively than in its original form. To me the idea that a person who is a member of a group should be required in law publicly to dissociate himself from the actions of another member of that group at the risk of penal consequences if he does not do so is a denial of human dignity, quite frankly. We all look back with veneration on 1916. We in the Labour Party take pride also in looking back on 1913. At the end of the 1913 strike the strikers were asked to sign a form of capitulation to the effect that they, at least, were good, clean-living slaves of the then existing capitalist system and would have nothing to do with the late James Larkin. The spirit of that demand to the unfortunate tram workers of Dublin in 1913 runs right through this offensive section in my eyes. It brings back to me the evocation of poverty which you get in a book likeStrumpet City. It seems to me a terrible confession of failure, again, that in this day and age people should be asked to dissociate themselves from the more voluble, radical, articulate of their fellow-members of those quasi-political groups as the Minister calls them, if they are to preserve their legal freedom. I am not a lawyer but this is a concept which to me is unknown in the laws of decent communities but is very well known in instances, such as the one I cited of 1913, and in totalitarian societies where the principle of guilt by association has long existed.

This is a principle which is being resisted in all countries not so much, as Deputy Dr. Browne, as I understood him, correctly put it, by the violent men who are out to destroy society in any case and to whom this Bill will become a quite welcome incentive to still greater violence. This principle of guilt by association has rather been opposed by the liberals who cherish parliamentary institutions and the free making of decisions by discussion, voting and consent in a manner which the Minister alleges to cherish but does not in fact.

I think of America where the principle that you would not testify against your friend under the Smith Act was asserted with honour and dignity by people with much to lose, playwrights, cinema directors, a singer like Paul Robeson. Now this principle is to be breached here. By whom is it to be breached? To what group of men are we committing the powers of interpretation contained in this section? Let me give two simple illustrations of the potential dangers to which this Bill, if it becomes law, could leave us open at the hands of these people. The other day on a question on the National College of Art and the student agitations there the Minister for Education said to me—I am quoting him from memory—that the nature of the agitation showed a familiar pattern and that the same kind of people seemed to be involved over the past few years. When asked by me what he meant he said that the Deputy can work it out for himself or something like that. In other words, there is no problem in the National College of Art; there is just a gang of organised Maoists, Communists and such like—a simple solution to an educational problem.

Again, some years ago—I have mentioned this in the House before and I mention it again because I think it was despicable—a Member of the Upper House, a Member of the Minister for Justice's party, said of a certain priest who lectures in a college in this city that because of his political views——

What has this to do with this section?

I will explain it to the Minister in a second—because of his political views, and the manner in which he influenced his students, he was not fit to hold the post which he held and if the said Senator had anything to do with it he would cease to hold it. If this priest in a class says to his students that he advocates and encourages the commission of an offence under section 1 of this Bill is he liable to prosecution? Indeed, should we not go further? Do the rest of the Dominican Order not have to come in here on their hands and knees to the Minister for Justice and dissociate themselves from him? The Minister may think it is funny and he may think it is exaggerated but I do not.

The wording of this deplorable section frightens me no more than does the demeanour of the Government over the past two years who will be empowered to operate this section. The combination is terrifying. I do not know if the Minister ever goes to the pictures. I have already recommended to him a book, when he was not here, John Stuart Mill'sOn Liberty. I now want to recommend to him a Greek film called Z, also on liberty. I would like to place on record that in my view, and I am not an extremist or an alarmist, the implications of this section for liberty in this country are as frightening as the assumptions of arbitrary authority which took place in countries like Greece before the final deluge which absorbed liberty occurred.

Question put.
The Committee divided: Tá, 47; Níl, 40.

  • Aiken, Frank.
  • Andrews, David.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Brosnan, Seán.
  • Browne, Patrick.
  • Browne, Seán.
  • Carter, Frank.
  • Carty, Michael.
  • Colley, George.
  • Connolly, Gerard C.
  • Cowen, Bernard.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Davern, Noel.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Flanagan, Seán.
  • Foley, Desmond.
  • French, Seán.
  • Geoghegan, John.
  • Gibbons, James.
  • Gogan, Richard P.
  • Hilliard, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Lalor, Patrick J.
  • Lenehan, Joseph.
  • Lenihan, Brian.
  • Lynch, Celia.
  • Lynch, John.
  • McEllistrim, Thomas.
  • Meaney, Thomas.
  • Molloy, Robert.
  • Moore, Seán.
  • Noonan, Michael.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Des.
  • Sherwin, Seán.
  • Smith, Michael.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Wyse, Pearse.

Níl

  • Barry, Richard.
  • Belton, Luke.
  • Belton, Paddy.
  • Browne, Noel.
  • Burke, Joan.
  • Burton, Philip.
  • Cluskey, Frank.
  • Conlan, John F.
  • Coogan, Fintan.
  • Donnellan, John.
  • Enright, Thomas W.
  • Fitzpatrick, Tom (Cavan).
  • Fox, Billy.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Kavanagh, Liam.
  • Kenny, Henry.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Cott, Gerard.
  • Creed, Donal.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • McMahon, Lawrence.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Connell, John F.
  • O'Donnell, Tom.
  • O'Donovan, John.
  • O'Reilly, Paddy.
  • O'Sullivan, John L.
  • Pattison, Séamus.
  • Thornley, David.
  • Timmins, Godfrey.
Tellers:—Tá: Deputies Andrews an d Meaney; Níl: Deputies L'Estrange and Cluskey.
Question declared carried.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

I move that this section be deleted.

The Deputy cannot do that at this stage. He can oppose the section if he wishes.

Is it not a little premature to oppose the section before it is moved?

When the Chair calls a section, it is automatically moved.

I oppose this section on the grounds that it tends to shift the onus of proof in effect from the prosecution to the defendant. The kernel of this offence is ownership of the land or vehicle in question and what this section does is to make it unnecessary for the prosecution to prove ownership. Consequently, it says to the defendant: "We are not saying anything about ownership. It is up to you to prove ownership; otherwise you are guilty." That is putting the onus of proof on the defendant to show that he is guilty. It is not a question of shifting the evidential burden that the Minister referred to while speaking on section 1 because it is the substance of the burden of proof that is involved here. Let it not be directly involved but substantially that is what it means.

Furthermore, it seems to me that the section is now unnecessary by reason of the amendment to section 2. Paragraph (c) of section 2 provides for exemption for persons who enter in pursuance of abona fide claim of right. I expect that that subsection will be availed of in all of the cases arising under this Bill and that consequently the exemption contained in section 5 will not arise. Another point that occurs to me in relation to section 5 is the wording of it where it reads:

... every person whom he encouraged or attempted to encourage... 5785

I have been puzzled as to how one can attempt to encourage or how any person can prove that an attempt to encourage was made. I do not think there are any half measures about encouraging. One either encourages a person or does not encourage him. I fail to see how one could attempt to encourage. If one raised a hand in support at a meeting or if one voted yes or wrote an article or spoke, there would be substantial encouragement but there is no question of attempt to encourage involved. Therefore, it renders the section ridiculous to have these words in.

Another objection to the section is that in effect if it shifts the onus of proof with regard to ownership of land to the defendant and the defendant raises a question of title, every prosecution under this section becomes a title action. That is hardly intended but that is the result that will follow. If such a ridiculous result can follow, the section is bad and should be deleted.

Notice taken that 20 Members were not present. House counted and 20 Members being present.

This section is another of the more objectionable sections of this Bill in so far as that in effect it presumes the defendant to be guilty until he proves himself to be innocent or presumes a group of people to be guilty until they prove themselves innocent. It is an alien idea to introduce this into legislation. When we cannot give the world a lead in other respects, we should at least in our laws show the greatest amount of justice, fair play and civil rights. It is legislation which contains sections such as this particular one that holds us up to ridicule not only to our neighbouring countries but to the countries of the world.

Contained in this, as well as any of the criminal offences that have now been created, including the criminal offence contained in section 4 and emphasised by Deputy O'Donovan, is the criminal offence now of acting in contravention of subsection (1) of section 4. A person, in order to contravene that section, would have to refuse to encourage or advocate. If one refuses to encourage one commits an offence because one is acting in contravention. This shows how ridiculous section 5 is. It is not always possible, and a defendant in such circumstances may not always have the means, to prove innocence and, as in all laws, the onus of proof must lie with the prosecution. The onus should not be on the defendant to prove that he is innocent but that onus is being placed on him in this section. Therefore, we would oppose the section strongly and vote against it.

Where a person commits an offence of forcible entry or forcible occupation under section 2 or 3 of the Bill it will, in the overwhelming majority of cases, be in circumstances where he has no colour of right to the property entered or occupied. Since it would be unreasonable to the point of absurdity to require the prosecution to go through the tedious and possibly costly process of proving ownership that is not being challenged, section 5 provides that, unless the defendant satisfies the court that he has abona fide claim to ownership of the property, it will not be necessary for the prosecution to prove the ownership. In practice the effect of this section will be that the prosecution will not have to introduce evidence of ownership of property unless the defendant raises and puts in issue a real question of title. It should be observed that the onus placed on the defendant is minimal in that he is not required to prove ownership, merely to introduce a bona fide claim of title for which there is some colour or show of reason. Once he fulfils that obligation the onus is firmly on the prosecution to prove the ownership of the property as part of its case against him.

Deputy Pattison is completely mixed up about what the effect of this section is. He thinks it provides in some way that a man is guilty of one of these offences until he proves himself innocent. That is totally wrong. It is necessary for the prosecution in proving one of these offences under section 2, 3 or 4 to prove quite a variety of different component parts that would go to make up the offence. One of these, and one of the least important from the overall legal point of view, is the question of the ownership of the property. If the persons who occupy a premises forcibly or remain in forceful occupation of it dispute the ownership of the property, then the prosecution has to prove it. If they do not dispute it—and in 99 per cent of cases they do not—the prosecution does not have to prove that small component part of its entire case.

The only reason we have this provision here is not to make things any more difficult for the defendant but simply and solely to save the time, trouble and expense of getting up title deeds and going through what could be a lengthy and expensive process of proving the ownership when that is not disputed by anybody. In practically all business premises today the property would be mortgaged in some form or other. The title deeds would be either with the bank on deposit for safe-keeping or they would be with a building society, insurance company or some other such organisation.

It is in the interest of the defendant who wants a speedy trial that this provision is here. If he is arrested, say, this evening in a premises in Dublin, he could be tried in the morning in the district court, but if the prosecution had to send to England or send to a bank or somewhere else for the deeds of the property it would inevitably mean delay. It might well suit the defendant to get his case over and done with there and then. It it quite wrong, and I cannot reiterate this often enough, to say that there is any question of the onus of proof being put on the defendant. I do not know why people misread it in that way. It is simply a question of whether or not the prosecution has to require the owners to bring in the deeds and other documents. What this section provides is that if the ownership is not disputed it will not be necessary to produce the deeds. If the defendant says he wants the deeds brought in they will be brought in.

I cannot readily put my finger on the particular section but in the Housing Act, the Local Government Acts and other legislation there is a somewhat similar provision to the effect that where a local authority takes proceedings for possession of one of its dwellings—it happens every day of the week in connection with arrears of rent or something else—provided the city solicitor or whoever it is calls the rent collector to say that this is corporation property, the court accepts it at that. If the defendant makes a song and dance about it, which he never does, the city solicitor could ask for an adjournment for a week or two in order to get his deeds. The expense and trouble of that would be enormous. The result is that it is never done. It is a similar provision to the one here, and the fact that this procedure is never adopted does no harm to anybody.

(Cavan): As the Minister knows, the normal practice is that the State must prove its case, must discharge the onus of proof. For example, in a case under the Larceny Act the State must prove that goods have been stolen; the property must be identified and the owner must prove that the property is his, that he did not give anybody permission to take it. Then it must be proved that the defendant actually took it without the consent of the owner. Presumably if the Minister was revising the Larceny Act of 1916 now he would tidy it up a bit and put a clause into it that unless the accused person proved that he had a claim of ownership to the goods in question it would not be necessary——

He does not have to prove it. He makes the claim.

(Cavan): We shall come to that. The Minister would put a section into the Larceny Act of 1916 that unless the accused person was able to show that he had a bona fide claim to ownership—those are the exact words—there would be no onus on the State to produce evidence that he did not own it. The law at the moment is that the State must prove ownership, and, indeed, as the Minister knows, in cases of corporated companies it is necessary to produce the certificate of incorporation in court; many judges have asked for it. The Minister has stated that in the civil courts in cases for possession or for rent it is not necessary for the corporation or the local authority to prove ownership. Of course, it is not necessary because in all of these cases the tenant who is being ejected or who has a claim made for rent on him has signed a tenancy agreement, and the tenant is stopped by a long-established principle of law from disputing the ownership of the landlord with whom he has entered into a tenancy agreement. We should keep it clearly before us that here we are dealing with a criminal case and the case the Minister has been talking about, even if what he said were so, is a civil case.

The Minister has spoken about the necessity of producing title deeds in court, perhaps getting them from a bank in Dublin or Northern Ireland or even some finance house in London; or the way we are going on it might be necessary to recall them from further afield than London. However, we could amend this section in a way that would dispense with the production of the title deeds and provide that a sworn statement by the owner that he owned the property and did not give anybody permission to enter would be sufficient. Surely in any proceedings under this section it will be necessary anyway, I hope, to call the owner to say that he did not give permission to the accused to go into it?

That is the very point I am making. The defendant does not dispute it.

(Cavan): He does, but it should be provided that it would be necessary for the owner to say on oath that he owns the property and that he did not give permission to go into it.

I think we should discourage ourselves, if that is the proper word, from putting something into Acts of Parliament that is not capable of proof. As I see it, it will be unnecessary for the State to prove ownership unless the accused person proves that he had abona fide claim to ownership if he is charged with an offence under sections 2 or 3, but when we come to section 4 he will have to prove that everyone whom he encouraged or attempted to encourage had a bona fide claim to ownership. With all due respect that is impossible to prove because presumably the person who is charged under this section will be some well-intentioned character who will probably make a speech outside the property concerned and there will be people going up and down. How will he identify all those, bring them along and say: “They are all the people that I encouraged or attempted to encourage and each and every one of those has a bona fide claim to ownership.”? I put it to the Minister, in all seriousness, that that is an absurdity. It simply could not be done and if it could not be done there is no use putting it in.

I do not want to interrupt the Deputy but surely the answer is that it would be impossible for every such person to have abona fide claim. Therefore, it does not arise.

(Cavan): Then why not go the whole hog and say something that is sensible, say that in the case of an offence under section 4 the State simply shall not have to prove ownership, full stop, without going on with this bit of camouflage that is there pretending you are giving the accused person some protection when, in fact, you are not.

Again supposing he encouraged ten people who had abona fide claim to ownership to go in and five who had not, where would the offence arise there? The ten people might own it in common or have a claim to it under the absurd description of “owner” in section 1. They might go in and other people might go in with them. He will be charged then, and he will be innocent of inciting or encouraging the people who had ownership in the property and he will be guilty in respect of the other people. The whole trend of this section is somewhat dangerous. We should at least make it obligatory on the State to prove the owner, or the person claiming to be the owner, and that it would be necessary for him in addition to saying that he did not give anybody authority to go in, to say that he is the owner. We will skip the title deeds if the Minister wants to skip them, but I would put that onus on the owner because he will have to be called anyway.

Do I understand Deputy Fitzpatrick to say that he would be satisfied, at any rate, with an affidavit from the owner or the owner's manager or someone like that?

(Cavan): It would be necessary. There would be great difficulty in operating this Bill. From the Minister's point of view it is a well-intentioned Bill and to his way of thinking even this section is well-intentioned, but it will be very difficult to operate it because there is another section that the Minister brought in by way of an amendment which says that anything that is done under this section, that is done with the consent of the owner, is not an offence. I think any lawyer defending an accused person will ask for a direction at the conclusion of the State case unless the owner has been called to say that he did not give authority. Surely the onus will not be shifted on to the accused person to prove that he had the authority of the owner? I hope we have not got to that stage in this measure; and if the owner has to be called to say that he did not give authority why can he not say: “I am the owner and I did not give authority”.

Would the Deputy be satisfied if it was found feasible to amend the section on those lines?

(Cavan): On the line of an affidavit?

I suppose an affidavit would not arise if, as the Deputy says, the man would have to be called anyway; but would the Deputy be satisfied that the owner's sworn statement that he was the owner——

(Cavan): Would establish a prima facie case, yes. The onus would shift then on to the accused. I would be satisfied with that.

I am again trying to be as reasonable as I can. If I were prepared to consider trying to draft an amendment on those lines is that acceptable to the House?

(Cavan): It is acceptable to me at this stage.

The section is not acceptable to us, no matter what way the Minister amends it.

Mr. J. Lenehan

There is an awful lot of codology being talked about this Bill in view of the fact that no Act ever passed in this House has ever been enforced anyway, be it the Licensing Act or any other Act. I do not know why people are worrying so much about this Bill because it will probably be unenforceable anyway.

Is the Deputy speaking of Belmullet or of the country at large?

Mr. J. Lenehan

If the Deputy wants an answer he will get one that will cure him.

We are on section 5.

Mr. J. Lenehan

I will give Deputy FitzGerald an answer that will cure him. I know what his father did with Deputy Cosgrave long ago.

The Deputy may not bring in personalities.

I am most curious.

Mr. J. Lenehan

It is no business of his whether I am speaking of Belmullet or Timbuctoo.

Mr. J. Lenehan

I am speaking on section 5. Most Acts passed in this country have never been enforced by any Government. Consequently there is a lot of bunkum being talked here. The Fine Gael Party are here opposing this Bill.

The Deputy will have to keep to section 5.

Mr. J. Lenehan

I am getting to section 5. They are the most conservative party in Europe outside of the Unionists in the North and they are now objecting to——

The Deputy must speak on section 5.

Mr. J. Lenehan

I am coming down to it, Sir, or at least getting up to it. The people who are opposing this would have passed a far more conservative section if they had the opportunity of doing so. Of course, they just have not and they never will. Certainly as far as I am concerned they never will anyway.

Good man, Joe.

Mr. J. Lenehan

It is all right to talk about proof of ownership. Surely it is nothing but absolute codology. There is no criminal offence in existence or being invented. It is only pseudo-aesthetes and self-appointed geniuses who come in here with these interpretations of the various sections. They are on all sides of the House, but especially here under me of course. These people come in here and they interpret Acts in a way which was never intended.

We are not dealing with interpretations of Acts. We are dealing with section 5.

Mr. J. Lenehan

I am getting down to section 5. If the Deputy who spoke before me got away with the kind of stuff he went on with, I am entitled to try to interpret this section. My interpretation of it is that there is nothing wrong with it except in so far as bad thoughts and good intentions have got into the minds of people who probably did not even read the section. There is no such thing in the section as Deputy Fitzpatrick suggested. None of the things which he mentioned could ever happen in this country even if his party got into office, which God forbid. I am voting for this section if it comes up before I go. I am sure you know, a Leas-Cheann Comhairle as well as I do that there is no intention on the part of anybody to interpret this Bill or its various sections in the way in which they are being interpreted here this evening by people who are just looking for cheap publicity. That is that. I can put up with a lot but I cannot stand idly by for one moment——

Where did the Deputy get that phrase?

Mr. J. Lenehan

I got it from President Roosevelt a long number of years ago, before the Deputy was born. He was the inventor of that phrase. I cannot accept for a moment that somebody can go along and take over somebody else's premises and house. A crowd of plutocrats—the present Labour plutocrats—people who never did an hour's work in their lives are now dictating to us as to what we are to do, what we are to say, and where we stand. Wait until the next election——

You are standing behind us.

Mr. J. Lenehan

There is no danger that I would stand behind you. There is not a man in Ireland or woman either who would stand in front of you or behind you or lie in front of you. You are only codding yourselves. I would love to be sent out for an eggcupful of these fellow's sweat. Self-appointed Labour men, I cannot understand how the party on the far side, the most autocratic and conservative in Western Europe, can vote with the so-called Labour Party. That is what annoys me. It is very difficult for a man of my type, a long time knocking around this world, to have to try to put up with that type of thing in this House. I defy them to justify one word of what they said. It does not make the slightest difference whether they try to justify it or not because the point is that the Bill will go through. Whether they cut their hair or not it will go through. There is not a man in this House who has the honesty to come out before the public, even the poorest member of the public, and say he does not think that the taking over of public property, private property, my property, your property or the property of anybody else must once and for all come to an end. The day that we tolerate that type of thing and allow our property to be taken over by a crowd of pseudo-aesthetes and chancers, and all the other funny fellows, the hairy hogs of Trinity, we will end up with a nice country.

I am afraid, Deputy, that this is not quite related to the section.

Mr. J. Lenehan

I have said it now.

(Cavan): As far as I am concerned, if the Minister is prepared to say that he will look into the matter between now and Report Stage and will consider providing by amendment that it will be necessary for the owner to say he owns it, I am prepared to let the section go through now. It can be recommitted then on Report Stage.

I should like to support Deputy Fitzpatrick on that. There was some question of an affidavit being produced. I would suggest that would not go far enough and that the actual presence of the owner would be needed to formally prove ownership without any necessity to go into any detailed technical questions.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

I was saying to the Minister that something more than paper proof of title would be required. The physical presence of the owner would be required. In the case of this offence, as in the case of offences under the Larceny Act, property and ownership of property are the kernel. The Larceny Act does not present any difficulty in its operation and there should not be any difficulty in this case either. I would commend Deputy Fitzpatrick's suggestion to the Minister.

In relation to this section as elsewhere in the Bill, there seems to be a certain discrepancy between how the Minister explains the Bill to the House and the ordinary literal meaning of the Bill as it stands before us. The Minister has just been explaining it on the lines that if someone can show that he has abona fide claim, or can even make a claim at all, then there is no, as he says, song and dance about it, that this is quite a simple case and that no important onus of proof is shifted at all. On the other hand, the subclause beginning “unless” in this section seems to me to be very extraordinary and one which not merely shifts the onus of proof but shifts it to the point where the defendant can never prove what he is required to prove under the section. “Unless the defendant shows to the satisfaction of the court that he or, in the case of proceedings relating to an offence under section 4, every person whom he encouraged or attempted to encourage has a bona fide claim to ownership of the land or vehicle, it shall not be necessary for the prosecution to prove ownership of the land or vehicle.”

I understood that the Minister is prepared to consider changes to this section but I did not understand if the changes he is prepared to consider involved section 4 which seems to be the most objectionable section. He has to prove that every person whom he encouraged or attempted to encourage has abona fide claim to ownership of the land or vehicle. That would mean, for example, that if among the people he encouraged one had a bona fide claim but others who came to the help of the person who had the bona fide claim if they were encouraged, had not such a claim then the defendant would fail under this section. This requirement is utter nonsense because it has been said by the Minister in relation to the offence of incitement—and the Minister claims that incitement is what he is dealing with under section 4, advocate or encourage, although he has used different words, no doubt deliberately —you do not have to prove that you encouraged anybody nor if a person is deemed to have encouraged people here would he have any means of knowing whom he encouraged. He might know some of the people but he certainly could not know all of them, but here he has to show that every person he encouraged has a bona fide claim even though almost by definition, in the case of words spoken before a wide audience, or the printed word or words on television there is no means of knowing who was encouraged or not encouraged.

As regards the offence of attempting to encourage only the person who spoke or wrote the words complained of by definition can know fully whom he was attempting to encourage. After that he has to convince the court that these were the persons he was attempting to encourage and after that he has to show that all of them, every person, has abona fide claim to the ownership of the land or vehicle. It is deplorable to introduce such a crushing, impossible burden of proof into a subordinate clause in a Bill. The Minister's language when replying to a similar point made by Deputy Fitzpatrick was revealing. He seemed to indicate that it was all right to put an impossible burden on them because they should not be trying to do these things anyway. That shows a lack of sensitivity towards the rights of people, even people who may do something to which the Minister objects. Specifically we would like to know whether if the Minister is going to make changes in this he will be prepared to drop what seems to us this extremely objectionable and deliberate imposition of an impossible burden of proof on a given class of persons.

I cannot accept the points that Deputy O'Brien made. Whatever difficulties he has in that regard would be overcome by Deputy Fitzpatrick's suggestion and it is rather futile if we are going to amend the section to raise hares about what might happen under it as it is. I am prepared to consider Deputy Fitzpatrick's suggestion, assuming that we can draft a suitable amendment, which I presume the draftsman can do.

(Cavan): And to recommit it on Report Stage, which would mean that we could talk about it.

Would it be necessary to recommit it?

(Cavan): I think it is the usual procedure.

When the amendment proposed is in somebody's mind and it is not specific, recommittal is appropriate.

All right, I will agree to recommit it provided I get the section now, that I have not to go into all the other things.

Have we got to vote for this section and take a pig in a poke in regard to the amendment?

That is a matter for the Deputy.

(Cavan): I want to make it clear as far as we in the Fine Gael Party are concerned we are accepting the Minister's offer to reconsider this between now and the Report Stage.

Question put.
The Committee divided: Tá, 50; Níl, 9.

  • Aiken, Frank.
  • Andrews, David.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Brosnan, Seán.
  • Browne, Patrick.
  • Browne, Seán.
  • Carter, Frank.
  • Carty, Michael.
  • Colley, George.
  • Connolly, Gerard C.
  • Cowen, Bernard.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Davern, Noel.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Fitzpatrick, Tom (Dublin Central).
  • Flanagan, Seán.
  • Foley, Desmond.
  • French, Seán.
  • Geoghegan, John.
  • Gibbons, James.
  • Gogan, Richard P.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hilliard, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Lalor, Patrick J.
  • Lenehan, Joseph.
  • Lenihan, Brian.
  • Lynch, Celia.
  • Lynch, John.
  • McEllistrim, Thomas.
  • Meaney, Thomas.
  • Molloy, Robert.
  • Moore, Seán.
  • Noonan, Michael.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Des.
  • Sherwin, Seán.
  • Smith, Michael.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Wyse, Pearse.

Níl

  • Cluskey, Frank.
  • Corish, Brendan.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Kavanagh, Liam.
  • O'Connell, John F.
  • O'Donovan, John.
  • Pattison, Séamus.
  • Thornley, David.
Tellers: Tá, Deputies Andrews and Meaney; Níl, Deputies Cluskey and Kavanagh.
Question declared carried.

(Cavan): Before moving to the next section, may I take it that the Minister's offer still stands to have a look at the section and introduce a suitable amendment if possible?

I thought the Deputy wanted the Bill withdrawn?

Deputy Fitzpatrick will recall that I made it clear that if I got the section I would look at it on the lines suggested by him, but through no fault of Deputy Fitzpatrick I do not feel myself bound by that. I know that Deputy Fitzpatrick sent his emissaries to his right to try to straighten them out but they could not get through to the rather dense individuals there.

(Cavan): It will be in order to put down amendments on Report Stage.

SECTION 6.

Amendment No. 13 is in the name of Deputy Cooney. If the Deputy agrees, perhaps we could take amendments Nos. 13 and 15 together as they are related amendments.

I move amendment No. 13:

In page 3, lines 45 and 46, to delete "either by the owner of the land or vehicle to which the offence relates or".

Section 6 makes provision for a court, in dealing with a prosecution under this Bill, to award compensation to an owner whose property may have been damaged because a defendant has had to be forcibly removed. Paragraph (a) of section 6 provides that:

Where—

(a) an offence under section 2 or 3 of this Act is committed by a person (in this subsection referred to as the defendant) who, upon being requested (either by the owner of the land or vehicle to which the offence relates or by a member of the Garda Síochána in uniform) to leave the land or vehicle,

That would suggest that it is dangerous to leave it to an unidentified civilian, so to speak, to say to a person at that stage, who is not a convicted defendant but who may be before the court, although no offence has been proved, that he must do or desist from doing something. Such an order, if it is to have sanctions or criminal consequences, should be given only by a person who can obviously be seen to be a person of authority, namely, a member of the Garda Síochána in uniform. Again, one could have difficulty in knowing if that power of request would be available to an agent of the owner as well as to the owner. Having regard to the wide definition of "owner" in the definition section one could have an owner delegating the right to demand possession to some of these private detective forces we have nowadays. That could lead to a very undesirable situation. It would be much better, and it would not in any way lessen the effect of the section, if the power to make a request to an alleged defendant were left to a member of the Garda Síochána in uniform.

The same arguments do not apply to amendment No. 15. My reason for wanting to take "owner" out of paragraph (b) is that there would be a temptation—perhaps temptation is the wrong word—to an owner, if he is entitled to compensation for damage done when he is ejecting an alleged defendant by force, not to be discreet in the method of removal of the trespasser. If we are entering into the realm of criminal law again it would be quite sufficient, I think, to leave enforcement entirely in the hands of the Garda Síochána. If compensation for damage is going to arise as a result of a removal effected under this measure it should arise only when the damage is unavoidable and reasonably caused. As it is, this opens the door to the undesirable possibility of private detectives being engaged for the purpose of clearing premises and the owner then being able to ask the criminal court to award him compensation for the damage done by these persons. At the moment, as the Minister is aware, any person can use force to evict a trespasser from his premises. If I found squatters in my home I would not wait to invoke the law to get rid of them; I would get rid of them myself. I am entitled to use as much force as is reasonably necessary in doing so but, under the common law, I would not have any consequential right to compensation, except in so far as an action for trespass might lie, and then there might be difficulty in proving that the damage was sufficiently closely related to be consequential damage.

This is a novel legal principle and I would, first of all, give a right to make a demand and give that right only to a person in uniform. Secondly, I would award damages only when the damage was caused by a member of the Garda Síochána. The difficulty of having it otherwise is that a person to whom a demand was made could ask a civilian: "What is your authority?" and the effect of the measure would be nullified, or else there would be a row, and that would be wrong. Putting agents in a position to be compensated would remove the onus on them to be careful.

I commend Deputy Cooney on his attempt to bring some degree of justice into this measure but I still think it would take more than what Deputy Cooney proposes to make the section acceptable. Because of the preceding section and the new offences it creates the only way one could achieve what Deputy Cooney wants would be by making the Bill even more ridiculous than it is at the moment. The suggestions I have to make might appear ridiculous on their own, perhaps, but taken in conjunction with what has gone before, there is sense in them. The only way the section could be made acceptable would be by providing that only a member of the Garda Síochána in uniform could forcibly remove from any land or vehicle any person or the goods of any person. At that stage we would nearly want to make it an offence for the owner, as defined in the Bill, forcibly to remove any person or goods. One would have to create more offences. That is why I say my suggestion might appear ridiculous but, having passed the preceding section, this is the only way we could bring some balance into the Bill. It is completely one-sided in favour of people with property.

In order to balance the scales, as it were, of justice in this case, it should be equally an offence for an owner forcibly to remove a person from his property and it should not be an offence in a subsequent prosecution for an owner to prove his ownership. The kind of a suggestion we must make at the moment, possibly a ridiculous suggestion, is that when somebody has to be removed from property it should be only a member of the Garda Síochána who should do it.

I am afraid I cannot accept these two amendments. We should not start off in this section on the premise that it is the duty of the Garda to effect repossession of property. That approach, which is implicit in Deputy Cooney's amendment, is exactly the one that was criticised by several Opposition speakers, possibly by Deputy Cooney himself, on Second Stage. They objected to the criminal law being used to enforce private property rights. It could be argued that that would be precisely the effect of Deputy Cooney's amendment.

As it is now afait accompli, that is what is happening.

It is my belief that an owner should be the primary person to enforce his own rights and that the gardaí should enter into the matter only when it is impossible for him to do so because of the overwhelming weight of numbers against him. Deputy Cooney made reference to private armies. The possible difficulty that would arise out of that is dealt with in my three amendments Nos. 16 to 18, inclusive, which make it clear that an owner in entering his property endeavouring to eject somebody clearly will be doing so within the law. In line four, page 4, paragraph (b), it is stated that any entry by an unreasonably large number of people which would cause damage going beyond what is reasonable would not come within the scope of the section. Therefore, there is no encouragement at all to bring squads of people or to encourage them to lay about them too much.

(Cavan): I think the Minister should have further thoughts about his attitude to the amendments, which have considerable merit. The Minister will appreciate that when we have reached the situation which this section deals with, we will have an explosive atmosphere. We will have a person, according to the Minister, unlawfully withholding possession, we will have the owner demanding possession and taking steps to get it, and obviously there will be a breach of the peace. What the Minister is doing here is legislating for a breach of the peace.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

(Cavan): As I was saying, when the situation envisaged by section 6 is arrived at there will be a rather explosive atmosphere in the vicinity of the premises concerned because there will be somebody in possession, according to the Minister and the owner unlawfully in possession, and the owner will be endeavouring to get that person out. I think a breach of the peace is inevitable and that the Minister here seems to be legislating for a breach of the peace between two private individuals. It is much more likely that unnecessary damage will be caused to the property and that there will be unnecessary bodily harm caused to one or other or both of the people concerned.

I do not think this is a situation that should be dealt with at all by civilians and there is no use in the Minister complaining that we on this side of the House want to invoke the criminal law. The Minister has done that. He has made this matter the subject of criminal law. He is handing over the execution of the criminal law to a civilian. In the interests of law and order, in the interests of the preservation of peace, the amendments being sought by Deputy Cooney, therefore, have a lot to recommend them. There is no extreme urgency involved here. The owner or his agent would have every opportunity, I am sure, of notifying the Garda Síochána and asking them to intervene. It is much more likely that possession will then be taken and the offenders ejected in a rational and reasonable way, a way in which the minimum of damage will be caused to the property and a way in which no bodily injury will be caused to the offending person or to the owner. It is a mistake to let this section go through as it is.

Another thing that strikes me is that some person assuming ownership could come along here, demand possession and proceed to take possession. I know if he did any damage he might get himself involved in the civil law later on, but it is far more preferable that the owner should have to acquaint the Garda and presumably satisfy them that he was the owner and that this other person was unlawfully in possession. I think that is much more desirable than the procedure in the Bill as drafted which will create a brawl in which a great deal of damage may be done to property and much injury done to people.

The section does not indicate to whom the property belongs and this is an important point. We assume that it belongs to the owner, but what about the family in the house? They may have improved the house since they went into it and spent a good deal of money doing that. They may have quite an amount of valuable furniture and possessions of their own. The owner or his gang of bullies may break in, throw them and their belongings out and in the process smash up their property. That seems to me to be justified action under this section. Such action seems to have the protection of the law and here again the only class of people protected are the property owners. Damage done to his own property by the owner in the process of breaking in to his own property may be compensated under this section, but the persons in the house who may not have done any damage whatsoever to the property could be made to pay for the damage caused by the owner. This amendment goes some way in trying to protect property other than the owner's property. I do not think the section states whose property or to what property it refers. Does it refer to the property of the owner, the property of the person in residence or indeed the property of the gang who are breaking in? If for argument's sake the hired gang have some weapons for breaking in and these weapons are broken has the unfortunate defendant in that case to pay for the damage to the weapons? I understand these gangs use batons which are about twice as thick and about three times as long as the normal Garda batons. If these are broken in the process of breaking in will the person being thrown out have to pay for all the damage as well as damage to the property?

If Deputy Pattison reads the definition of "owner" it will clear up some of the points he has raised. The Minister made the point that because the obligation is present on the parties to behave reasonably this would inhibit the employment, by a person seeking possession, of a private detective force. As Deputy Fitzpatrick has pointed out, the premises sought to be cleared might be occupied by a number of persons. The person seeking clear possession would probably be able to argue that it was reasonable for him to have the assistance of a larger number of persons so that his attacks on the premises could be effective. When we enter the realm of criminal law I think enforcement of criminal law should be left exclusively to the Garda. It might help at this stage if I were to move amendment No. 14 if that would be in order?

No, we must dispose of amendment No. 13 before we get to amendment No. 14.

The insertion of the word "unavoidably" after "reasonably" would again reinforce the Minister's point that the section inhibits as it stands any extravagant action by an owner seeking possession. I think the amendments are reasonable, they will not cause any difficulty and they will keep civilians out of what is now a matter for the Garda. There is a further difficulty: if the civilian claims to be the owner to a person in possession of property which he is claiming and the person inbona fide refuses to go because there is no proof from that civilian that he is in fact the owner, that person could subsequently on the owner showing himself to be the owner, commit an offence and be responsible for damages. A person should know from the very beginning that, if he is refusing something, that refusal could have monetary sanctions afterwards. It should be very clear that the person to whom the refusal is made is the person of authority. The only person who can clearly show himself to be a person of authority is a uniformed member of the Garda.

Mr. J. Lenehan

This is a typical solicitor's amendment aimed at confusing the whole matter of the section so that it will be easier for solicitors to get even softer money out of it than they would get if the section was left as it is worded at present. The section as I see it is reasonably innocent and is absolutely correct. We have often heard about Daniel O'Connell's boasts about driving a coach and four through Acts of Parliament but if we were to heed some of the amendments which have been tabled in this House to Bills and to sections of this type it would not be a coach and four they would need but about six trains.

I cannot agree with what has been said and I doubt if any man in his proper senses could agree with this codology. What is wrong in this section? Has anybody been able to point out what is wrong in this section? The only thing which has been pointed out is some points which Deputies or their professional colleagues may hope to be able to use in the future for their own political benefit and for no other reason. I think the Minister is a solicitor.

Not a practising one.

Mr. J. Lenehan

He is like myself. I am not a practising TD.

I hope not. I think our various operations are a bit different.

Mr. J. Lenehan

They are slightly different. I do not agree with the point put forward by the Deputy, who is a solicitor, about a fire breaking out in a house. It is incredible that the Deputy could make the statement that if a person went in to save the people in the house where the fire had broken out he could be prosecuted. The biggest ass in the world would not believe that type of story. Anybody who breaks into a house where there is a fire, to save the family, or if there is nobody in the house to save the house, could not possibly be prosecuted. Who would prosecute such a person? Who would take that person to court or who would take the action against him? Nobody could accept that as an argument against the section. The only thing we should consider is the question of illegally taking over people's property. Even the tinkers in their tents would not like to see people going in to take over their property. As far as I am concerned I agree with this section.

It can be said that Deputy Lenehan is trying desperately to get his way back into the Fianna Fáil Party.

Mr. J. Lenehan

I am not trying to get back into the Fianna Fáil Party. Let the Deputy mind his own party. I am not going back, so the Deputy can forget about me. Let the Deputy make his statement and leave Deputy Lenehan out of it.

The political independence in Belmullet is getting rather chilled this weather and the Deputy is having second thoughts. I can see no other reason for the Deputy's preoccupation with this Bill this evening. This section is without question a deliberate incentive to any owner of any property or vehicle to cause damage to property indiscriminately and subsequently to seek damages. This is a fair reading of the probable results of this section. I maintain there are adequate statutory provisions in terms of action for damages in other Acts not to require the provisions of this section. It is a very provocative section. Once again we see in the Minister's action a twisting of the law against defendants on the assumption of prior guilt.

If we could dispose of the amendment first we could then discuss the section relevantly.

The section itself and the amendment——

The amendment only.

I feel one must take into account the fact that where damage is caused a very difficult problem arises of assessing damages in relation to damage to property. This problem is being deliberately elevated by the Minister. The section and the amendment do not particularly make any improvement.

As Deputy Fitzpatrick pointed out, the amendment will in no way succeed in improving the section. In fact the section is a breach of the peace and it typifies the approach of the Minister. The amendment is not of any real consequence in the long term in relation to the section as a whole. I do not think that the amendment will in the long term change the purport of the section.

The Minister should certainly accept that his whole approach is entirely wrong and undemocratic. It is right to point out that there are a great many disputes relating to property, indeed that there are a greater number of internal family disputes in this country relating to property than there are to other matters. This is where the Minister by promoting this section and by adopting this attitude in relation to the amendment will, in fact, open up areas which certainly will result in damage to property and in damage of a physical nature to the persons in the disputes. It confuses completely the statutory role and the protective functions of the Garda Síochána and the civilian population. This is a basic problem arising in relation to the amendment and I suggest that the Minister would be wise to drop it before the section proves to be damaging to the country.

(Cavan): I have pointed out in relation to this Bill that it was loaded in favour of the man of very considerable substance and against the mere occupier. Deputy Lenehan is a practical man and a man who brings an earthy approach to some things. One need not always agree with him. The Deputy obviously thinks that there is some merit in this Bill because it will protect the lowly caravan of the unfortunate itinerant. In drafting the Bill, the draftsman seems to have gone out of his way to exclude the itinerant caravan and to leave it vulnerable to the man who thinks that the itinerant should “get on and get out”. I do not think that the protection which Deputy Lenehan sees in this amendment in favour of the itinerant is there. If we look at the definition of “vehicle” on page 1 we will see that it means an aircraft not in flight, a train, an omni-bus or a boat—presumably a pleasure cruiser—a ship or other vessel in any port or harbour, or in any river or lake in the State or anywhere in territorial waters. There is not a word about caravans but somebody may say they are included in the definition of “house”. I do not think that is so. If we go to “land” we will see that “land” includes messuages and tenements of any tenure, land covered by water, houses or other buildings or structures whatsoever and parts of any such houses, buildings or structures whether divided vertically, horizontally or otherwise.

It is included in "structures".

(Cavan): I do not think so. The Supreme Court could spend a week talking about that.

We are supposed to be on amendment No. 13. I put in "caravan".

Miscellaneous habitats.

Will the Minister put in tents as well?

(Cavan): I say that “caravan” is not included. I am pointing this out because Deputy Lenehan seems to find that it is included from his study of the Bill.

In support of my suggestion that "owner" would be deleted from section 6, paragraphs (a) and (b), I would refer the Minister to the fact that the definition of "owner" refers to anybody acting on behalf of the owner. This could be a person demanding possession who would not be the owner at all.

I would like to make it clear that section 6 does not give any right of entry to the owner which he has not got at the moment. If owners were to come along with private armies, as they have been described here, and to use more force than was reasonably necessary then they would not be lawfully entering and they would be outside the scope of the section. Assuming that my three amendments of the section are accepted, and that these people would be civilly liable for injury or whatever damage was caused to the legal occupants, as well as being deprived of the benefit of this section which would cover whatever damage they had to do in the course of their lawful business in trying to enter——

Would the Minister clarify the point? Can the Minister see any conflict between the common law right of an owner to evict and use reasonable force in evicting and an owner coming in and invoking the assistance of the gardaí under this section? If an owner invokes the assistance of the gardaí under this section and damage is caused to his property and he is awarded damages in the subsequent prosecution can he still have an action for trespass on the civil side against the people he has evicted?

I would think so. This section subsequently gives him the right to recover as a simple contract debt the amount of damage. Neither the section nor any part of the Bill takes away the civil rights that anyone has against anyone else at the moment.

The sympathy of the Minister for the owner and those particularly active on behalf of the owner is extreme and absurd. One might make a case that where somebody purporting to be the owner of a particular property—he might be a returned Yank—proceeds to hire a group, or even his relations, and where he claimsbona fide entitlement to be in dispute and proceeds to take over a property and to damage it very considerably and to involve the local gardaí in the fracas with his relations or the persons with whom he is disputing ownership, it might transpire subsequently on the production of title that it was not his property at all. I see no sensitivity in the Minister's mind for the inclusion of any section in the Bill whereby a person seeking entitlement was so damaged that he would have a counterclaim.

I have just said that it does not affect civil remedies.

If one had a civil remedy on the one hand why should one have criminal proceedings on the other hand? This is the whole point of this legislation. A person could be grievously damaged in his possession of a particular piece of property which could be taken over, destroyed and damaged by any individual indicating that he is the owner. Such a man may "con" the local sergeant and involve members of the Garda Síochána in circumstances where the Garda Síochána, from my experience of them, are extremely careful and reluctant to be involved. Traditionally they should not be involved in property disputes. The Minister is inveigling members of the Garda Síochána into such disputes throughout the country. The Minister is of such a frame of mind, as he said at the beginning, that the purpose of the Bill is to get at a handful of people whom he cannot conveniently catch at this point in time, and he has, therefore, devised this elaborate piece of legislation which affects all property owners and occupiers and those in possession generally. Nobody will know whether it is or is not his own car, tent or caravan—caravans are not included in the Bill—or whether anything is or is not his own piece of property. The inconsistency of the Bill is continuously shown up and the Minister should have the good sense to appreciate the anomalies which are likely to develop. I have in mind the kind of situation currently under the law. I was recently involved in a case in Shankill——

Could we dispose of the amendment and get on with the section? We are straying wide of Deputy Cooney's amendment.

The whole section cannot be considered unless we take the amendment in the context of the section as a whole. We are not responsible for the drafting of the Bill. Admittedly, Deputy Cooney is trying valiantly to introduce some sense into certain sections of the Bill but, owing to the Minister's frame of mind on it and knowing the ineffectiveness of amendments generally in relation to this Bill, I do not see how this can be done.

(Cavan): The Minister has stated that section 6 does not confer any right on an owner that he does not already enjoy. I accept that but it does encourage him to take the law in his own hands. It encourages him to engage in a breach of the peace. It encourages him also to become involved in a fracas and that should be avoided. If I may refer again to the definition of “vehicle” I would like to have a long discussion with the Minister on this because I believe that “vehicle” does not cover “caravan”. As a principle of interpretation, once “caravan” is excluded from a definition of “vehicle”—it is much more like a vehicle than it is a house—it would not be read by the Supreme Court into the definition of “house”. The Minister will find that it is one of the rules of interpretation that if one sets out to define something and then excludes something from the definition, it will be excluded from the Bill.

The Minister must be aware that serious breaches of the peace will occur if this section goes through as it is. The Minister may say that the section does not give to the property owner any right of entry that he has not got already but the fact still remains that the circumstances that will surround the right of entry and the circumstances in which the entry will now be made will be far different from what they have been up to now and that it will be very difficult to maintain law and order when circumstances which, according to the Minister this Bill is aimed at rectifying, occur. Unfortunately the steps taken in this section without the amendment as proposed by Deputy Cooney will give rise to many and serious breaches of the peace. It will not be necessary for even a member of the Garda Síochána to be present while this type of evictions is taking place. How, then, does one determine what is reasonable or what is a reasonable degree of force to eject people from property? It would be merely one word against another. In those circumstances one could not define what would be a reasonable degree of force.

All of this stems from the Minister's insistence on retaining in the section the words that Deputy Cooney wishes to have deleted. In the case of a dispute in relation to property, if it is an offence for a person to enter a building forcibly, it should be an offence also for anyone other than a member of the Garda Síochána to enter property either legally or in the belief that he has abona fide right to enter it. The Minister would not need to have any great imagination to realise the circumstances that will arise when this section becomes operative and when the procedure as outlined in section 6, without the necessity for the presence of a member of the Garda Síochána, has gone through the House.

The strongest argument in favour of refusing to accept this amendment was made by Deputy Desmond who said that the gardaí should be involved to the least possible extent in matters of this kind. As Minister for Justice that is also my view. At the moment an owner of property is entitled to put out an illegal occupant. Frankly, I do not wish that such activity would be forced on the gardaí to any greater extent than is avoidable.

Then, withdraw the Bill.

It is unavoidable of course, where the number of occupants is so great that the owner is powerless. I am sure Deputy Cooney appreciates the point I am making and appreciates also why I cannot accept the amendment.

All of us would agree on the undesirability of the gardaí being brought in at all. As the Bill stands the alternative is either the gardaí or the owner. The trouble is that while the gardaí have no interest in doing damage in order to retrieve damages from the occupier an owner has that interest.

I have said already that if he does more damage than is necessary, he will not get damages.

That is a matter of judgment on which evidence may be difficult to obtain. Where will lie the onus of proof in this respect?

On the owner. It would be the plaintiff or the applicant or the man who does the damage who will have to prove that he did not do more damage than was necessary.

I am not entirely satisfied that that is necessarily the case. How is he to prove this? If he enters a building by breaking down doors or windows in, say, the middle of the night when there is nobody there but the squatters, under what sections can the onus of proof be put on him?

The court will decide when they know the circumstances.

It seems to me that as the section is worded at the moment the court would tend to give its view on the side of the owner unless there is evidence to the contrary. An owner could get away with a good deal of unnecessary damage where no onus of proof could be shifted to him. Is the Minister suggesting that the owner would actually have to come in and show what damage was done and show that he could not have entered the property in any way that would have caused less damage?

If he wants the benefit of that section, he will have to show that he acted reasonably but there is no obligation on him to try to benefit from the section. He would have to show also that he acted lawfully.

Supposing the prosecution is a police one, how, then, does the owner come into it?

Presumably, evidence for one thing.

Does that mean that a police prosecution could not succeed unless the owner gives concrete evidence that the police could not have entered the property in any other way? I am not clear on the method of procedure. Would the Minister explain how the issue of proof would come up in the case of police entering the property?

If the owner goes in there might be no prosecution because he might be happy enough to get the persons out.

Supposing he decides that here is an opportunity to inflict some damage to the property on the side?

There is no question of his creating damage for the sake of damage.

Indeed there is.

(Cavan): Not unless he wanted to knock the property and turn it into an office block.

The one way in which he might get at the occupiers would be to do damage which he could then charge to them. As the section stands it is an invitation to an owner to abuse his position in order to secure damages from the occupiers. and I do not think we should give such an invitation.

If the Deputy looks at paragraph (b), line 5 on page 4: "damage to property is reasonably caused".

I know that, but is the Minister saying he accepts Deputy Cooney's amendment "unavoidably"?

We have not come to that yet.

In those circumstances, until we hear from the Minister that he is prepared to accept that, we must be very suspicious of a provision which does not have such a word and which, in the absence of that word, does not shift the onus of proof adequately to the owner, that puts him in the position where he could inflict damage with a view to recovering damages from the people occupying the property. The Minister must remember how these things operate. The owner does not turn up himself in his little motor car, knock on the door and go in. We know what happens. He employs an agency to recruit any group of unemployed people they can get hold of and who are as tough as they can get, to come and break down the place, throw the people out, beat them up in the street and do as much damage as they can. This is what happens, as I saw it with my own eyes in Hume Street. It is no good the Minister raising his eyebrows. He was not there. I was there a short time afterwards and saw the damage that was done and saw the way they behaved.

This is the actual situation we meet, and having that evidence of how owners behave in certain circumstances we must be very suspicious of any provision which would put them in a position to extort damages from people occupying their property by doing more damage to it than is necessary to get them out. Unless the Minister is prepared to accept the word "unavoidably" we must be extremely suspicious of the section. I agree we do not particularly want to press the police to take the onus, but if we are to have this section at all the owner certainly should not be given that temptation, and if the section is to remain at all it should only remain with the provision in respect of the police who have no interest in doing damage.

A particular case comes to mind where an old dilapidated lodge was occupied by squatters. They put in windows and a new door because there was no door or windows in the premises. Would it be a good defence in such a prosecution for the defendant to say that the landlord would not be at a loss as a result of damage to the door or windows? In this case I have in mind, if the landlord or the owner or anyone on his behalf were to proceed in accordance with this section, he could do damage to the doors and windows and have protection under this section. In addition to that they could then go to court and claim compensation for such damage. What provision is there here to protect occupiers in such a situation?

I should like to understand this a bit more. As I understand subsection (1), lines 10 to 15, the court can decide to impose these damages on the defendant. There is nothing to say that evidence has to be given at all on the subject of whether the damage was reasonably caused or not. The court may infer that——

It is in paragraph (b) above it: "damage is reasonably caused". All this has nothing to do with the amendment.

It has, because the question arises whether this section with this phrase about the owner in it does or does not carry with it the risk that the owner could use it to extort damages from the people who occupied his property. Either this is the case or it is not. If it is not, then the amendment would appear to be unnecessary. If we are to decide whether to adopt the amendment or not we must be clear on how this would operate. Supposing a case comes up and somebody is prosecuted under this Bill as an Act, and no evidence is given on the question of the damage, is the court, as I understand it from subsection (1), entitled to infer that the damage was caused and reasonably caused without the issue having been brought up in court and without the defendant having had the opportunity to answer? Is the wording of it such that the onus is placed on somebody to assert that the damage was reasonably caused? Secondly, am I not right in saying that once the assertion is made that the damage was reasonably caused, the onus of proof is then shifted to the defendant to disprove that, and unless he succeeds in disproving it to the satisfaction of the court, the court would or could accept the assertion of the prosecution in the matter?

I am glad to say that Deputy FitzGerald is wrong and that the answer in both cases is "no". The court cannot infer damage or cannot assume damage and then take it into account. The clearest evidence would have to be given on the amount, and the reasonableness of it would have to be proved, and the onus to disprove reasonableness is not on the defendant. It is a matter for the prosecution to prove it. Even if it is proved the courts still do not have to act on it. If they see fit they need not.

(Cavan): There is only one thing that, as a practitioner I do not like about this sort of provision, that is, when we reach this stage in a court case the accused person will either have been convicted or have pleaded guilty to the offence before this provision comes into play. Such a person will be awaiting sentence or will be about to be sentenced and is not usually in a very strong position as to whether there was £5 or £15 worth of damage done.

That row would have been kicked up before he was convicted.

(Cavan): No. The Minister will know from experience that is not so. Take a case of malicious damage. The defendant pleads guilty, say, to damaging a public house window. The judge will ask what amount of damage was caused and the owner of the premises may say that £25 worth of damage was caused. It may very well be that is a grossly exaggerated figure, but the accused person and his advisers are not in a strong position to quarrel with this man who has been wronged and whose property has been damaged. They usually sit quiet and adopt the line of least resistance, hoping they will get away without a prison sentence if they do not question the damages. That kind of atmosphere very often arises at the stage I am talking about. This is a dangerous type of provision.

Is it not a fact, too, that this question of damages will only be consequential? What will be before the court is a prosecution by a Garda for a substantive offence, and the court will not initially be considering damage. It is only when it comes to imposing penalty that the question of damage will arise. The court then will have to address its mind back to the evidence, after the hearing, on the question of whether it was reasonable or not. As Deputy Fitzpatrick points out, and as I can confirm from my own experience, it would be a very rash line of cross-examination on the part of the defendant to start tackling the owner as to whether he should have taken more care coming in to put the defendant out of his property.

Is the amendment withdrawn?

We want to hear the Minister's reply.

The point that has been raised in the last few minutes has really nothing to do with the amendments, that I can see, but I think Deputies should have more confidence in the ability of the courts to do justice. A district justice sitting there and seeing the whole thing will not let somebody get away with some outrageously high claim to which he is not entitled. It is a matter of practice. They will not do it. Very frequently one sees claims made in respect of malicious damage and so on that are a good deal higher than what the actual figure is. The justice will not allow this. One sees it even in the claiming of expenses by witnesses. The justice will see that only the right figure is allowed. The courts will see that justice is done.

The Minister is missing the point. It is not suggested that the owner will exaggerate the value of the damage done. He may do so. That is a separate issue. The suggestion is a different one. The owner may, in fact, do a certain amount of damage more than is necessary. The case is heard and this issue does not come up in the hearing of the case at all. The defendant is then convicted. The question then arises as to what damage was done to be taken into account for the purpose of the penalty. The owner asserts that a certain amount of damage was done and the figure may be absolutely correct. He may produce a builder's certificate for the cost of repairing it. At that stage you then shift the onus of proof to the defendant because he then has to show that the damage was unreasonably caused because it is inconceivable that at that stage and in practice it will not happen, that the owner will get up and start calling witnesses on the question of the penalty to show that the method of effecting entry to the building was the only possible way, that he went in by the smallest window and caused the least damage. It is inconceivable that at that stage this evidence will be called. The owner will assert that the damage was caused and there will be a presumption that it was reasonable unless that is rebutted. You then shift the onus of proof to the defendant. It is because of that, that I think the amendment is necessary.

To the Chair this would seem to be more related to the section than to the amendments.

Yes. If we could get the amendments out of the way.

We cannot decide whether the amendments is necessary or not unless we are clear as to whether there is or is not a danger that the owner could be tempted to do more damage than is necessary because he would get away with this as a means of penalising the person concerned, either through the action of the court in imposing a penalty or by suing on a contract debt basis. It is because I require that clarification before deciding on the amendment that I am pressing the Minister on that point.

The position under the section is that the owner must satisfy the court that the damage done to his property was reasonably caused. If he does something more than that, something that is unreasonable, he does not recover. That is that.

May I put it this way? The defendant is convicted. The court is considering the penalty. The owner is then called to say what the damage was or the solicitor is called. He says: "£100 worth of damage reasonably caused". He sits down. Is it seriously suggested that the district justice will then ask him to stand up again and describe the damage in detail and to call witnesses to show that it was reasonably caused? I do not believe that for a moment. I believe once it is asserted that the damage was reasonably caused to conform with the Act that then unless it is challenged by the defendant——

Yes, well it is open to him to challenge it.

Exactly, but the onus of proof is shifted to the defendant.

No. The court must be satisfied.

I am glad the Minister has admitted that.

I have not admitted it. I said it is open to him to challenge it if he wants to.

If he does not?

If he does not it does not matter. The court must be satisfied.

If he does not challenge it at that stage he then can have a heavier penalty because of damage deliberately inflicted by the owner beyond what was necessary. Therefore, to protect himself he must try to disprove the mere assertion that the damage was reasonably caused.

And he has to disprove that after the trial is over and on the issue of the penalty.

No, the Deputy is wrong.

How am I wrong? The Minister told me himself it is open to the defendant to challenge it.

I cannot get through to the Deputy, I am afraid. I have told him about three times what the section says. It has nothing to do with the amendments we are discussing—"where damage to property is reasonably caused by the owner or a member of the Garda Síochána." The court must be satisfied that it has been reasonably caused.

And if the owner asserts, as an assertion——

But that is a matter for the court as to whether an assertion will do or whether witnesses are required.

If he asserts that, would any ordinary court not accept that assertion if it is not challenged?

The court is master of what it accepts and what it does not. It is not for the Deputy or me to nail it down.

Is the Minister suggesting——

I am suggesting nothing.

——that the procedure the court will adopt in those circumstances will be, if the assertion of reasonable damage is made, to call evidence on oath that that damage is reasonable because I do not believe the court would do that on the issue of the penalty?

We are getting away from the amendment.

I am trying to establish whether I am right, as I appear to be from the Minister's admission, that the onus of proof is being shifted to the defendant.

I most certainly and positively denied that, three times I think, so how the Deputy can say I admitted it is beyond me.

We will take it stage by stage.

We have taken it stage by stage several times.

The Minister's denials are unconvincing and general. The issue comes up. It is asserted by the owner and his solicitor that the damage was reasonable. He sits down. Can the Minister say what he thinks happens at that stage?

I have already told the Deputy three or four times.

The Minister has not told me at all. Does he suggest that the court will not accept that statement unless witnesses are called on oath?

That would be a matter for each court.

Is the Minister suggesting that no court would accept that assertion without evidence on oath?

That would be a matter for each court. Most of them probably would not. It would depend on the amount of evidence they have already about the general circumstances.

It would depend on the court. Therefore, the court might accept that assertion without evidence on oath. The court having accepted that assertion, without evidence on oath, the only way the defendant can avoid the extra penalty is to produce evidence to rebut it. If the words "shifting the onus of proof" mean anything that is shifting the onus of proof and it is shifting the onus of proof at a point after the trial is over and on the issue of the penalty.

Ask Deputy Cooney about it. He will explain it to you.

Deputy Cooney is, I think, in agreement with me on this point?

Deputy Cooney's face looks as pained as I am sure mine does.

Would the Deputy make his argument in favour of the amendment?

I am making my argument.

We cannot have question and answer across the House at this stage.

It is difficult to proceed otherwise when the Minister makes generalised assertions which he is not prepared to defend. My argument is that the amendment is now necessary because if these words are permitted to remain in the section it will be open to an owner to cause unnecessary damage knowing that when it comes to the penalty in court all he will have to do in order to secure additional damages will be to assert that the damage was reasonably done, thereby shifting the onus of proof to a defendant in a weak position to defend himself. For those reasons these words should be deleted.

And without interference by the Minister himself——

Is Deputy Coughlan contributing?

——which he has done already, interfered with justice, with the action of the courts.

If the Deputy wishes to make a contribution the Chair is willing to listen.

I have made my contribution.

There is a normal way.

The Minister should leave it to the court and he is not doing that and I can prove it. Has the Minister a reply to that?

Is the amendment withdrawn?

I am not in the habit of replying to abusive remarks of a personal nature by a Deputy under the influence of intoxicating liquor.

The Minister——

The Deputy will permit the Chair to put the question.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 49; Níl, 40.

  • Aiken, Frank.
  • Andrews, David.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Brosnan, Seán.
  • Browne, Patrick.
  • Browne, Seán.
  • Carter, Frank.
  • Carty, Michael.
  • Colley, George.
  • Connolly, Gerard C.
  • Cowen, Bernard.
  • Cronin, Jerry.
  • Cunningham, Liam.
  • Davern, Noel.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Fitzpatrick, Tom (Dublin Central).
  • Flanagan, Seán.
  • Foley, Desmond.
  • French, Seán.
  • Geoghegan, John.
  • Gibbons, James.
  • Gogan, Richard P.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hilliard, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Lalor, Patrick J.
  • Lenehan, Joseph.
  • Lenihan, Brian.
  • Lynch, Celia.
  • Lynch, John.
  • McEllistrim, Thomas.
  • Meaney, Thomas.
  • Molloy, Robert.
  • Moore, Seán.
  • Moran, Michael.
  • Noonan, Michael.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Des.
  • Sherwin, Seán.
  • Smith, Michael.
  • Timmons, Eugene.
  • Wyse, Pearse.

Níl

  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Burke, Joan.
  • Burton, Philip.
  • Cluskey, Frank.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Cott, Gerard.
  • Kenny, Henry.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • McMahon, Lawrence.
  • Malone, Patrick.
  • Murphy, Michael P.
  • Creed, Donal.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • Donnellan, John.
  • Enright, Thomas W.
  • Esmonde, Sir Anthony C.
  • Fitzpatrick, Tom(Cavan).
  • Fox, Billy.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Kavanagh, Liam.
  • O'Connell, John F.
  • O'Donnell, Tom.
  • O'Sullivan, John L.
  • Pattison, Séamus.
  • Ryan, Richie.
  • Taylor, Francis.
  • Thornley, David.
Tellers:— Tá: Deputies Andrews and Meaney; Níl: Deputies L'Estrange and Cluskey.
Question declared carried.

I move amendment No. 14:

In page 4, paragraph, (b), line 4, after "reasonably" to insert "and unavoidably".

If the words are inserted the section would read "that where damage to property is reasonably and unavoidably caused by the owner or member of the Garda Síochána." This is a novel section and it is importing an extra penalty on an offender and as it does contain within itself the temptation to the owner or member of the Garda to be careless in his conduct in clearing the property it is only right and in the interests of justice that it would be clearly seen by the court that the damage was unavoidably caused. I do not think it is imposing any hardship or putting an undue onus on any of the parties in the proceedings to insert these words. The debate on the earlier amendments covered most of the points that will arise in this connection.

I have not got any very strong feelings one way or another about this amendment but I do foresee a difficulty if I accept it and that is that the case may well be made that if an owner, or the gardaí break down a door, which would be the normal method of entry, it could be put up against them that they could have, for example, got in by the skylight and that it cost £20 or £30 to fix the door and the skylight could have been fixed for £1 or £2. There is that problem as I see it.

That type of problem would be met by saying that it is reasonably and unavoidably caused. The two together would be construed and it would be unreasonable to suggest entry through a skylight if a door was available.

That is what I am worried about, as to whether or not it would be "unreasonably". A defendant could, in spite of the fact that Deputy FitzGerald thinks that defendants will never open their mouths once they are convicted, get up and say "Oh well, there was a skylight and there was only a pane of glass that size which would have cost £1 and you could have come in through that."

(Cavan): There might be a pane of glass in a window.

Well, or a window, for that matter.

(Cavan): Then it would not be reasonable to knock down a door.

If for example you had a force of six gardaí engaged on this job it would be a bit unreasonable to expect the six gardaí to get in through a pane of glass in a window. The normal thing might be to break down the door.

Each case will have to stand by itself in the court at the time. It will have to be left to the court to interpret "reasonably and unavoidably" in the light of the circumstances of the particular case. However, I would like the section to make clear to the court in coming to its interpretation that there is no temptation beforehand for the people effecting entry to be unreasonable or to do something avoidable. If they are reasonable and the thing is clearly unavoidable they will not be prejudicing the conviction. I would just like the onus to be there to make sure that there is absolute fairness on both sides.

I could understand the Minister's reluctance if because the defendant asserted that it was unavoidable and because there was an element of truth in this he could not then be convicted and he could get off on a technical point, but we are talking about the size of the penalty and we should be concerned to ensure that no penalty is inflicted because damage is caused that need not have been caused. Even if there may be occasions when the skylight argument is put forward and stands up, the worst that would happen would be that in those circumstances because the gardaí chose the easier way out, causing more damage, the scale of penalty inflicted is not increased. That does not seem to be a very great loss to anybody. The defendant should be protected and not be in the position where he can have imposed on him a larger penalty simply because the gardaí and the owner chose an easier solution than the one that would have caused least damage. If it were a question of prejudicing the conviction then I could understand the Minister's concern but that is not the case.

I have some misgivings about it but to show mybona fides and reasonableness I will accept it.

Amendment agreed to.
Amendment No. 15 not moved.

Amendments Nos. 16, 17 and 18 may be discussed together.

I move amendment No. 16:

In page 4, line 5, before "entering" to insert "lawfully".

The object of the three amendments is to make it clear that the provisions of section 6 shall apply only in relation to damage to property reasonably caused by an owner, or a member of the Garda Síochána in uniform, who lawfully enters, or attempts to enter, the property with a view to retaking possession of it from a person who has committed an offence under section 2 or section 3.

Section 6 is designed to apply to the type of case where it becomes necessary for an owner or a member of the Garda Síochána to use force to eject protest groups or squatters and in the process he causes damage to property. Since damage reasonably caused in such circumstances will be attributable directly to the refusal of the illegal occupiers to get out when asked to do so, section 6 provides that the court in coming to a decision as to the penalty appropriate to the offence may take account of the damage done as if it were damage caused by the defendant. It may also take into consideration whether the defendant has compensated the owner for damage. The section also provides that the owner may recover the amount of the damage as a simple contract debt in civil proceedings.

It is to be noted that before the provisions of the section can come into play three things must have happened. First, an offence under section 2 or 3 must have been committed by the person who is squatting. Secondly, the person must have been asked to leave by the owner or a member of the Garda Síochána in uniform. Thirdly, damage to the property must have been reasonably caused by the owner or garda in entering, or seeking to retake possession, or in ejecting the squatters.

Because the word "owner" is widely defined in section 1, some Deputies may be under the impression that the section confers on, for example, a ground landlord power of entry which he does not have at the present time and that the section entitles such a person to recover from the squatter damages caused by an entry, or attempted entry, which but for the Bill he would not have any right to make in the first place. I am satisfied this is not a correct interpretation of the section but, in order to put the matter beyond all doubt, I am moving these amendments to paragraph (b), the effect of which will be to limit the operation of the section to cases where the entry, or retaking of possession, or ejection of the squatter is lawful in the first place. Amendment No. 8 also had a bearing on this matter inasmuch as it makes clear that nothing in this Bill confers on any person any right of entry which does not exist immediately before the Bill comes into operation.

Can the Minister state why the garda must be in uniform?

So that members of the public can be satisfied that the person is a garda, not a person claiming to be a member of the Garda Síochána.

What is the situation if the garda is in plain clothes?

I think it is only the people in uniform who enter. The people in plain clothes stay outside.

I agree with the Minister that there is a danger of confusion there. A situation could exist where people from a private group could come along with the Garda Síochána and might be confused with them.

Can the Minister state how his amendment diminishes the prospect of breaches of the peace occurring under this section.

It does not affect breaches of the peace one way or another.

But they will still occur.

That has nothing to do with breaches of the peace.

It will be a breeding ground for breaches of the peace.

(Cavan): The Minister's remark provokes me to think again about the question of the definition of “owner”. The Minister seems to think that he has got over that by inserting the word “lawfully” but I am not sure that this is so. Amendment 6 states:

Nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner.

Unless the Minister intends to amend the definition of "owner" later on— which I hope he will do—I think that the owner, in the present definition, would still be entering lawfully.

The point I was making in the amendment is "lawfully" without reference to the Bill. As I have already said, I have agreed I will look at the definition of "owner" between now and Report Stage.

(Cavan) We will leave it at that.

Amendment agreed to.

I move amendment No. 17:

In page 4, line 6, before "taking" to insert "lawfully".

Amendment agreed to.

I move amendment No. 18:

In page 4, line 8, before "ejecting" to insert "lawfully".

Amendment agreed to.
Question proposed: "That section 6, as amended, stand part of the Bill."

Proviso (i) of paragraph (b) provides for a situation where a court, in coming to a decision as to the penalty, and having heard evidence as to how the offence was committed and how the people were cleared from the house, if there was a question of an offence under section 3, will take into account whether the defendant at that stage has compensated the owner in respect of any damage caused in clearing the premises. If the court finds he has not paid any compensation to the owner, bearing in mind that the owner is as defined in section 1, one presumes that the intention then is that it will be open to the court to impose a severe penalty. Possibly it may impose imprisonment where it would have merely imposed a fine had compensation been paid. The penalty section provides for a substantial penalty in the case of second and subsequent offences and a very heavy penalty in the case of a conviction before a jury.

If such a case arises and the court measures its dissatisfaction with the defendant's failure to pay compensation by imposing a heavy penalty, there is nothing subsequently to prevent the injured owner suing the defendant for damages by way of simple contract debt. In effect, an injustice could be done because the failure to pay compensation will have been dealt with already by the court in imposition of penalty, presumably by imposing a heavy penalty. Yet, the defendant having paid that penalty could find himself open to an action for damages.

Provisos (i) and (ii) show the essential difficulty which this piece of legislation contains, namely, that the borderline between civil and criminal law is being criss-crossed. The Bill sets out to create new criminal offences and to provide for them in the normal way by fine or imprisonment, or both, and then it goes on to compensate the owner for what is essential damage to his property by an act of trespass. Again we are back into the realm of the civil law. This section is not good in that the second proviso, providing for an action for damages, should be left out of it because this is a criminal Bill and a criminal Bill only.

I just want to explain why we in the Labour Party will oppose this section. Once more, let me emphasise that, in opposing the section, we are not thereby supporting all forms of squatting and all forms of forcible entry. What we are saying is that the civil law is adequate—it may be a bit slow—to deal with these problems. These provisions make no distinction between the different forms of squatting, all of which are not unjustifiable. This section, like the preceding sections, continues the trend of making the strong stronger and the weak weaker. As the law stands, the squatter, after certain legal process, is ejected from the place in which he is squatting.

Now the Government propose to make all types of squatting criminal offences. Even the most justifiable squatting will be a criminal offence. An unfortunate man with a wife and family may find himself a defendant in legal proceedings and subject to heavy penalties and to the payment of compensation. Still further penalties are provided in a later section. There is no obligation of any kind placed on the owner.

He is given wide powers of action. He will be in a strong position to justify to the court any action he takes. The unfortunate defendant, with his wife and children on the side of the road, will not be capable of taking hold of whatever legal straws are held out to him. These sections, as I say, make the weak weaker and the strong stronger. There is no obligation on the strong. The weak are placed on the defensive all the time. We must oppose this section.

Deputy Cooney made an interesting point. I cannot answer the Deputy offhand, but he will recall that there are a number of provisions in our criminal or summary law where, when a fine is imposed by the court, the court has power to award all or part of it to an injured party. That is not specially stated in this Bill and I am not clear as to whether or not it is an inherent power. I will have to look into that.

The Road Traffic Act is the only one I know of.

I believe you get it in malicious damage also. So far as I know, it is done in malicious damage, without an inherent power being written in. That is why I want to make inquiries as to whether or not it is inherent.

(Cavan): It certainly does not appear from this section that the court has power to order him to pay. It says it will take it into account.

If the damage were taken into account and a correspondingly increased penalty were imposed because of non-compensation, it would certainly on the face of it be unjust to allow a right of action even though in practice that right of civil action would rarely be rewarded because it is fruitless to pursue these people. On the face of it it would appear to be unjust Deputy Cooney has a point but, before I can answer "yes" or "no" one way or the other, I will have to inquire whether that power is there. I will inquire and we can sort it out on the Report Stage.

(Cavan): The Minister has met this in a reasonable way. The section provides that:

the court, in coming to a decision as to the penalty, may take the damage to property into account as if that damage had been caused by the defendant and may have regard to whether or not the defendant has compensated the owner in respect of that damage.

The Minister is quite right to look into this. There is no power there, unless it is inherent in the criminal code, and I do not think it is. I do not think there is any power providing that damages be paid by the offending party to the aggrieved party. But it is obviously an invitation to the court to impose a stiffer penalty if compensation has not been paid than it would if compensation had been paid. As Deputy Cooney pointed out, the next proviso confers on the owner the right to take civil action and recover damages. This certainly needs looking into. It is a pity the Minister did not see fit to accept Deputy Cooney's previous amendment which sought to confer only on a member of the Garda Síochána the right to use physical force either to get into the property or to get the offenders out. I hope I made the case pretty clearly on that amendment. I invite the Minister to consider this again—on occasion he has been reasonable; on occasion he has been unreasonable— between now and the Report Stage. If he does he will, I believe, see the force of the arguments put forward. Really what we are doing here is inviting the owner to take the law into his own hands. To take the law into one's own hands in an explosive situation, when tempers are high and reason cannot be expected to prevail, creates a very dangerous atmosphere. More harm could be done by encouraging the owner to take the law into his own hands. I agree with the Minister this does not confer any civil rights on the owner.

Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m., on Thursday, 3rd June, 1970.