Vol. 292 No. 5
We will deal first with amendment No. 1 in the name of Deputy G. Collins. It appears that this amendment is an alternative to section 1. Discussion on it should dispose of the discussion on section 1. Therefore, I suggest we debate the amendment and section 1 together.
NEW SECTION
I move amendment No. 1.
In page 2, before section 1, to insert a new section as follows:—
"1. —(1) Unless previously terminated under subsection (2) of this section, this Act shall continue in force until the expiration of twelve months from the date of the passing thereof unless the Oireachtas otherwise determines and shall then expire.
(2) The Government may by order declare that this Act shall expire on a specified date being earlier than the expiry date of twelve months from the date of passing thereof and in that case this Act shall expire accordingly."
Before I discuss my amendment I suggest we adjourn for 20 minutes for tea.
, (Cavan): I was about to suggest that I sit in for the Minister for Justice for a few minutes to allow him to get his tea; otherwise he will have been here until 10.30 p.m. without a break.
We are very anxious about the rights of all persons detained in this House.
Business suspended at 6.45 p.m. and resumed at 7.15 p.m.
In relation to the Emergency Powers Bill, this first amendment which we propose would have the effect of limiting the operation of the Bill, if enacted, for a period of 12 months. Of course, it would give the Government the opportunity if they so wished at the conclusion of the 12-month period to bring before this House and the Seanad draft legislation to continue the Emergency Powers Act in force for a further 12 months. This is in contrast to the position taken by the Government in the Bill as it stands. The Government propose that the Bill may continue in force for as long as the Government wish solely by order of the Government. Therefore, I find it difficult to understand the Government's position.
The Emergency Powers Bill is consequent upon the state of emergency having been declared by a resolution passed in the Seanad and in this House last week. The only precedent we have is the state of emergency which was declared by the Oireachtas in September, 1939, consequential upon which the Emergency Powers Act, 1939, was passed. Section 13 (2) of the Emergency Powers Act, 1939, provided:
Unless previously terminated under subsection (3) of this section this Act shall continue in force until the expiration of twelve months from the date of the passing thereof and, unless the Oireachtas otherwise determines, shall then expire.
The subsection referred to enabled the Government to declare the Emergency Powers Act to have expired at an earlier date but did not give the Government the power to continue it in force. If one looks at the volumes of Statutes from 1939 and 1940 onwards one sees a series of Emergency Powers (Continuance) Acts which were necessary to continue the basic Emergency Powers Act, 1939, in force. I find it difficult to understand why the Minister wishes to change the position now or, indeed, what his motive is in refusing to give to the elected members of Oireachtas Éireann the power and the annual choice of deciding whether or not the Emergency Powers Bill, if passed, should be continued in force. It is useless to pretend that the powers given to the Oireachtas under section 1 (3) of the Bill as it now stands could equate in any way with the automatic expiry of emergency powers legislation unless renewed by the full vote of this House.
Last week I said that I did not trust the motives of the Members of the Government, individually or collectively, in relation to the alleged state of emergency and the Emergency Powers provisions. The attitude of the Government in relation to the proposed amendment strengthen my distrust. One has to bear in mind in relation to this Emergency Powers Bill that, being a Bill expressed to be for the purpose of securing the public safety and the preservation of the State, and being passed consequent on the state of emergency declared, it enjoys extraordinary constitutional protection in that its provisions are not subject to review by the courts. This is one of the reasons why we wish to have an annual review of the legislation by the Oireachtas and why we feel the desirable way of doing this is to use the precedent of the 1939 legislation.
The second comment I wish to make in that context is that last week the Leader of the Opposition specifically asked the Taoiseach whether any further legislation was already in contemplation by the Government apart from this Emergency Powers Bill. No reply has been given to that query. In the light of recent interviews given by Members of the Government who are, presumably, aware of the doctrine of Cabinet collective responsibility when giving these interviews, it seems all the more imperative that any emergency powers legislation should have built into it an expiry date unless renewed by the Oireachtas.
The third comment I wish to make in this context is that last week in the Seanad the Minister for Justice specifically stated that he would be open and receptive to any reasoned amendments to either of the two Bills currently before the House. It seems to us on this side of the House—and I believe it would seem to any fair outside observer—that this is a reasoned amendment on our part. In the light of the Minister's assurances it seems somewhat odd, if not sinister, that his colleague the Minister for Defence yesterday afternoon—presuming that he also is aware of the doctrine of Cabinet collective responsibility—said the Government would not accept any amendment, and I stress any amendment, to any of the sections of this legislation.
It seems that one or other or possibly both gentlemen, the Minister for Justice and the Minister for Defence, are not accurate in their statements for public consumption in relation to the intentions of the Government and in relation to this legislation. I suppose this is deliberately so. It is possible that communications between them may not be as good as they should be. Perhaps neither understands what the other intends to do.
We do not write letters to each other such as the Deputy wrote to his colleague on his right.
That is the way to do these things.
We could have a great deal of discussion on that. It is the proper way of doing these things.
With their kind of mentality they assume those that come after them will be as low as themselves.
I have no regrets about writing those letters. If again in Government I would consider doing the same thing if I felt it necessary.
It will not arise.
When the change of Government takes place——
No.
It can happen. The Deputy should not run away with himself. When it does happen matters of Government importance or Government documents will not be used in the way the Minister for Posts and Telegraphs used them, or as the Minister for Justice tried to use or partly use documents in the other House.
It must be regarded as frightening that we have the Minister for Justice with quite a number of policemen and the Minister for Defence with what he regards as a private army, and we have not got the co-operation we should have between those two gentlemen. One says he and the Government are prepared to accept reasoned amendments and the other says: "Not an inch". He nods. He did say it and he means it. Perhaps the Minister for Justice is calling his colleague the Minister for Defence a bit of a Yahoo for saying things like that, and that he himself will accept reasoned amendments. I do not know. It is time they made up their minds as to what they are doing.
Getting back to the amendment, if I may, I believe the case for the amendment in my name is a fairly good case. I am taking the only precedent that exists and I am asking that the same procedure should now apply.
I should like at the outset to advert to the same point as has been raised by my colleague Deputy Collins, that is, to inquire from the Minister for Justice and the Government as to their approach to the putting forward of amendments by the Opposition. This is of great importance to this Parliament, to the Oireachtas. This is an occasion on which there is a special obligation on the Government to listen carefully to what we on this side of the House have to say about this legislation. It is an important constitutional occasion on which the Government should endeavour, if at all possible, to bring the Opposition along with them and try to meet any reasonable and sensible objections the Opposition put forward.
It is the Government who are emphasising the serious emergency nature of the situation. Surely if that is so, there is a very serious and onerous obligation on them to endeavour to see that the legislation going through the House has the widest possible public support. That public support can best be indicated by some sort of support in this House.
It is disconcerting for Members of the Opposition and I am sure for the general public to perceive the unco-ordinated approach by the Government to this matter. I am not talking with any second-hand information or any hearsay evidence; I have heard the Minister for Justice and the Minister for Defence express totally different viewpoints in regard to amendments to this legislation. The Minister for Justice, interviewed on the national television network, clearly stated that he was open to consider amendments put forward, to consider them on their merits, and if they were reasonable, to accept them. I also heard the Minister for Defence in this House state equally categorically that the Government have no intention of changing one iota—I think they are his exact words—of this legislation.
What are we in the Opposition to think in that sort of situation? I suggest that that is not the only contradiction that is apparent in the approach of different members of the Government to this legislation. Indeed, individual members of the Government are changing their own attitudes in relation to the legislation. There is a fundamental dichotomy between the attitude of the Taoiseach when he introduced the legislation and things which the Minister for Posts and Telegraphs and the Parliamentary Secretary to the Taoiseach subsequently said. There is a further contradiction between the attitude taken by the Minister for Posts and Telegraphs to the Opposition on one day and the different attitude he takes on another day. I suggest that in the public interest this unco-ordinated approach by different Ministers to the situation is to be deplored.
The Fine Gael Party, in particular, have always put themselves forward as the parliamentary party, the party to whom the democratic process was all important, that they cherish that process more than anybody else. Indeed, there was always a slight suspicion that Fianna Fáil were not really fully and wholeheartedly committed to parliamentary democracy.
Slightly constitutional.
It is a long time ago since that was said. There is the implication consistent in Fine Gael propaganda: that they are the true blue devoted, dedicated parliamentarians. One would not think it by the empty benches we see in front of us day after day when important measures are being discussed in this House.
The blue part of it is correct.
Fine Gael have consistently purported to be that sort of party. In that event, are they not prepared to recognise in legislation of this fundamental constitutional importance that the Opposition have an important part to play? Will the Minister for Justice not admit that, if we put forward an amendment here and can persuade reasonably-minded people that our amendment is reasonable and acceptable, he will accept it? Is the Minister prepared at this stage of the debate to acknowledge that, or are we wasting our time? Would we be better at this stage to say to the Government: "You have the voting power, you are not open to reason, you will not listen to any arguments we put forward. Here is your Bill, take it and we will all go home". Is that the situation that confronts us? Is the attitude of the Minister for Defence the Government's attitude? Are the Government prepared to listen to reasoned argument from this side of the House and accept reasonable propositions, fully supported by logical argument on our part? It is important that we should get that straight at this early stage of the Committee Stage debate on this Bill.
It is very necessary that the Opposition should outline clearly for the benefit of the general public what exactly is involved in our putting down this amendment to section 1. I want to emphasise that there is a matter of principle involved here and a very important principle. This is not just a matter of improving the drafting of this Bill; it is a matter of parliamentary procedure, of the rights and standing of this Parliament as the representative of the people, of the balance which has to be preserved in any parliamentary democracy between the power of the Executive and continue these extra-constitutional powers ad infinitum. the rights of Parliament. That is involved in the amendment we have tabled. Section 1 as it stands provides that once the Bill becomes law the whole question of the continuing in force of this extraordinary power of tension moves from the Oireachtas and becomes vested in the Government. It is important that everybody should understand that. If section 1 in its present form stands part of the Bill then operative power in regard to the continuance of these powers moves out of this House and becomes a strictly Executive function.
The Government will be empowered to extend the provisions of this Bill indefinitely by order and not by an order which will have to be passed by Dáil Éireann. This Bill and the extra-constitutional powers of detention which it initiates can be extended by the Government by a simple order which, unless it is set aside by the Dáil specifically, will remain in force. If the Bill is passed in its present form we can in effect say that this is not temporary legislation, that in fact it is permanent legislation to all intents and purposes.
I wish to draw the attention of the House and the public to the absurdity of what the Government are proposing in this regard. The Government have come before the Oireachtas with a constitutional resolution and a piece of emergency legislation in order to achieve this seven-day detention power situation. By asking the Oireachtas to pass an emergency resolution declaring a state of national emergency and bringing in a Bill, they are acknowledging the exceptional nature of what they propose.
Having given that initial acknowledgment of the exceptional and unique nature of their proposals they in this first section totally dispense with that approach. Having recognised the reality of the situation, that they are asking for something exceptional and extra-constitutional, they then proceeded to incorporate in section 1 a provision which gets the Oireachtas out of the situation altogether and enables them to I should also like to make this point. The Minister for Justice, in defending other proposals in these two pieces of legislation, can argue that what is proposed is necessary to enable the Garda to operate effectively. He can say that if we curtail the powers given in any section we are interfering with the efficiency and effectiveness of our security arrangements. No such argument applies in the case of this amendment. This amendment, let us be clear about it, is related strictly to parliamentary procedures. If the Government were to accept this amendment on our part it would not in any way interfere with the powers and capacity of the Garda Síochána or indeed of the Army. We are concerned in this only with protecting the rights of this Oireachtas as representative of the people. We want to ensure that this Oireachtas keep some grip over the situation, and we suggest that our proposition is entirely reasonable and should be an entirely acceptable one.
We want to be logical about this. We are in effect saying to the Government: "If you think it is necessary for this Oireachtas to pass legislation in order to initiate these powers you should acknowledge that it should be equally necessary for the Oireachtas to renew them every year. Otherwise the section is a fraud, it is a sham. You should not bother mentioning 12 months in section 1 because you are making this legislation permanent to all intents and purposes".
Deputy G. Collins has pointed out that in previous emergency legislation this provision was always incorporated. The Oireachtas, perhaps unwillingly, granted these emergency powers to the Government of the day because of the exigencies of the situation; but in doing so they said: "You have to come back to this Parliament every 12 months and report and ask this Parliament for a renewal of these exceptional extra-constitutional powers". What we propose in this amendment is a very important parliamentary and constitutional safeguard. If the Government do not accept it they cannot put forward the argument that they are refusing to accept it because of security considerations. The only reason they can put forward for refusing to accept it is that they do not want to have to come back to Parliament. They want to defy the Oireachtas. They do not want to have to justify the continuing in operation of these extraordinary powers.
It is important that we establish that clearly, that the normal argument open to the Minister in relation to other provisions in this legislation does not apply in this regard. If the Fine Gael Party and the Minister for Justice are the devoted Parliamentarians they have always held themselves out to be, I believe they have no alternative but to accept this amendment, because it is a simple parliamentary, constitutional safeguard we are seeking. Once the legislation is in operation its powers cannot be diminished in any way by the Government accepting this amendment. But we are asking them to go to the parliamentary trouble of coming back to this Oireachtas and asking for a renewal of this exceptional mandate which they are seeking.
I support the amendment moved by Deputy G. Collins and what he and Deputy Haughey have said in relation to this. One would have expected and hoped that the Minister would have intervened at the very start when the amendment was moved to say he was prepared to accept it. Indeed, if he meant what he said in the Seanad and on television, that he was prepared to accept any reasonable amendment, he would have done that.
I am prepared to consider reasonable amendments and if they are acceptable to accept them. I cannot accept amendments in advance. I will deal with them.
I assumed from the Minister's silence that he was not accepting this. If he is he could tell us and it would save a lot of time, delay and trouble.
I cannot conceive of a more reasonable amendment than this one. Deputy Haughey has clearly pointed out the significance and the nature of it. What must above all else in relation to this be borne in mind is that the amendment, as Deputy G. Collins has said, constitutes, in fact, section 13 of the Emergency Powers Act, 1939. That was passed early in September, 1939. A genuine declaration of emergency had been passed by this House and by the Seanad at that time. I emphasise "genuine" in contrasting it with the pseudo one forced through this House last week because there was a genuine national emergency at the beginning of September, 1939. Europe was just descending into total war which, unfortunately, was to last for six years and this country and every person in it was in terrible and mortal danger and was saved from that danger by the skill of Éamon de Valera and the Government which he led throughout those six years.
Notwithstanding the obvious character and rather terrible nature of the genuine emergency that existed in September, 1939, the Emergency Powers Act, which was passed that day and was so patently necessary, did not contain any section enabling it to be kept permanently in force by order of the Government such as this Bill contains. Instead it contained a provision in section 13 which is reproduced precisely in our amendment which would enable the Emergency Powers Act, 1939, which was a very serious and necessary measure, to continue in force for only 12 months at maximum, or that it would expire earlier by Government order or if the declaration of emergency ceased or went out of effect before then. We had in 1939, in those terrible times therefore, a very definite limitation on the length of time for which that necessary Act of that year could remain in force. The only way it could be continued beyond 12 months was by the Government of the day coming back here into this House and the other House and relegislating through the full legislative process for it to be continued in force for a further period not exceeding 12 months. That process went on right through the war and the last Bill was passed in the summer of 1945 just before the end of the war and it expired on the 2nd September, 1946.
The position with this Bill, if it is enacted with this section 1 as it stands if our amendment is not accepted, means that, without coming back to the Oireachtas for consent or permission, the Government by order made privately can continue it in force and the only way that the Oireachtas have of even attempting to discuss it here if these orders are made is to put down a resolution seeking to annul the order within 21 sitting days of when it is made. We had experience here that if orders are made during the summer recess 21 sitting days not infrequently can bring us virtually up to Christmas and there is no obligation on the Government to provide time for discussion of the motion until the 21st day. Of course when we come to the 21st day and the Government, because they cannot avoid it have to provide time for the discussion of such an order, it is not unreasonable for us to assume in the light of history over the last three years that that motion will be guillotined, that perhaps two or three hours will be allowed for it and if the discussion is not finished in that time, even though the Opposition and Deputies generally might want to discuss it further, the Government will come in here, as they have done on dozens of occasions over the last three years and guillotine it and that is the end of it—and that is democracy.
Why, if at the beginning of a terrible war and right through the whole six-year history of a terrible war the Government of the day could put in their Emergency Powers Acts provision for relegislation every year in order to give both Houses of the Oireachtas the fullest opportunity to discuss the operation of the Act, why if at a terrible time of mortal danger like that, that could be done, why can it not be done now in this pseudo emergency we are now living under? The Government give no answer to that. The only answer is that the Government have not the guts to come back in here and ask this House to renew the extraordinary provisions which are in this Bill for the detention of citizens without charge or trial and for the removal of the protection which the Constitution of Ireland grants to all its citizens. They want to have the minimum discussion and they want this Bill and the very unusual and serious powers that are contained in it renewed and renewable every year by the private act of the Government themselves, by affixing their seal to a short order keeping it in force for 12 months.
There is no justification at this time for this. There was never any justification even in the horrors of the Second World War for not seeking legislative renewal, and that was a very real and terrible emergency. The Government of the day had the guts to come back here and face the Parliament and the representatives of the people to renew those powers. They were not ashamed to ask for renewal because when that Bill was put through the House the Government knew that the powers would not be abused, and they were not abused. They were very stringent powers, but they were necessary. We now have this so-called emergency and we have this Bill which may contribute nothing to the solution of the problem and may even exacerbate the somewhat delicate situation, but the Government feel that it is not right to come back to the Oireachtas to ask for a renewal of this after 12 months. It can all be done privately by the Government making an order, and all the Oireachtas can do is put down a motion within 21 sitting days which will be guillotined down to a couple of hours to prevent a discussion of it. The net effect of that is to continue in force more or less permanently the abrogation of the constitutional rights of the citizens of this country.
The constitutional rights of citizens should only be taken away in extreme circumstances. There is only one other occasion on which it was done, the 2nd September, 1939. That sort of situation was what was envisaged by Article 28 of the Constitution. The framers of the Constitution would, no doubt, be horrified if they saw the one loophole they left a Government for use in time of grave national crisis being abused as it is today in order to introduce legislation at a time when there is no national emergency arising from defects in our law. Certainly there is a national emergency in relation to the economy. I cannot accept that the Government are genuine in the protestations they made when this legislation was originally announced, and that they have made subsequently, if they do not accept this, which must surely be the most reasonable of amendments ever proposed to any measure in this House. It is patently proper that it should be accepted and that this limitation should be there, and that if it should be necessary in the opinion of the Government of the day to extend these extraordinary powers and the derogation of the citizens' constitutional rights for longer than 12 months, then it is this Oireachtas that should legislate for a further 12 months' derogation of the constitutional rights of our citizens.
In column 275, Volume 264 of the Official Report for the 29th November, 1972, an amendment was put down by the present Minister for Justice to the proposal that the Offences Against the State Bill, 1972, be read a second time. The amendment read as follows:
That Dáil Éireann declines to give a Second Reading to the Bill on the ground that it contains matter which is unnecessary and excessive and which is repugnant to the basic principles of justice and liberty and the long established rights of citizens.
I do not think any one sentence could more clearly or more succinctly express what is being done in this Bill. That description is very true of what the present Minister for Justice asks this House and this country to accept so unnecessarily. The whole country knows it is unnecessary, and still it is being steamrolled through, with a display of arrogance which we have come to expect, unfortunately, from some Ministers, but which I thought that the present Minister for Justice would at least have the intelligence not to exhibit. Unfortunately, the characteristics of some of his colleagues seem to be rubbing off on the Minister. If this House is to allow the derogation of our citizens' basic rights and liberties as guaranteed in the Constitution of Ireland to be permanently derogated from, as this section proposes, then I think that this country can look forward to a very difficult time in the years to come. If there are not enough people of principle in this House to stand up and to stop this permanent derogation of the rights of our citizens, I am afraid the outlook for this House and this country is a sorry one, not just in this field but in many other fields.
The debate that has taken place so far has been on a number of planes. It has been related to the amendment, the justification for it, and it has been on a political plane. Deputy Collins raised a point as to whether we can expect any more emergency power Bills, Deputy Haughey spoke about what he said was a contradiction between myself and my colleague the Minister for Defence, and Deputy O'Malley was digging sweetly into debates of two or three years ago. Before I deal with the political points that were raised I will deal with the amendment. Although their thoughts were obscured by making political points I understood from the speakers that the principle which is being sought to establish in the amendment was parliamentary review, a parliamentary check over an Executive. I am puzzled why Deputies have failed to recognise that that principle is written into the Bill as drafted. The Bill as drafted says that it continues only in force for 12 months, unless the Government by order continues it, and then it goes on to say—nobody seems to have read this except Deputy O'Malley who interpreted it in a way to suit his arguments—that every Government order extending the powers of this Bill shall be laid before each House of the Oireachtas as soon as may be after it is made. When the Government extend the life of the powers under this Bill, they must lay the order immediately before the Oireachtas, and if a resolution annulling the order is passed by either House within the next 21 days in which that House has sat after the order has been laid before it the order shall be annulled accordingly. There is a clear power for the Oireachtas to review the action of the Government in making the order continuing the powers in force.
Deputy O'Malley dealt fully with that situation.
The principle that the Opposition have been urging here is parliamentary review, and that their amendment is reasonable to give recognition to that principle. This principle is already recognised clearly in the Bill before the House. It is clearly recognised that the order must be laid before the House and it can then be annulled. There is a time limit within which that can be done. It is only right that that should be so so that there will be certainty. Deputy O'Malley's answer to that is that there might not be time provided by the Government to debate the matter. Having regard to the fact that there has been more Private Members' Time in the past three years of this Government's office than in the previous 16 years, an argument alleging that no time would be made available comes badly from the Opposition.
The essential point I want to make on the amendment is that the principle of parliamentary review is already in the Bill and is devised in a much more satisfactory way to ensure certainty and continuity of this measure in the emergency that we have. I should love to think that in 12 months' time the emergency would be gone and that we could afford the luxury of this exercise of political point-scoring that we have had here for the past ten days. Unfortunately, the political horizon does not seem that hopeful and it seems to me that the emergency we face, the troubled times that we face will continue somewhat longer than that. The proper way to deal with the situation is to give the Government charged with the Executive authority of the State in enforcing laws passed by this House the primary power to continue this emergency power in operation for a further 12 months subject to parliamentary review. It is a matter then for Parliament to review it. But the principle of parliamentary review which the Opposition seek to express in their amendment is already in the Bill. I want to assure Deputy Collins that what the Taoiseach said—and I said it also—was that as of now no further emergency power is contemplated. But I also said that I cannot see into tomorrow; neither can Deputy Collins and I would hope there will be no need for any further emergency power but, as of now, none is contemplated by the Government. I say that categorically.
Deputy Haughey introduced a discordant political note into what I thought would be a dispassionate debate on the merits of the Bill and the amendments. The discordant note was struck in trying to suggest that there was some contradiction between the position of the Minister for Defence and myself. He was echoed by others who were talking about collective responsibility and contradictory statements being made by Ministers. If we are to have politics, let us have politics. I think that allegations of contradictions in that sense come very badly from a person who was a party to the most notorious contradiction between Ministers in the history of this State and I am not the authority for that: a judge of the Supreme Court is the authority for it.
Answer the point.
The answer to the point is that I am prepared——
It is lack of an answer——
When we have a political debate Deputies opposite do not like it. The point is that, as I have already indicated, I am prepared to consider reasonable amendments but as the Minister for Defence indicated the principles of this legislation have been established, set down and decided on by the Government and no Government so far as I am aware have decided on a matter of principle and then amended away that principle—improve the implementation of it, the definition of it, the way of operating it by all means by amendment but not eviscerate it.
It is interesting to hear the Minister on this matter particularly in view of the quotation that was aptly presented to him in regard to his contribution by way of an amendment in 1972 to the Offences Against the State (Amendment) Act. It is very apt that it should be applied to this and that the present occupant of the post of Minister for Justice should be the man who could be quoted in 1972. Before coming to that, I want to say that all we have been talking about today and for part of last week derives from the effort of the Government in invoking Article 22 of the Constitution in order to set aside that part of the Constitution protecting the rights of individuals. Having taken from the public by means of the operations in regard to the motion under Article 28 of the Constitution, it is small wonder that we find the same Government now denying Parliament their rights. They utilised Article 28 to take away the rights of the people; they now utilise the whip and the feet of the people who support them to take away the rights of Parliament. That is what the Government are doing and it is not unexpected coming from a Government that have already trumped up a situation and the mockery that has taken place of resolutions going through the Oireachtas to conform to Article 28 in order to declare an emergency that never was. It is only to be expected, following that, that Parliament would be denied its rights in regard to the same operations.
Having said that, I want to say that I am amazed that in regard to the previous part of the package of which this is part and of which the motions were part there was no vote on Second Stage. I was led to believe that such a vote would take place; otherwise I would have been in the House to record dissent which I now wish to do on my own behalf and on behalf of my colleague, Deputy Keavney. We dissent from the agreement that apparently was reached here very quickly this evening without a vote to accept the Second Reading of the Criminal Law Bill. I want to say that; I am sorry to be so late about it but I was totally misled in regard to the matter; otherwise I would have appeared here to record my dissent.
The Deputy should now deal with the amendment.
So long as I can make it quite clear that is the situation. I can only be satisfied that I have been enabled, by the good grace of the Chair, to get on the record of the House my total dissent.
I come now to what we are doing and what we propose to do in section 1 for which the amendment proposes to substitute another section. The original section is wrong and, while the substitution would be less wrong, both, in my opinion, are wrong. Merely trimming the sails of what is totally wrong in section 1, by substituting a new section by way of amendment does not justify or make right what is proposed to be done in the section.
I find that I cannot support the amendment, much as I might like to show my displeasure at the original section proposed in the Bill, because I would not be a party to giving to the Minister even the reduced time that is sought for the emergency powers, the application of section 2. If there is no emergency—and there is no emergency—of a national character to justify the setting aside of the rights of our people then there is no justification for putting into effect all the provisions of section 2, no matter under what guise.
Looking at the provisions in section 1, disregarding my total rejection of the content or intention of the section, either as it stands or as it is proposed to be amended, it is a fact that here Parliament is being totally ignored and its functions totally usurped. No waffling by the Minister will controvert that fact. We have the situation now wherein section 2 remains in force for a period of 12 months from the passing of this Act. Section 1 provides:
(2) The Government may by order provide:—
(a) at any time when section 2 of this Act is in force, that that section shall continue in force for a period not exceeding twelve months from the commencement of the order,
(b) at any time when section 2 of this Act is in force, that that section shall cease to be in force on and from a date specified in the order.
In other words, while it is in force, it can by order be terminated. The most repugnant part of the section is subsection (2) (c) which provides that the Government may by order provide:
at any time when section 2 of this Act is not in force, that that section shall come into force again and remain in force for a period not exceeding twelve months from the commencement of the order.
The whole thing is a bit of a swizz. Subsection (2) (a) may by order continue for another 12 months or for year after year or it may cease to operate. Subsection (c) is the real stunner. If it is not in force it can be brought into force, by order, for 12 months and another 12 months and the Minister's defence of the charge that he is here bypassing Parliament and usurping its powers is that the order is subject to renewal and either House of the Oireachtas may, by resolution, annul the order within 21 sitting days from the date on which the order is laid before the House. We are not worried about subparagraph (b) but we are certainly worried about subparagraphs (a) and (c). Either one of the two Houses can annul the order. That sounds grand. It looks as if we are really recognising that Parliament, elected by the people, is supreme. That is not so here.
The order can be annulled by resolution of either House after 21 sitting days. If an order is made during the Summer Recess it could be Christmas or New Year before such a resolution could be passed. So much for the Minister's defence of parliamentary democracy. As Deputy Haughey said, Fine Gael held themselves out as the guardians of parliamentary democracy. They certainly did that in all the years I have been here and they jibed at Fianna Fáil as if Fianna Fáil's adherence to parliamentary procedures was in some way questionable. I listened to many highfalutin' lectures here from Fine Gael Deputies admonishing those of us not of that party about the sacredness of the parliamentary process and how important and necessary a part of democracy it was. Of course, they were in Opposition then. It is a different matter now when they are in Government. They can ride roughshod over parliamentary democracy and over the concept of Parliament being above and beyond party.
Parliament is, in fact, the people. It is from the people we derive what powers we have. This Government, dominated by Fine Gael, the great guardians down the years of parliamentary democracy, are now throwing out the window, without batting an eyelid, and with a cheek that it is difficult to conceive, parliamentary democracy. They do that blandly. Because of their phoney defence of parliamentary institutions over the years during which they held themselves out to be the guardians of those institutions, they now think they can throw parliamentary democracy out the window, the institutions and procedures they pretended to uphold when in Opposition but are now, with the authority of Government, actually opposing.
Can the Minister justify, more than he has attempted to do, this proposition? In the period that would elapse before the annulment of such an order, and it could be a very lengthy period, anything done during that period would still stand. If that is the Minister's regard for the supremacy of Parliament, then God help us while such a Minister presides over the Department of Justice. Perhaps he is merely fronting for a Government that forces him to do this. It is conceivable that he has no more liking for this particular section than I have. In fact, his dislike of this section would be in keeping with his past contributions to debate in this House. Perhaps he is being compelled to do this. If he is, all I can say is "God help him". If he is not, all I can say is "God help us". It is a total negation of the recognition of the authority of the elected Parliament of the people and is only capable of being brought before us in such a manner by the abuse of Article 28 of the Constitution and the motions that were thumped through the two Houses last week. It is a sad, sorry chapter now being written by this Government. But whatever way the package is presented according to the Minister for Defence not one iota of it will be changed. It is a sad package in three parts: knock the Constitution, knock the Parliament and, the result of it all, add on the Criminal Law Bill and knock the people. Why the hell do they not go to the people and ask them?
The Leader of the Opposition expressed worries about the calibre of Fianna Fáil candidates. We should like that problem to be settled.
That is only dodging the issue.
Deputy Blaney should keep to the amendment.
We will give them enough of that sort of thing if that is what they want. The Minister started it.
I did not start it.
The Minister started it.
Deputy Blaney started it.
The Minister started it.
Deputy Blaney on the amendment.
I will come to that again in a moment.
Deputy Blaney on the amendment.
We know the calibre of some of the people over there.
As to who started what there seems to be some concern.
I said it in the Upper House in the debate on the resolution and I say it again here: we will be quite happy to face the Irish electorate on this legislative package.
Those are the words of the Minister for Justice in this House in his introductory speech. All I am doing is suggesting that he finish the offer he made there and go to the country on it.
Deputy Blaney on the amendment.
With respect, Sir, it is pertinent to the amendment. I would submit that the Minister who comes in here talking about the package on which they are prepared to face the electorate is not prepared to do so. He is merely making the offer.
The Deputy should stick to the amendment.
He is merely offering knowing damned well he is not taking it up. Go ahead, get out and try it in the country.
The Deputy must keep to the amendment.
Go to the people who sent us all here and ask them about the package.
We cannot have Second Stage arguments again. We must keep to the amendment.
I am well aware of that. But this is a package. It is like the Sunningdale one but there are more holes in it.
As far as the Chair is concerned we have only one Bill and a sheet of amendments.
No matter how well intentioned may be the amendment one cannot cure the ills of that terrible lot, that is, section 1 of the Bill before the House. That section, which is totally wrong, cannot be made acceptable no matter how it is amended. The only way in which it would be acceptable in present circumstances would be to scrap it; in other words, the Bill should be dumped. Perhaps the Government feel that that would be more than their skin could contain. My notion is that if they had to do this again they would not start it at all. If they do not feel that they can, with any dignity, withdraw the Bill, they should scrap those dangerous proceedings, go to the people, and ask them, they are the bosses.
We are getting away again from the amendment.
Nobody could blame the Government for doing that. In fact they could be lauded for taking their courage in their hands and, as it were, putting their money where their mouths are. Instead of bumbling about going to the country go to the country.
Deputy Blaney should keep to the amendment.
The section is such that no attempted amendment could make it acceptable because the circumstances on which the whole thing hangs do not exist. The Government who find themselves in a cleft stick can get out of that by going to the people. I invite the Minister to keep that in mind.
The Deputy can argue against the section or in favour of the amendment but I would ask him to keep to those two.
Yes, Sir, but I am sure you will help me——
I think the Deputy's argument is that if the Government want to enforce this permanent legislation they should go to the people and get authority for it. That is a reasonable argument.
The House is at present dealing with section 1 and amendment No. 1 together.
It is an abominable section. Despite the best efforts of the people who put the amendment before us, it could not be amended by any device. There is no possible device by which it could be made acceptable because the basis on which it hangs does not exist; it is a phoney. It is, as has been said, a pseudo-emergency. Without the emergency there can be no Emergency Powers Bill. Without the Emergency Powers Bill there could be no section 1. Section 1 is such an abominable one that no brain is capable of amending it to the point at which it might be acceptable. Perhaps the Minister might take an honourable way out, put his money where his mouth is, go to the country and ask them what they think.
I have already indicated the reasons why I think this amendment is not necessary. Deputy Blaney probably was not listening to me or did not want to listen. He wanted to make certain points. The position on this amendment is that the principle of parliamentary review is already enshrined in the Bill, as drafted. That was conceded, to all intents and purposes, by Deputy Blaney because what he was complaining about was the possibility that the review might not take place. That is a matter for the House to decide. As I have said already, there has been more time given to the Opposition in the last three years than in the previous 16. It is beside the point to argue it on that question when there is a question of principle to be decided. The question of principle—that is the subject of the amendment—is the question of parliamentary review. Parliamentary review is already enshrined in the measure. That is the logical reply.
In the circumstances of this debate I am entitled to argue ad hominem in regard to Deputy Blaney. It is this, that for a person who is an avowed supporter of an organisation, one of whose objectives is the overthrow of this Parliament, it comes odd from him seeking to establish a principle of parliamentary review.
Again, on the question of this debate and the tone it has taken, political point-scoring has crept in. I was not the first to speak but I want to say——
What was that last thing?
But I want to say this, that if I am bitten I will bite back.
I want to ask the Minister——
If I might, at this stage——
I want to ask the Minister to withdraw the allegation he has just made which is not true.
If the Deputy denies that it is true—I said the Deputy——
The Minister can either withdraw it or shut up.
I did not make any allegation. I said the Deputy was an avowed supporter of an organisation dedicated to the overthrow of this Parliament. Is that wrong?
Spell is out, you rat.
Is what I have said wrong? I will withdraw it if the Deputy says it is wrong.
Order.
Let the Minister name the organisation.
The IRA.
The Minister is a liar.
Withdraw that.
Let us have an orderly debate. Deputy Collins.
On a point of order, I heard Deputy Blaney say that the Minister was a liar. That is an unparliamentary remark.
Some harsh words have been said in the last few minutes. Of course it is wrong to attribute to any Member of this House that he is a liar and it should be withdrawn.
May I who have seldom transgressed the order of this House, repeat my request that the Minister withdraw what he said about me and I will gladly withdraw what I said about him?
If the Deputy says that what I have said about him was wrong I will gladly withdraw it.
I have asked the Minister to withdraw it.
If the Deputy says that what I said was wrong I will gladly withdraw it.
I am asking the Minister to withdraw it.
This kind of wrangling must cease.
We must have some protection from the Chair. We cannot have a Minister making a statement such as was made now without any evidence that what he says is true.
The Deputy in his own statements in this House has stated that he was one of the organisers of the Provisional IRA.
That is not a withdrawal.
On a point of order——
If the Deputy denies what I have said——
Order.
On a point of order, I asked the Chair to deal with the fact that it was said in this House that the Minister was a liar. I heard that statement and I think it should be withdrawn. That is a proper point of order.
It is the normal practice when an allegation of that kind is made that it be withdrawn.
May I ask, as I did when I got to my feet after the Minister made his unwarranted allegation, is he going to withdraw that allegation?
The Deputy is persisting in putting that question. The Chair cannot be of further assistance to him. The Deputy has had a reply.
I have had no reply except confirmation of the allegation.
It is not normal to withdraw something unless there is an allegation that what was said was untrue. If the Deputy says that what I said was untrue then I will withdraw it.
That is what the Minister for Defence is talking about. He has said that because I called the Minister a liar I must withdraw it. All right, let me rephrase it. What the Minister has said is untrue.
Then I withdraw my statement.
Then I withdraw my statement that the Minister is a liar now that he is telling the truth.
The Deputy should withdraw what he said.
It has been withdrawn. Deputy Collins.
It is very unfortunate that the debate has gone the way it has in the last 30 or 45 minutes. In the last few days many of us believed that because of the important nature of the legislation we should approach it in a reasonable fashion. We believed it to be the best course to approach it without becoming emotional, without losing our tempers, without making personal attacks or abusing personalities in the House. I had hoped that would be acceptable to everyone here.
If there was confusion about who said what, it is a fact that the Minister for Justice in the course of the debate in both Houses said he was prepared to consider reasonable amendments. It is also true, and the Minister for Defence has not denied it, that he said that the Government would not change the legislation one iota. Anything that is amended is changed. I know there are principles in the Bill and I recognise that one does not change one's principles. That is fair enough. The Government can stick to their principles and we will stick to ours.
The amendment I put forward is a most reasonable one and I made a case for it in a very simple way. When there was a declaration of a state of emergency in 1939 there was the Emergency Powers Act of that year. That Act was in operation for 12 months and at the end of that time the Government of the day had to come back to the House. The matter had to be discussed and the legislation had to be passed by both Houses of the Oireachtas before it could be put into operation for another 12 months. That is the only precedent we have with regard to legislation of this kind.
The Minister is now changing the system to a different system. He will have this legislation renewed by order of the Government. He is trying to maintain that we can come here and discuss it in full but he knows as well as I do that is not so. We can put down a motion to annual the order. The arguments about finding time to discuss the order annulling the legislation have been made more than once and I do not want to repeat them but the Minister cannot expect the House to believe that an order to annul this legislation and an opportunity to discuss it and to pass new legislation is one and the same thing. It is not so and I have spelled this out clearly in my amendment.
I am very sorry the Minister lost his temper at least twice since we resumed at 7.15 p.m. If he was upset by a comment of Deputy O'Malley when he read for him an amendment the Minister put down in regard to legislation in 1972 which Deputy O'Malley was steering through the House, then I would say to him: "so well it should". I suggest there is no need for the Minister to launch a personal attack on Deputy Haughey or on Deputy O'Malley. If he disagrees with the points made that is all right; we cannot go across and twist his arm or push him to do what we want.
There was confusion during the debate. With due respect to the Minister for Defence, he confused the issue by saying what he did. We were not scoring political points. We were only seeking clarification when we raised the matter and there is nothing wrong with that. The Minister for Justice is responsible to the Government for steering legislation through the House and when he makes a statement I am prepared to accept it for what it is worth. I am prepared to examine it further and see what is in it but when that statement is contradicted by one of his own, naturally we must question it. That is not being political. It is seeking clarification, nothing else.
Seemingly the Minister has decided to reject our amendment. All right. If the Minister wants to refuse the amendment he is fully entitled to do so but if we are to get through this Bill and other legislation in the way that we should do, in a reasonable and fair manner without shouting, roaring, ranting and raving, we should be careful in the way we approach it. I am not going to attack the Minister personally or say any of the nasty things that can be said about anyone because it will get us nowhere. I will not remind the Minister, his colleagues or any other Member of the House of what they said in 1972 or 1973 or what they did in 1969 or 1970. All of us are elected Members of the Irish Parliament and I hope all of us are responsible and reasonable people.
If the Minister is not accepting what we want him to accept, namely, the system that operated on the only other occasion when we had an Emergency Powers Act in operation, if he does not want to accept the system that was there for the renewal of that legislation, then let him say so. He gave us his arguments; we do not accept them but that is all right. If the Minister does not see his way to it we will have to vote on the matter.
This debate has developed into the kind of debate one would expect in a debating society in a college or in a small town. What I said yesterday I stand by, which is that the principle of this legislation will not be changed——
No.
This Government have decided. We accept collective responsibility that this package is one that will see to it that the IRA or any other subversive organisation that is killing and bombing people, that is stopping the advancement of this State, will be put down and "put down" is the operative phrase. The Opposition have seen fit to take two debating points and to say that my colleague said that reasonable amendments would be considered. Immediately the untruth was propagated that an amendment must constitute change. There is no conflict between the Minister for Justice and myself or between us and the Government in regard to this legislation. All 15 members of the Cabinet are adamant that subversion must end and in that regard not one iota of the package will be changed materially. People opposite have given to something a meaning it does not have. Having said that, if there is a way in which the Opposition can demonstrate to us that the mechanics of dealing with the legislation can be improved during Committee Stage, the Minister is right in saying that he would consider any such suggestion.
The package before us is that decided on by the Government. We stand clear before the people in regard to it but the same cannot be said of the Opposition. On them there has been suspicion since 1970 and all the debating points that they can think of will not change that situation.
The Minister for Justice accused me of introducing a discordant political note. I do not know what sort of debating parliament this is supposed to be if I am to be castigated for introducing a discordant political note into a debate on a measure of this importance. I do not think I am being politically discordant in asking the Government whether they are prepared to accept any amendment. That was the question I addressed to the Minister. Are the minds of the Ministers opposite closed completely to any suggestion or proposal from us? Regardless of how he may quibble now or of what twist he may give to his words, the Minister for Defence has made the straightforward statement that no change will be made, that this legislation will not be changed one iota.
There was no twist involved. The legislation will not be changed. But if the Opposition can put to the Minister for Justice some reasonable way by which its mechanics could be improved, he would consider their suggestion.
Order. Deputy Haughey without interruption.
I should prefer the Minister for Justice to answer the specific question I put to him. There is no point in our putting forward arguments to the best of our ability in favour of carefully thought out amendments if there is no possibility or hope of their being accepted by the Government. I asked a specific straightforward question at the commencement of Committee Stage. Was it not a legitimate political question? By way of reply it is not fair of the Minister to continue to launch these personal attacks on my integrity. By behaving in this way he demeans himself. The Minister will be well advised in the course of this and other debates to shed this sanctimonious unctuous self-righteousness in which he has clothed himself and accept that on this side of the House there might be honest views held legitimately and with integrity. In this way he would increase his stature as a Minister and, perhaps, would find greater public support for what he proposes. During debates here I have always endeavoured to impose some restraint on myself. I have sought to avoid personal argument so far as that was possible although from time to time I am tempted to break that restraint. In this connection I did not refer back to 1970, to 1972 or to anything the Minister may have said on two other occasions. Rather, I directed my arguments to the amendment we are putting forward.
The Minister must admit that there is a fundamental difference between asking the Government to come forward and legislate again in 12 months time and simply enabling them to extend by order the legislation.
There are three different ways in which this legislation can be extended on the expiration of the 12-month period; one is by asking the Government to come back and legislate again, the other is to make an order which must be moved and accepted by this House while the third and least effective way is by granting the Government power to make an order which stands unless it is over-ruled positively by the House. In regard to this important and extraordinary constitutional legislation the Government have chosen the least effective of those three methods from the parliamentary point of view, namely, the procedure whereby they can simply make an order which stands unless somebody in this House moves to over-rule it.
That is the point we are making and if it is being discordant politically to make that point then, in the interest of our parliamentary procedures, we must be discordant politically, however much that upsets the Minister. I thought and I considered it to have been a legitimate aim to get a co-ordinated approach from the Minister but he objects to my pointing out discrepancies in what individual Ministers say. Do we not continually day after day hear the Taoiseach and some Ministers accuse us of being divided, of having no unanimity in regard to what we propose? Because I seek to get from these Ministers some co-ordinated approach to our amendments I am accused practically of treasonable activities. I could point to further discrepancies between what Ministers have said. For instance, the Minister for Foreign Affairs said today that when these proposals were being discussed in Cabinet there was no suggestion in anyone's mind that the proposals would be used in any way to impose censorship on newspapers, that this never entered into anyone's thoughts or into the discussions which took place. Nevertheless, the Minister for Posts and Telegraphs revealed that at all times he considered that section 3 of the Criminal Law Bill could be used to impose censorship on the press.
The Deputy is straying from the amendment.
I am dealing with the specific point of inconsistency in the approach of Ministers.
I understood the Minister for Posts and Telegraphs to deny that.
He withdrew it, having made it very positively.
He denied it.
He withdrew it. That is different. There is ample evidence available to us here to indicate separate approaches to this package by individual members of the Government but I am not concerned with that. It is an undesirable state of affairs because in a matter of this sort there should be a straightforward co-ordinated approach by every member of the Government. But I am concerned with finding out what is the attitude to amendments. This is particularly relevant to the amendment before us. The Minister for Defence has come in to justify the stance of the Government, to tell us that the reason for the legislation is the necessity to put down violence and other unlawful activities but that is not what is concerned in this amendment.
Would the Minister admit that the amendment before us does not affect the legislation but that it affects the power of this Parliament? That is all we are concerned with in this amendment. If Fine Gael have particular dedication and devotion to Parliamentary procedures I cannot see why in this regard they are turning down the amendment. In rejecting it they are undoubtedly diminishing in an unnecessary way the power of Parliament. There is all the difference in the world between the Government having to come in here and put legislation through this House which gives us, the Opposition, the opportunity of putting forward arguments, and the Government being enabled to do this by order which need never come near this House. Admittedly, if the Opposition moved positively we could be given some restricted time to debate the order, but that is an entirely different procedure or mechanism from that for legislation which has to go through the full parliamentary process here.
I want to make just one point which is very much in line with what Deputy Haughey has said at the end of his speech. In the Minister's reply previously he stated that in subsection (3) of section 1 this matter could be brought before Parliament. Deputy O'Malley, Deputy Collins and other speakers on this side of the House pointed out that we were not satisfied with this procedure and, as Deputy Haughey pointed out, there are three different ways in which the Minister could deal with this matter, that none of them affects in any way the principle involved in the Bill and that what we are concerned with here is parliamentary procedures.
While the Minister has stated in his reply that this was one way in which the matter could be brought before the House, he has not stated why he refuses to accept the amendment. The Opposition are not satisfied with the proposal put forward by the Minister. The amendment put forward by us is related to the manner in which the Government can deal with this matter. Therefore, if the procedure we have proposed is a procedure which can be adopted and which does not interfere in any way with the objective of the Government, then why is the Minister refusing to accept it? As I said before, if he were to accept our amendment, while we are opposed to the Bill as such, nevertheless, we would then have a situation where there would be at least some small measure of agreement.
I want to take note that the last contributions from Deputy Haughey and Deputy Collins were full of sweetness and light, and I welcome that. Deputy Collins' contribution was very much so, and I would be very happy to have the debate conducted on that basis, and I will say no more about the discordant political note. If that element is introduced it has to be answered, but possibly it has been introduced and answered and we can forget about it.
Deputy Haughey raised the point of our attitude to amendments, that if we are not going to accept amendments, let us say so now and get down to the voting. He is not so naive as to expect me to say: "Yes, we are accepting all your amendments" or "No, we are accepting none of your amendments". I cannot give a decision on any amendment until I hear at least the arguments for it. The arguments for this amendment are being developed and I am replying to them. I will consider each amendment in that light, that the arguments will have to be put forward and the debate will have to develop. How those arguments impress me, how basic the amendment would be to the principle of the Bill, all these factors have to be weighed in the balance, and such factors prevent any Minister, as Deputy Haughey knows well, from giving a commitment in advance for or against accepting amendments.
The kernel of this particular matter is this: when the Bill is enacted here, the enforcement of that Bill then becomes a matter for the Executive of the day. The passing of the law is a matter for the Legislature, and this is as prescribed in the Constitution, the separation of powers. In this Bill the Government have sought, because of the emergency nature of it, a via media between the two responsibilities to keep the two parts linked to some extent. Normally, the Executive goes its way when the legislation has been passed and is subject only to review by the courts. In this case, because of the emergency nature of the Bill, what the Executive is proposing to the Legislature is that the law should be an annual law to be reviewed by the Executive to whom this Legislature is being asked to give the law in the first instance. Again, because of its emergency nature, the Executive is putting in a second provision for review, that is, the provision that either House of the Oireachtas may annul an Executive order.
There is in the Bill as drafted a recognition of the functions of Executive and Legislature and there is a proper balance between the two. The Executive must be free to implement the laws given to it by the Legislature, but because of the emergency nature of this law, there is provision for parliamentary review, and that is an unusual thing to have in an Act of Parliament. The Opposition amendment would disturb that balance and would put that balance too much in favour of the Legislature, away from the Executive, who have a constitutional responsibility to discharge. I think the constitutional positions of the two powers are adequately met in the section as drafted. Parliamentary review is recognised and provided for. Legislative continuity is also provided for, and I think that is the proper balance.
I cannot agree at all with what the Minister has said, and this amendment gives him an opportunity to demonstrate what he and his colleagues have been saying over the last few days, that it is not intended that in the enforcement of this legislation the power given will be abused. He is arguing that the device he has built into this section is as good as what the amendment proposes. It certainly is not. Whether you argue that it is necessary or unnecessary, the distasteful part of the legislation is that it requires derogation from the Constitution and from the Convention on Human Rights. One would expect that a Government would, in the face of that, take every possible opportunity to see that the powers of Parliament would not be filched away in any re-enacting of this legislation.
I can visualise a situation that can exist, and I take exception to the provisions of paragraph (c) of subsection (2). In that paragraph, even if the legislation is not in force, the Government may at any time by motion reintroduce the powers provided for here. That immediately would bring the legislation into effect and it could be months, because of the 21-day sitting provision, before this Parliament could debate it under the limited provisions governing statutory orders which are used in connection with the most trivial things. There is a provision for 21 sitting days to elapse during which time the Opposition might seek to put down an annulment motion. We have had examples of this in the past in relation to much less serious legislative matters.
This provision in this paragraph is not a safeguard against the reintroduction of the legislation. Statutory order could reintroduce the legislation. It must be laid before the Oireachtas "as soon as may be" after the motion is made. Therefore, if the Government introduced the motion at the end of July and the House did not meet again until October or November, in the meantime there would be no opportunity for the Opposition to use this limited device in a reasonable time. That is the kernel of the points we are making and which the Minister has not answered. Here there is a tremendous derogation from legislative safeguard. The Government are not prepared to give the fullest opportunity to Parliament to debate any such order.
The point in respect of this paragraph involves a situation in which the Act is not in force, say for an interval. Deputy Brennan said that in such an eventuality it involved legislating again. I can see force in what he has said, but on the other side of the coin there is the exigency of the situation that would be responsible for calling these powers into operation again.
This is a Bill being debated pursuant to an emergency resolution and in the context of an abnormal situation with the possibility of high, low or medium points of crisis. If the Executive are to safeguard the situation, it is of the essence that they be able to move quickly and decisively. If every time this arose there had to be a debate here, there would be a conflict here to the detriment of the nation. That is my judgment and that of the Government—that the power given should be exercised on an annual basis subject to parliamentary review. If we were to do what the Opposition require, the balance would be shifted too much in favour of the Legislature. The proper balance is being preserved here.
The criticism in regard to the 21 sitting days is not of the Bill but has reference to the way this House orders its affairs. It does not answer the point that parliamentary review within a reasonable time is provided for in the Bill. How the Legislature orders its affairs to engage in that review is a separate matter.
Sincere though he sounded, I find it difficult to believe the Minister's arguments. It is only after two hours that the Minister has come to the kernel of the point and he still has missed out on the case put for the amendment. During the course of the last war when we had similar legislation in operation, Parliament was able to meet and order its business in such a way that there was no hold up in getting the legislation re-enacted each 12 months. Last week the Taoiseach made great play of the proposition that we would have this Act for one year but when one probes the Minister's latest reply one finds there is no question about having it in a permanent fashion, subject only to review by Parliament.
It can be annulled by parliamentary review.
It can be, but legislation of this nature should come before the House in 1977 in the same way as such legislation came in the past.
It can.
It will not. It is being brought in by way of order. The Government can put a motion but the Minister knows the practicalities of the House. If the Government and the Government Whip decide to bring in such an order at the beginning of a recess, it could be Christmas before the House debated it. The Minister has not given a clear explanation of why the system in operation, and which was successful, is now being rejected. On this amendment we have made a reasonable case which I am sorry the Minister has rejected.
If the Minister did not see fit to reply to Deputy Collins, I have not much hope of getting a reply to my points. In which circumstances does the Minister see paragraph (c) coming into play? As I interpret it, the operation of the powers depends solely on the continuance of the declared emergency.
I can envisage a state of affairs where the activities giving rise to the emergency would begin to taper off and hopefully and happily would cease, and then the powers in the Bill could be allowed to lapse. However, that cessor might be only temporary: there might be a flare up on a localised basis or in terms of time and it might be necessary to deal quickly with that flare up, and to achieve that it might be necessary to reactivate the power.
I thank the Minister for this information. This would be a tapering off situation which the Government in their enthusiasm are pushing us to accept and which has been allowed to lapse. They misjudged the situation. It was only a temporary lull of such a short duration that the necessary dismantling of the emergency declaration has not taken place and will flare up again so quickly that speed and haste are the essence of the operation and therefore subsection (c) will be available as an immediate strike weapon to get things going again.
I would like to discuss a few points the Minister raised but which the evidence does not bear out. He asserted that a review is already provided for. It has already been argued very competently from the Opposition benches that that review is not in any way comparable with the full parliamentary procedure which was followed during the 1939-45 period. In that period things were very different to what they are now. Those who are old enough to remember should try to cast their minds back to the difficulties of travelling to Dublin from the remoter parts of the country when the only available mode of transport was a train which might get to the place it was going on the day it departed. This was due to the fact that the fuel situation was desperate and the boilers were being fired by fuel they were never intended to burn. Despite that and the dire necessity to conserve everything because of severe shortages, something similar to what is contained in section 1 could have been proposed. It is strikingly peculiar that during all those difficulties, provision was made and full parliamentary procedure had to be gone through not less than once every 12 months during that emergency.
It comes strange in a situation of non-national emergency, where petrol is much more expensive but is not as unobtainable as it was then, and when the trains which still run to some parts of the country do not run on unsuitable fuel, the air services that Deputies can avail of on some occasions and the helicopters that are available from the Minister for Defence's stable, if from nowhere else, to find that the Minister feels justified in ignoring the procedure which was then exceedingly difficult to carry out because of the emergency, and which is now not finding favour with the Government. Instead there is being foisted on this House, with the full approval of the Minister and the Government, a review by way of opportunity to annul by either House within 21 sitting days of the laying before either of the Houses of an order. If an order were made in the latter part of July or in August and placed with all possible speed before the two Houses, neither House might sit for a considerable time after. It is conceivable that the Government, having made an order to continue section 2 of this Bill for a period of 12 months or had by order brought into being again a lapsed Act, might feel and in their wisdom decide that if the order was discussed by either House it could run the risk of being annulled and this could be contrary to the views of the Government who had made the order, and it would not be beyond the bounds of possibility in such circumstances that the coming together of either or both Houses of the Oireachtas could be considerably delayed beyond the normal time of recall. These are possibilities. I think the Minister would be the first to agree that in these possibilities there are dangerous overtones.
His assured attitude that the review provided for in section 1 (3) is adequate is not shared by many in this House, including many of those sitting behind him. Despite that there is no doubt that they will traipse into the lobby and support whatever finally emerges as the proposal of the Minister fronting for the Government. I am told there are "wigs on the green" in certain quarters tonight about what should be done by way of amendment to this Bill within certain supporters of the Government on whom they are relying to carry it through. Of course, these are only rumours but rumours in this House, it being a close community, have a queer habit of being correct. Some supporters of the Government are in a small gathering since early tonight and they are finding it difficult to resolve their consciences to accept this Bill as it stands. I hope they reach a conclusion before it is passed, otherwise it will be too late. If they then attempt to step out of line they will have the terms of the Bill applied to them instead of the Whip. I was interested in Deputy Donegan's contribution.
The Minister for Defence.
Sorry, Sir. The Minister for Defence, Deputy Donegan. A short while ago he stated in explanation of what he is alleged to have said yesterday evening that the principle of this package would not be changed. He may have said that at some stage but I did not hear him. One thing I did hear as he proceeded to leave the House with files under his arm, and it has been quoted by others, was that the Government would not change one iota of the package. For what it is worth that is my recollection of his movements as well as of what he said. I did not hear Deputy Cooney state his willingness——
The Minister for Justice.
Sorry, Sir. It is hard to get used to addressing them properly. It is all too easy to address them improperly. I did not hear what he is alleged to have said nor did I hear the contribution that he made on TV or on the radio. It is said that he indicated that he would be willing to consider any reasonable amendments to this package. I do not doubt it nor has the Minister for Justice denied that he said something to this effect. In fact, I think he confirmed that he is still willing to do whatever he said on TV or radio he would do. That statement, together with what I have quoted the Minister for Defence as saying within my own hearing, seems to confuse Fianna Fáil. While Fianna Fáil were being confused by these two contradictory statements it occurred to me that the answer to this situation is that it is open Government in operation, where more than two members of the Government may make contradictory statements but still mean the same thing. That explanation may help to relieve the confusion of the members of Fianna Fáil who heard both statements.
The Minister for Justice said that in furtherance of his plea a review was already provided for and that this should be adequate. To placate those who had fears about the review not being adequate he said that more private time was given in the past three years than in the previous 16 years. That may be an exaggeration but I would not attempt to contradict the Minister. Nevertheless I think it is unlikely. Not having the evidence to refute what I believe is not a fact, one can regard it as an enthusiastic exaggeration in furtherance of a weak case in regard to a review that is being provided as a substitution for the full parliamentary process. One thing I do know is that it is a complete denial of the time for discussion of serious matters in this House. I have been waiting four years for time to discuss the repeal of the Offences Against the State (Amendment) Act which the Government members were vociferous in opposing. I am still waiting and it is still on the Order Paper. So much for the generosity in the provision of time by this Government which was advanced tonight as an additional reason to placate those who do not feel happy about the review procedure. I have as much chance of being given time as a snowball has in hell. The Minister knows that and everybody else in the House knows that, but it will remain on that paper as a reminder and a contradiction of the assertion that you can expect a fair deal from this Government in regard to the provision of time for the discussion of important matters.
The provision contained in section 2 for the extension of the terms of the Bill is a negation of the role of Parliament. That in itself makes it a dangerous procedure, a procedure that denies Parliament its voice on behalf of the people for whom it speaks and with whose authority we have the right to speak in this House. When we deny Parliament we deny the very people who give us that authority. The Minister is ill-advised to proceed in this manner, no matter how wet he is of the whole concept of what is enshrined in this Bill, which is part of the three-way package we are discussing, some of which we have completed. No matter how high his enthusiasm is for putting the three-cornered item together, I still say that it is a dangerous procedure that he is proposing and one which could very readily have a kick-back, because a denial of the rights of Parliament is a denial of the rights of the people who elected that Parliament. You cannot spit in the face of the electorate for long and get away with it.
I move amendment No. 2:
In page 3, subsection (3), to delete lines 10 to 12 inclusive.
In connection with the amendments to section 2 I understand that the amendments are separate in their own right. Perhaps the Minister and the Chair might consider taking them together for the purpose of discussion and we can vote separately on them when we get to that stage.
The House agrees. Certainly.
In relation to subsection (3) of section 2 I have already in this House expressed my wonderment that, where a person has been in custody for the purpose of interrogation for 48 hours and during that 48 hours has given the Garda no information whatsoever and for that matter he may have remained silent throughout the 48 hour period, it is to be assumed that after a further five or seven days such a person would be, as it were, singing like the proverbial canary. This provision of the Emergency Powers Bill cannot be read in isolation from section 7 of the Criminal Law Bill which provides that not merely can the Garda interrogate him but can also photograph him, fingerprint him, take tests from him in relation to firearms and explosives, and for which purpose may take skin swabs or hair samples and retain for testing anything found in his possession.
Presumably the facilities proposed to be given to the Garda by section 7 could easily be given and the results ascertained within the 48 hour period. The Minister in the course of the Second Reading of this Bill said that he was unaware of any instance where a person having been detained for 48 hours was then theoretically released and allowed to step out of the place of detention and was then re-arrested and detained for a further period of 48 hours. I have made further inquiries since the Minister queried my statement and I am satisfied that what I said was correct, that the Garda in some instances operated their powers of detention for a 48 hour period in such a manner. The question must be asked what guarantee is there that the Garda will not regard themselves similarly permitted to operate the seven day detention period? It is of little use for the Minister to protest that this is not how the section is intended to operate. There is no qualification in the section and any views of the Minister as to how it is intended to operate are of no use to the detained person either during the period of his detention or afterwards. It is equivalent to the various protestations of members of the Government in relation to section 3, the incitement section of the Criminal Law Bill, where they are at pains to point out what their views of the law are, and how they believe our courts will interpret the law, notwithstanding that the clear and explicit wording of section 3 is phrased directly contrary to their views.
In relation to section 2 (3) of this Bill, as in relation to section 3 of the Criminal Law Bill, I have little doubt that any court would prefer not to try to interpret the views of some Minister in this House as to what the Minister thinks this section really means. If a person was picked up by the Garda and held in detention for seven days at the beginning of January of any year, and the same operation was carried out in the following June of the same year, then clearly the Minister would have no objection if the person who was picked up and detained for seven days on 1st January was also picked up and detained for seven days on the 1st of the following February. This is clearly allowable under this section, and once one has accepted in principle that it can be so operated, with a gap of three or four weeks between each period of seven days detention then there is no logical argument in principle whereby a person cannot be arrested and held in detention for seven days every eight or nine days.
The amendments which I am proposing to this section propose that any person so in detention shall have rights of access available to him by his legal and medical advisers and the right to correspond with his relatives and advisers, and they shall have the right to know at what Garda station or prison or other convenient place the detainee is being held. It should be quite clear to the Minister and to the House that persons have been and are being arrested and held in confinement and their whereabouts are not being disclosed to their legal advisers, even in cases where their legal advisers have gone in search of them. The House will recall a case in the High Court some months ago where a person was being held in a Garda station over a weekend and his solicitor and his solicitor's assistant and their counsel went looking for that person to give him legal advice. The advisers eventually made contact with a senior member of the Garda Síochána, and at the Garda officer's instigation a query was sent out from the communications centre in Dublin Castle to each Garda station in the Dublin area as to whether that person was in custody in any Garda station. I understand that no answer was received to that request although at the relative time the person was in custody in a Garda station not far from this House. It seems unreal of the Minister not to accept the proposition that where a person is in Garda custody his relations and advisers should have some basis of at least knowing where he is. A suggestion was made that this could lead to riots outside any Garda station but the section is drafted sufficiently wide to enable any person to be brought to a place as secure as an Army barracks, for example. Looking at the record of this Government, one queries whether any Garda station or prison is secure to detain convicted persons, not to mention persons allegedly innocent and merely in detention.
Over the weekend the Minister commented on the fact that our proposal that medical advisers be allowed to see a person while in detention is a slur on the Garda Síochána. I do not accept that such is the case. There have been cases in the past where persons would appear to have suffered some physical injury while in Garda custody. I accept that those cases are very few and far between but nonetheless it seems clear that some happened. In relation to the majority of cases where this does not happen, surely the Minister and the House will agree that it is in the interests and indeed for the protection of the Garda Síochána that the person arrested should be medically examined. I cannot understand how the Minister can state that this suggestion is a slur on the Garda when it is already accepted practice that when any person is brought to Mountjoy Prison as a convicted prisoner or on remand from any court, he is automatically and as a matter of practice examined to see if he bears any physical marks on him. It would seem that the medical examination of a person in those circumstances, so long as the Minister's Department operate it is all right, but all wrong, and a slur on the Garda when it is suggested by anyone on this side of the House. It is fair to say in relation to any legislation, but especially in relation to criminal legislation deemed to be of an emergency nature, and having constitutional protection, it should be acceptable to the public, as a general body, whether or not they are persons likely to be affected by such legislation. The writing into this Bill of very basic safeguards which may only be of significance in one per cent of cases which this legislation would affect, would at least tend to make the public less fearful of the proposed legislation and less fearful of the motivations of the Government who propose such legislation. Without wishing to appear to tease the Minister or annoy him, he said that a reasoned amendment would be considered by him and I believe this is a reasoned amendment and I hope he will see his way to accept it.
I have a fair idea already of the Minister's reply since in the course of interviews on radio and television and in an interview with the Sunday Independent the Minister made known his views on some of these points. He said that the accused person would get the normal legal advice but he said that if doctors were allowed admittance it followed that arguments in favour of dentists, hairdressers and so on, would be made that they also should get in. Perhaps the Minister was under pressure during that interview and I would hope that is why he said what he said because it is a serious matter that a person should have access to legal and medical advice if he requires it.
As regards my suggestion that it was only right and proper that the family of the accused person should know where he was held, the Minister is reported as having said in some instances the family of the accused person might not want to know his whereabouts. Again, I shall not stick that statement to the Minister's coat collar because he may have been under pressure and may have said this for the sake of giving an answer, but that is not so; the Minister realises that if a person is being held —I am sorry if the Minister for Foreign Affairs finds this funny and amusing. I think it is a very serious matter.
Obviously the Labour Party are not concerned about it. Where are they?
In an interview which the Minister had with Vincent Browne in the Sunday Independent the Minister was quoted as saying that complaints of ill-treatment were coming almost invariably from subversives who were taken into custody and “complaints from these sources do not impress me”. If this is what the Minister said it represents a most inhuman attitude on his part. It suggests that had he been Minister for Justice or a member of the Government at the time of the torture allegations five years ago, the case against Britain might never have been taken since the allegations were made at that time by people who came under the——
That is a completely wrong statement. The Deputy is in a very responsible position in making a statement like that.
If the Deputy wishes to contribute to the debate I am sure the Chair will allow him to do so. In fairness to him it is his first time here in the past two weeks and I suppose he must get something on the record.
The Deputy must have been absent.
I have given the quotation attributed to the Minister in the Sunday Independent. I would like to remind the Minister that those who made the allegations of torture five years ago were under the blanket definition of subversives at that time.
But many of them were not. The Deputy should not make that accusation against those people.
The Minister has not been listening very carefully to what was being said. I cannot understand what it was that he found so funny when I was talking about the importance of giving persons held for 48 hours or for seven days access to legal and medical advice. I see nothing funny in that nor in the suggestion that if a person were held his next-of-kin should be told where he is.
His family.
Or his family.
The Deputy's suggestion that all the people tortured were subversives is quite wrong.
No, I did not say that. They were labelled as such.
The Deputy should let them out from under the blanket.
I think there is great concern among the people generally that if persons are held they should have access to legal and medical advisers for the reasons I mentioned earlier and that their families should know where they are.
By agreement, we are dealing with two amendments of which the first proposes to delete lines ten to 12, in other words, to remove the provision to detain in custody for a further five days. In support of that amendment Deputy Collins made two points —he will correct me if there were more. First, he is worried that there might be abuses, that if there were not consecutive holdings for periods of seven days there would be virtually consecutive holdings with only a small interval between them. I think that in replying to the Second Stage debate I pointed out that it would be administratively and, in my opinion, legally wrong to do this; administratively wrong because it would be an abuse of the powers given here and I shall go into why it would be legally wrong in more detail later.
In the Second Stage debate Deputy Collins made the point that this abuse had taken place and that people had been held for successive periods of 48 hours. I said I was not aware of any such abuse and that certainly such cases had not come to me, that it was conceivable in all the arrests that had been made that a person was held for two successive periods of 48 hours but that that would be wrong. I invited details from Deputy Collins if he was aware of such cases and I said I would see that investigations would be carried out and that any necessary consequences would be visited on the people responsible. He says that since then he has been making inquiries which have confirmed what he said on the Second Stage debate about this abuse taking place. Again, for the sake of the Garda and for the sake of the public generally, I ask him to give me this information, pass on to me the hard facts which, I take it, he has found. I look forward to receiving those in due course from him and I undertake to him here that I shall have them investigated.
On Second Stage I said there were two constraints that would prevent the abuse of successive arrests. The first is that there would be a very clear and unequivocal Government direction to the Garda that such use of the section would be an abuse of it and, therefore, this was not to be done. I am confident that such a direction, given the loyalty and discipline of the force, will be honoured in the spirit and in the letter. That is the first constraint.
The second constraint is that this is not a blanket power to arrest people. People can be arrested only when the conditions set out in subsection (1) of section 2 are fulfilled. Let me remind the House what they are:
(1) A member of the Garda Síochána (on production of his identification card, if demanded, where he is not in uniform) may without warrant stop, search, question and arrest any person, or do any one or more of these things in respect of any person, if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence under the Offences against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of part V of that Act, or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information, relating to the commission or intended commission of the offence.
It could not be wider.
It is written into the Bill that the person making the arrest must have reasonable cause. It would be incredible that a person could without reasonable cause arrest the same individual on successive, or well-nigh successive, occasions or periods of seven days. I am satisfied that, if a person were arrested in that manner, he would quickly have recourse to the courts on the grounds that such arrest was not within the terms of the section and that entitlement to go to the court would not be removed by the immunity given by virtue of Article 28 of the Constitution because that immunity arises only when the arrest is in accordance with the law. The case can be made, I believe very convincingly and successfully, that the arrest of a person in those circumstances could not possibly be in accordance with the law.
That is nonsense.
In addition to the protection afforded by way of direction to the Garda there is the legal protection that the arrest must conform with the requirements of the section. I reject Deputy Collins' argument on these two scores.
May I interrupt to ask one question? Did I hear the Minister say a direction will be given from the Government to the Garda as to how they should interpret the administration of the section?
No. The Garda will get an instruction from the Government that what is feared by Deputy Collins, namely, arrests for successive periods of seven days, are not to be carried out because that would be an abuse of the powers given by the Bill. Furthermore, it would, in the Government's opinion, be illegal.
Could not the garda suspect the man was carrying documents? The Minister argued it is unlikely the garda would suspect a man of being about to commit a crime twice in seven days. He could certainly suspect the man, so to speak, of carrying documents.
He could but he would have to be able to do so "with reasonable cause" and, if the circumstances of the case were such that he could not possibly have "reasonable cause", then he would be open to legal sanctions. If he had not legal powers, the powers so exercised would come within the confines of the section. But I would regard that as an extremely rare and exceptional situation.
Deputy Collins' second amendment seeks to provide for:
daily access to a person in custody within the meaning of section 2 (3) of this Act by such person's legal and medical advisers and facilities for such person in custody to contact his legal and medical advisers, and the disclosure to the next-of-kin of a person in custody under section 2 (3) of this Act of his whereabouts and address at any particular time.
The Deputy prefers the word "family" rather than next-of-kin. I do not object to what the Deputy seeks but I suggest these rights are already in existence. I am advised—I have no doubt about it —that by virtue of the guarantee of personal rights under the Constitution one such right is a right to legal advice. That is a constitutional right and, as such, it is part of our law. I have no doubt at all that that is the situation and since that is so, it is unnecessary to write into this legislation what is the existing legal position. I have no doubt, too, that were there any impediment placed in the way of the exercise of that right, the court would very speedily grant relief.
Likewise, should there be need for medical attention, that is also a personal right guaranteed under the Constitution. When this suggestion with regard to a medical adviser was first mentioned I said—I think I was expressing what would be a common enough and natural enough reaction —that the suggestion carried with it an implication that there was need for such advice arising out of the custody of the individual and that carried with it the implication that the person had been assaulted. I rejected the implication then and I reject it again now.
I suggested humorously on Second Stage that one should also demand rights of access for various other classes, such as a hairdresser, a dentist or an optician. If access in the case of a doctor is not required to treat ill-treatment then logically provision should be made for all sorts of advisers. I was not under any pressure when I said that. It was a clear, logical conclusion.
With regard to families I have never heard that there was any difficulty about families being notified of the whereabouts of a person in custody. The 48-hours provision has been in force since 1939. This is a small, intimate community and what happens becomes known very quickly. We do not live in large, anonymous conurbations. I consider a person has a right to have his family informed. Deputy Collins mentioned an instance in which a solicitor had difficulty. I am thinking of a case where the solicitor was a lady—Deputy Collins indicates it is the same case—where there was alleged concealment by the gardaí of the lady's client. The court was invoked and fully investigated the matter and exonerated the gardaí of any attempt to conceal from this lady the whereabouts of her client. My recollection is that the court was satisfied there was a series of coincidences, or misapprehensions, or misunderstandings which got in the way of this lady finding out what she wanted and I think, by way of implication, the court was critical of it. I am satisfied that getting information as to the whereabouts of someone in custody has not been a problem.
If a person is arrested and he asks that his family be told and also requests medical or legal advice—we will say "legal" rather than "medical"—is the Minister giving a guarantee to the House that that person may communicate with his family and, if he so wishes, get legal advice that same day?
I am. My understanding of the advice given to me is that a person in custody is entitled as of right to legal advice.
We will challenge that.
We will have to take issue with the Minister on that.
