Dáil Éireann debate -
Friday, 10 Sep 1976

Vol. 292 No. 7

Emergency Powers Bill, 1976: Report Stage (Resumed).

Debate resumed on amendment No. 3:

In page 3, after line 19, to add a subsection as follows:—

"() Nothing in this section shall apply to a witness".

—(Deputy G. Collins.)

Mr. Blaney

Last night we were discussing the amendment that nothing in section 2 should apply to a witness. Those who sponsored this amendment indicated that the wording that they used might not necessarily be the wording that was most appropriate and that perhaps the Minister, in his wisdom and greater knowledge, might find some more suitable words to get around the obvious anomaly in subsections (1) and (2) of the section. Some of the speakers supporting this amendment pointed out that it was rather strange that a witness to the commission of a crime or a person with knowledge or information about a crime that is proposed to be committed should be treated in the manner that is possible and likely under this section.

A witness may be brought into custody and kept for up to seven days plus the two days that it is possible under this and other measures. The likelihood of a witness or a person with the knowledge of a crime letting it be known, if this measure goes through, that he has such information or knowledge, with the threat that he may be pulled in and kept in custody, is very small. This is surely the greatest deterrent to any such person coming forward; indeed he would be an absolute clown to let it be known that he has any such information. It is more likely that a person with the sort of information that is intended to be covered in subsection (1) will make sure if at all possible that the authorities do not find out he knows anything, so that he will not come within the terms of this section and possibly be detained without charge or trial for a minimum of seven days, which may be added to by a further two days. I cannot accept the arguments on a previous amendment that the two days cannot be added to the seven days indefinitely. The Minister's assurances have been comprehensive and complete, but I am quite sure that the Minister is fully aware that his assurances have no value whatsoever. Any instructions not to apply a law that might be given to the members of the Garda, no matter how authoritative they may appear to be, does not, in my belief, bind any member of the Garda to carry out that instruction. As I understand the situation, nobody can with certainty instruct the Garda not to invoke any law on our Statute Book.

Therefore, no direction emanating from the Minister need be respected by members of the force. If what is proposed in this section becomes law it will rank the same as any other laws on our Statute Book and nobody will be entitled to tell any member of the Garda force not to invoke any particular section. Members of the Garda can enforce the laws on the Statute Book regardless of what any superior may tell them to the contrary. Any instruction to the Garda not to invoke this proposal in subsection (1) in so far as witnesses or persons having certain information or suspected of having certain information are concerned, will not be worth the paper it is written on. Therefore, the assurances given, backed up by the promise of such instructions, do not hold water and make no sense.

It is true that there will be, as the Minister has already admitted, innocent persons taken in and detained for 48 hours where a garda has reasonable cause to suspect that that person has been a witness to the commission of a crime, or is in possession of knowledge of the commission of a crime, or of the intention, of some person or persons to commit a crime: "suspects with reasonable cause". What is the difference, I wonder, between the phraseology used in this Bill and that used in previous legislation? In the 1972 Act, and probably in the 1939 Act as well, the words used are "reasonable grounds for believing". Why has it been found necessary—the Minister is prone to pointing back to the two previous Acts as justification for some of the things he is proposing in this Bill, some of the things to which objection is taken; the Minister says that these two previous Acts have proved themselves, or proved that they did or did not do some of the things we are afraid may happen under this Bill—to change the words "reasonable grounds for believing" to what appears in this Bill? Perhaps those well versed in the interpretation of the law may be able to elucidate this for us. The Minister should have given us some explanation. The phraseology is not the same as that used in the Acts to which the Minister has referred. Perhaps he will be able to indicate why the change had been found necessary, not alone in relation to this amendment but also as it applies to other provisions in the section, provisions which are many and varied, onerous and very dangerous. I would like to hear the Minister tell us what this change of wording is intended to mean.

I would also like to know whether those suspected of having knowledge will, in fact, be taken in in a series of two day-five day operations for an indefinite period. There was a suggestion earlier that the two measures would or could work independently and, therefore, would be capable of being worked consecutively and the setting aside, as it were, of section 30 of the 1939 Act while this measure would be in force would obviate the abuses of the two Acts to bring about a situation of having seven days' detention operating under this measure and immediately after the 48-hour detention under the 1939 Act. That has been dealt with but there does not appear to me to be any assurance with regard to the much more dangerous situation of the 48-hour and five-day detention in this measure being used consecutively or as near consecutively as would make no difference. If that can be done, and I believe it can, then it is not a 48-hour detention we are talking about, capable of being extended by direction of a chief superintendent or higher ranking officer, but a further five days amounting in all to a seven-day detention without charge or trial. Thereafter, and just how quickly is a matter of guesswork, the whole cycle can start all over again. There is at least an indication in the Bill of some termination to the period of detention but if the provisions are utilised to start the whole process again then this is not detention. It is internment, internment by subterfuge.

An Ceann Comhairle

I am sorry to interrupt, but the Deputy seems to be straying from the amendment. I would be grateful if he would relate his remarks more closely to the amendment before the House.

Mr. Blaney

It is difficult as, I am sure, the Chair appreciates to make the fullest possible case for the amendment without going into the reasons why such an amendment is essential. Perhaps I have made the point.

An Ceann Comhairle

The Chair has accorded the Deputy a wide latitude in that regard.

Mr. Blaney

I was about to say that I have, perhaps, made the case sufficiently well to leave it now to the tender mercies of the Minister for Justice to deal with it, no doubt, as he has dealt with everything else put before him, namely, to trample it under his feet.

Mr. Kelly

That is not true. We accepted the last amendment.

Mr. Blaney

Stop codding. Let the Parliamentary Secretary go off and rest himself somewhere.

Mr. Kelly

The Deputy is telling an untruth.

Mr. Blaney

Deputy Kelly, the Parliamentary Secretary—I believe Deputy Professor Kelly is the full title of the gentleman in question— has suggested I am telling an untruth. Will the Parliamentary Secretary disagree with me when I say that those matters put before the Minister have been trampled under his feet?

Mr. Kelly

I will; I disagree flatly with the Deputy.

Mr. Blaney

He does. Well then the Parliamentary Secretary is even more——

An Ceann Comhairle

Let us not engage in argument. We have had a very orderly and responsible debate up to now. Let there be no disorder.

Mr. Blaney

If the Parliamentary Secretary cannot control himself in the House that is not my fault.

Mr. Kelly

I will not take lessons from the Deputy about behaviour.

Mr. Blaney

I neither sought nor——

An Ceann Comhairle

Order. Deputy Blaney is in possession on the amendment.

Mr. Haughey

Would it be possible to get Deputy Professor John Kelly, Parliamentary Secretary to the Taoiseach, to leave the House and then we might have an orderly debate?

Minister for Justice (Mr. Cooney)

We might then have to engage in the practice of referring to ourselves as Deputy ex-Minister So-and-So. It would be better if we did not engage in that.

Mr. Haughey

I was being polite and courteous.

An Ceann Comhairle

Let us be careful to be respectful to each other in this House. Deputy Blaney.

Mr. Blaney

What I was about to say, when so rudely interrupted by Deputy Professor John Kelly, the Parliamentary Secretary, was that in regard to those matters put before the Minister, being trampled under his feet—with the one swallow proposed now to make the summer, that being the previous amendment which would stand as the exception that proves the rule—this Minister and Government who have become paramount in their operations over the past few years do not give a damn about what we think in this House. Neither have they any regard for the people who unfortunately, regrettably and unwittingly, gave them sufficient support when there was bargaining and they were put together as a Coalition, to make it possible for them to come in and misrule from this House.

An Ceann Comhairle

The amendment, please. The amendment before the House.

Mr. Blaney

Certainly, Sir. It is because of this misruling, regrettably, that it is necessary to have amendments which, even if agreed by the Government, will put a blot on the Statute Book, by having a measure such as this Bill become law under false pretences, the false pretences being the crazy situation of having utilised and abused the authority of the Oireachtas to declare that which does not exist, a national emergency.

An Ceann Comhairle

Deputy Blaney is clearly not referring his remarks to the amendment before the House.

Mr. Blaney

Of course I am, Sir.

An Ceann Comhairle

The Deputy ought not argue with the Chair.

Mr. Blaney

I am not arguing with the Chair, Sir. I am arguing with the crazy legislation which, even at this late stage, it is being attempted, to be made less objectionable by all the efforts of the Oppositior party, but which, regardless of their best efforts, will remain totally objectionable.

The addition of the words: "Nothing in this section shall apply to a witness" is an attempt by the proposers of the amendment to amend the actual operation, though not necessarily the wording, of section 2 (1). So far as lines 44 and 45 on page 2 are concerned—which deal with persons in possession of information—the effect will be to exonerate and set apart people who might be witnesses to the commission of an offence or, in some manner, to the intended commission of an offence, bringing them out of the net which is far too wide in any circumstances to be tolerated in any democratic State.

The Minister might lend his energies and do what I am sure Deputy Kelly would expect him to do, since he is so grateful to him for doing——

An Ceann Comhairle

The Parliamentary Secretary to the Taoiseach.

Mr. Blaney

The Parliamentary Secretary to the Taoiseach is it? I did not quite know to whom he was Parliamentary Secretary and the Chair will excuse me for not having used that in the recital of his title earlier on.

Mr. Kelly

The Deputy should not be such an ass.

Mr. Blaney

Then, Deputy Professor John Kelly, Parliamentary Secretary to the Taoiseach——

An Ceann Comhairle

Please, let us eliminate disrespect to each other.

Mr. Blaney

Let us eliminate what?

An Ceann Comhairle

Let us eliminate disrespect to each other.

Mr. Blaney

Between you and I, Sir?

An Ceann Comhairle

Between the Members of the House.

Mr. Blaney

That is not disrespect, Sir, that is——

An Ceann Comhairle

I reminded the Deputy yesterday there is a Standing Order governing the manner in which Members of the House may be addressed.

Mr. Blaney

Sir, I am now applying it and I am told that I should cut out the disrespect. Does the Chair wish me to address the Deputy as Deputy, or Professor Kelly?

An Ceann Comhairle

I expect the Deputy to refer to Members of the House in accordance with the Standing Orders of the House.

Mr. Blaney

Which I have been doing, and which I thought the Chair felt I was over-doing. Others are not doing it, Sir, and have not done it since you pulled me up here yesterday. Then, Deputy Professor Kelly, Parliamentary Secretary to the Taoiseach——

An Ceann Comhairle

The Member's title is Deputy John Kelly, Parliamentary Secretary to the Taoiseach, stop.

Mr. Blaney

Stop what?

An Ceann Comhairle

There is no other appendage required.

Mr. Blaney

I did not add any other appendage, Sir.

Mr. Kelly

The Deputy is making a show of himself; not of me but of himself.

Mr. Blaney

Then, Deputy John Kelly, Parliamentary Secretary to the Taoiseach, if that is so, I certainly have company, with the Parliamentary Secretary very prominent in such a line.

Mr. Kelly

Does the Deputy think I give a curse what he calls me? He should just get on with his speech.

Mr. Blaney

The Deputy and the Parliamentary Secretary—sorry, Sir, Parliamentary Secretary to the Taoiseach, Deputy Kelly, does not give a curse what anybody calls him. He has displayed very frequently in the past that he does not mind what he calls other people either. Perhaps it is just as well he is sufficiently thick-skinned not to be concerned about what anybody calls him, because others would need to be very thick-skinned to tolerate the sort of things he calls them.

An Ceann Comhairle

Can we please get away from personalities?

Mr. Blaney

If we could get the personality who has brought this to its present point out of this House instead of disgracing himself here, as he has done on many occasions; he cannot keep his cool, he, the Chief Whip of the Government party——

An Ceann Comhairle

Let us get back to the amendment devoid of personalities.

Mr. Blaney

I have not said a word to the Deputy, to any other Deputy, or to the Parliamentary Secretary to the Taoiseach, not one disrespectful word, not one untrue word, now or at any other time though, God knows, he richly deserves such on many occasions. We excuse personalities like him who come in here and think they have a lot to teach us; they finish up by not having anything to give us, or certainly nothing that we want.

This amendment is trying to give some semblance of respectability to a most amazing section. It is attempting to undo what is clearly the intention of lines 44 and 45 which deal with information in the possession of a person or persons. How will the law attempt to determine what knowledge is in the possession of a person? By the powers given to the authorities they can deprive an individual of his freedom without any charge being made, without allowing the person access to his legal adviser and without giving his family and friends information on where he has been taken. This can be done on the basis that a member of the Garda Síochána suspects that such a person is in possession of information, whether it was something he saw, heard or was told. On the word of a member of the Garda that person may be deprived of his liberty for 48 hours without being told the reason and without being charged with any particular offence. He may be brought to some convenient place unknown to his family and friends without the right of recourse to his legal adviser, or his medical adviser if he should happen to suffer from some illness that might require frequent attention. In this connection I am not referring to the hairdressers and the other people the Minister so facetiously referred to.

The amendment is attempting to rectify those matters to some little degree. After the detention of 48 hours at some convenient place—convenient to all except the innocent detainee— on the direction of a chief superintendent or a person of higher rank the person may be detained without charge, trial or even having a word spoken to him for a further five days in a convenient place, again without the knowledge of his family as to where he may be kept and without the right to consult with his legal adviser. In my opinion there is nothing to prevent such a person being lifted again after he has been released without any charge being made.

We are actually pleading with the Minister to make a small change in this proposed legislation. This is supposed to be a democracy. We will say it was a democracy after this measure goes through. The Members who support the Government cannot be unaware of the absolute violence this measure will impose when it is inflicted on the unsuspecting public. It is violence in its worst form and then we are given all the "jazz" that it is necessary to put down violence. All of us are fully aware that one of the most brutal aspects of the detention across the Border some time ago was the misery and fears of the families of those who were lifted and brought to unknown destinations for indefinite periods. When the families sought information from the nearest station they were sent to other places for information. They were sent round in circles, not knowing what was happening.

Have the members of the Government who want to impose this brutality on our people any conception of what they are proposing? Do they realise all the misery, hardship and suffering they will impose on the families who are not detained, against whom there is no suspicion? There are 23,000 members in our security forces and none of them may have any suspicion about any of the families affected but nevertheless they will be subjected to hardship and misery as a result of this legislation and in a way that is not civilised. Successive Irish Governments considered this kind of behaviour part and parcel of the torture proceedings that were condemned and for which the British occupation forces in the Six Counties were held responsible. Let nobody think I am exaggerating the situation: I am not.

Think of the anxiety and the worry which must be endured by fathers, mothers, brothers, sisters and close friends when a person is taken away and detained without charge, when it is not known where that person is being held or for how long or even whether he will ever come back. A person can be detained merely on suspicion on the part of any member of the 23,000 strong security forces. Not only can a person be held for seven days but that period can be extended for a further seven without the detainee being able to communicate with his family.

An Ceann Comhairle

The Deputy is repeating himself.

Mr. Blaney

If repetition had ever been removed from this House, half the activity would long since have ceased. However, I take the point and, if possible, shall avoid repeating that particularly gruesome detail I have mentioned. I wonder whether all of us here are expected to follow the Government into their mad or at least semi-mad state, in which condition they must be to propose such a measure in addition to the mad acts perpetrated and the others that have yet to come before us. Although they are apparently mad to put forward such proposals we must realise that they are serious in having them implemented. The emergency they speak of is only a figment of their imagination. Yet, they have bulldozed the emergency measure through both Houses. I suppose one could refer to their actions as being indicative of a state of total collective insanity.

In these circumstances we can hardly be surprised at anything that can happen in the future. The situation is almost unbelievable but it is not being taken seriously enough by Deputies on the Government side. It is so outlandish, so far removed from reality, as to make is difficult to be taken seriously. In view of the proposal before us the amendment is a mild one. Indeed, we are extremely mild in our attitude considering the nature of the proposal. As the Ceann Comhairle indicated, the debate had been very orderly up to the time of the interruptions by the Parliamentary Secretary to the Taoiseach. The debate has been much more orderly than the circumstances justify but it is difficult to understand fully what exactly the House is being used for when the measure proposed is one that will operate to the detriment of our people and to the brutal treatment of them in the name of established authority.

Mr. Kelly

In regard to the exchange I had with Deputy Blaney a few minutes ago—I regret having interrupted him—but I considered it necessary to do so as I thought he was leaving the House while under the impression that no amendment had been accepted by the Government. All through his contribution he alleged that the Minister had trampled on him.

Mr. Blaney

What about the exception?

Mr. Kelly

The Deputy mentioned the exception only after I had referred to it. Perhaps he was outside talking to some of his henchmen when the matter was being discussed.

An Ceann Comhairle

Let us get back to the amendment.

Mr. Kelly

The Deputy was prepared to leave the House under a false impression.

Mr. Blaney

The Parliamentary Secretary is misleading the House.

Mr. Kelly

I recall being in the Seanad in 1971-1972 when the then Minister for Education, Deputy Faulkner, introduced the Higher Education Authority Bill. Of all Bills, and there would not be very many in this category, it was one on which, because of the Seanad's opposition, more informed discussion might have been expected than was the case in the other House. That very rarely would be the case but this Bill was an exception. On that occasion Fine Gael, Labour and the Independents between them put forward 20 amendments. The debate was orderly and in no way acrimonious but Deputy Faulkner refused to accept as much as one of those amendments, not one of which was contentious politically.

Mr. Blaney

Perhaps the Parliamentary Secretary would get back to the amendment.

Mr. Kelly

The Deputy is not prepared to take the sort of stuff that he spiffs out all the time. He has a lot to learn.

Mr. Blaney

The Parliamentary Secretary is only a clown.

An Ceann Comhairle

An expression of that kind ought not be used.

Mr. Blaney

The Parliamentary Secretary is not in order as the Chair knows.

An Ceann Comhairle

He is entitled to develop his point and to relate it to the subject matter before the House.

Mr. Blaney

Obviously, that depends on who the Deputy is.

An Ceann Comhairle

That is not a fair comment.

Mr. Blaney

It is so far as I am concerned.

An Ceann Comhairle

Order.

Mr. Kelly

In regard to this amendment the phrase which alarms the Opposition has existed in a different Act which has been in force for the past 37 years. From listening to the comments from the other side, one would think that the Deputies concerned would have been endeavouring quietly while in Government to ensure that the abuse which they now apprehend was discontinued. Of course, they did not do so.

I wish to make a couple of points in regard to this specific fear which, perhaps, has been expressed in good faith. First, though, I must say that I cannot understand why a legal point put forward tentatively or in the nature of a forecast, as it were, should be downgraded and regarded as feeble by comparison with the cocksure assertions which come from the other side. No one making a legal point about what the courts may or may not do can be certain of what he is saying any more than one can be certain about anything in life.

My forecast about this section is that it would not be within the powers of the section to be responsible for what the Opposition apprehend. I do not think it would be within the powers of this section for the Garda, no matter what their suspicions in regard to the fact that an offence had been or might be committed, to arrest a witness merely because he was a witness. It would be outside the intent of the section, outside the powers of the Act, and they would be doing something unlawful.

Apart from that, the utility of arresting a witness merely for the purpose of intimidating him, of cowing him by holding him for seven days—even though he himself was not in any way suspected of doing something unlawful—is not obvious to me. What is the point in arresting, as was eloquently said by the far side, an old woman who might have been an inadvertent, accidental witness of some offence? She cannot be subjected to the "third degree". She is not obliged to answer questions. What is the point in holding her for seven days? If the allegation made is that the purpose would be to intimidate her, to cow her into a state of mind where she would produce evidence, even though terrified of doing so, that I think would be illegal and this section would not justify it.

I do not want to hear from the other side in this regard that the blanket protection which the emergency resolution affords to this Bill would cover that situation because it is blanket protection only to the powers which the Bill contains and powers which are not clearly contained in the Bill are outside that protection. It is true the Constitution says that nothing shall be done to nullify acts done or purported to be done in pursuance of a law like this, but there are limits in reason even to an expression of that kind.

For example, if a Garda superintendent were to confiscate a motor car—as distinct from stopping it or searching it—or if he were to purport to deport someone or to destroy a house by burning it down, and then simply say that it was done in reliance on the Bill in front of us, those words in the Constitution would not cover it. There is some limit in reason to any statutory interpretation and "nullifying" there must mean nullifying something done in bona fide purported execution of the powers which the Act would confer.

I feel confident, but time will tell, that the point will be taken at least as well as points made with such cock-suredness by Deputies on the far side. I feel confident that this is something which is clearly outside the intent of the Bill, is outside the powers of the Bill. and would be so held by any court. Anything in the nature of an intimidatory arrest of a casual accidental witness merely for the purpose of terrorising that witness into telling a story—although that witness might have had no connection with the offence—would be outside the Bill's power.

In regard to the fact that a similar power has been in existence for the past 37 years, I want to repeat what the Minister has already said and to add an instance to it. This power, so far as I know—and the Minister has said the same thing—has never been used or abused during the 37 years of its existence, although there have been occasions on which, under the interpretation attached to it by the Opposition, it might very well have been used. On how many occasions have there been Press conferences, interviews with people who are wanted by the Garda for offences under the Offences Against the State Act? There have been umpteen such occasions.

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

Mr. Kelly

I do not believe that this apprehension of the Opposition is well founded because an arrest made merely for the purpose of intimidating or cowing a casual accidental witness not suspected of having any complicity with an offence or any responsibility for its future commission would be outside the powers of the Bill and would be unlawful and would expose the people responsible for it to an action for false imprisonment.

I will end by drawing the attention of the House to the numerous occasions during the past seven or eight years on which journalists doing their jobs—and I do not complain about it—have interviewed people whom they knew to be wanted by the police force here or by the security forces in the North. There was one well-known occasion on which a journalist, through refusing to answer questions in a judicial setting, went to prison, not under section 30 of the Offences Against the State Act but for contempt of court. On many of these occasions, if the apprehension that the Opposition is expressing is justified, this power under section 30 might have been invoked. Although the section 30 power in the 1939 Act provides only for a two-day arrest, it might have been invoked if it had occurred to anybody that it had the sense and meaning which the Opposition have been attributing to it. I do not believe it has that sense or meaning and although I do not challenge the good faith of the people making that point, I do not think it has any grounds.

Listening to Deputy Blaney talking about this section and about this power, anybody would swear that ever since 1957 when he came into Government and became a Minister when Fianna Fáil were returned in that year he had been at work solidly and unremittingly to demolish the Offences Against the State code. So far from that being the truth, he was part of a Government which interned a couple of hundred men when the country was not nearly so disturbed as it is at the moment, when the loss of life in the North of Ireland was a minute fraction of what it now is and the total loss of life was equal to that sustained in a couple of car crashes these days, when the damage to property was a small fraction of the damage caused in any one year now.

Deputy Blaney, as the Taoiseach well said, sat as quiet as a mouse as a member of the Government which brought in internment and presided over a Special Criminal Court staffed not by respected judges but by Army officers. He is the man who comes now whinging and complaining about how we are brutalising this State and reducing democracy to a farce. He is absolutely contemptible to me. I have reasonably polite and decent relations with Deputy Blaney outside the House but when I hear this sort of thing my gorge rises and I am sure the same is true of any of the gentlemen on the far side. A mouse is what he is. That is what the Taoiseach called him and he is now no more than a roaring mouse.

Mr. Brennan

This is an important amendment which seeks to do something with the most objectionable part of this legislation. This extended period of detention is objectionable in every way but the fear most people entertain is that innocent people can and may suffer under it. It is in an attempt to relieve that anxiety that we have put down this simple amendment. It may not be properly worded and may require further changes but it is a simple straightforward amendment which seeks to explain what we are trying to do and is easily understood by everybody.

We know innocent people are frequently arrested. We read of people who have been detained for long periods and released without charge. This in itself proves that innocent people can be held. If a member of the Garda suspects with reasonable cause —that is the phrase in the legislation which permits arrests to be made by a uniformed or non-uniformed member of the Garda—that a person has documents or information, he can have that person held for interrogation. In order to try to eliminate that indiscriminate power we have sought to amend the most objectionable and detestable part of this legislation. I am sure the Minister will meet this to some extent.

An assurance by the Minister that he will give a direction or that he is satisfied the Garda will not enforce this provision unduly and that abuses will not be allowed will not be sufficient. We all know how situations can develop. The anxiety and stress that can be caused is, perhaps, better known to some of us who live close to the troubles in the North.

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

Mr. Brennan

I know of a recent case of a young Tyrone farmer and his wife who were detained for a considerable period and were not given any reason for their detention. It transpired that some people were found in the vicinity of their farm, having been pursued by the military at night. These people suffered severe nervous trouble afterwards and all they got for their trouble was an apology. I mentioned this case to illustrate how easy it is for people to find themselves in custody for no proper reason. That is amply borne out by the number of people brought in time and again and released without charge.

Nobody familiar with this legislation will deny that the extended period of detention is the most serious part of this legislation. We should try to ensure that it will not have the effects we fear on people who are not guilty of any offence or who are not deliberately connected with any subversive activities. This should be supported by both sides of the House and by the Minister. With this amendment we are trying to ease the section to ensure as far as possible by writing into the section that the greatest possible discretion will be exercised by those whose duty it is to have a suspicion and that those who will be in a position to exercise that right will not abuse the unlimited powers now given to the Garda.

We have the highest regard for the Garda who will administer this section. We know they will not deliberately abuse it but there can be exceptions and mistakes can be made. Many innocent people will find themselves in custody and they will be likely to suffer the pangs of this extended period in custody.

There should be no serious objection on the other side of the House to accepting this amendment. It may not express adequately what we are trying to do. Since the Government are trying to get all Stages of the Bill, we only had time to put down the amendment on the spur of the moment for Report Stage. The Minister can suggest more suitable wording. What we are seeking to do is quite explicit. The amendment proposes that nothing in the section shall apply to a witness. By that we mean people remotely connected or thought to be connected with an incident and who are brought in, should be excluded from the extreme provisions of this section which is the most detestable and objectionable section in this whole legislation we are discussing during this emergency session.

I hope the Minister will show the same consideration for this amendment as he seemed to show for other amendments proposed yesterday. I hope he will rise to the occasion in relation to this most drastic section and let the blow fall as easily as possible. Speakers on the other side of the House seemed to suggest that everybody brought into custody is a subversive. I listened to Deputy O'Brien from Dublin who said nobody should worry about what subversives have to undergo if they are brought into custody for an extended period. That is assuming everybody brought into custody is a subversive. Nobody can be termed as such until he is proven guilty. We have to think of the many people who can be brought in when the net is spread as wide as this section will permit it to be spread.

The section is too restrictive. We wish to make it known by a simple amendment that the House wishes the section to be applied in a moderate way, and with all due consideration, in other words to ensure that the police force will use it only in relation to those whom they have very good reason to think are involved in subversive activity. Society has to suffer when we are dealing with a serious situation. As has been said so often in this debate, it is a question of deciding which is the greater encroachment on the liberties of the people. Have we reached the stage where the action we are taking is justified? Nobody on the Government side of the House has satisfied the public or the House that that is the case.

We have long since reached the stage where anything we have to say on this side of the House can be effective. We opposed the section and the Minister succeeded in getting it through. We are now asking him to co-operate with us in diluting it to the extent that it will ensure that the wide powers the section gives will be kept to the minimum and confined only to persons whose apprehension would not be a cause of anxiety in so far as it would lead to an improvement of the situation. The amendment is an effort to water down and to make less offensive the most serious section, the actual crunch of the whole legislation.

I think the Minister will accept the amendment even though he may have to change the wording, or he may introduce an amendment of his own which will do what we are seeking to do. There has been a good deal of discussion about the effects of the suspension of Article 28.3 of the Constitution. It has been argued by the lawyers that this suspension can be applied to any legislation or acts done in pursuance of the purpose for which this legislation is being enacted. Even a layman with an elementary knowledge of the law must find the wording of that Article of the Constitution absolutely clear and understandable. Article 28.3.3º reads:

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

That is quite explicit. It does not require any legal luminary to interpret it because of the plain, simple language in which it is expressed. Any act done in pursuance of this legislation is immune from being tested in court as to its constitutionality. It is quite simple. For that reason it brings to bear on this section a much more serious aspect than anything we could possibly say about it or read into it. Against that background I feel the Minister will relent. He has not spoken yet. I do not think he has shown his hand in relation to this amendment.

Mr. Cooney

On a point of correction, I have spoken and I have shown my hand.

Mr. Brennan

I recollect now that he spoke yesterday and refused to accept the amendment. Despite the fact that we are allowed to speak only once on Report Stage, the Minister is permitted to get up at the end of the debate and say he is accepting the amendment.

Mr. G. Collins

He need not even get up.

Mr. Brennan

I want to make just one little political quip in reply to the entire political speech made by the Parliamentary Secretary, Deputy Kelly. Our Fianna Fáil Government must have been the greatest Government ever known because, every time the Government find themselves in a tight corner with something distasteful, they resort to saying that in such and such a year Fianna Fáil did the same thing and therefore it cannot be wrong. We must have been great.

Mr. Cooney

The Deputy can be happy with his memories.

Mr. Brennan

Every time they try to justify something they say:

"Fianna Fáil did the same and therefore it must be right".

Mr. B. Desmond

You were worse. You executed them when it suited you.

Mr. G. Collins

What would you have done? Wrestled with your conscience?

Mr. Halligan

It is good to have one to wrestle with.

Mr. Brennan

We are supposed to have progressed. It is a question of how far back you want to go if you want to talk about executions. I do not wish to rake up the past. We have refrained from doing that so far. Keep off the executions.

Mr. Halligan

OK. Go back to 1972 and the threat of internment.

Mr. Brennan

Keep to the future and avoid the past. I am confident that the Deputies who made noises in Opposition to this section will now see fit to support the amendment that would extract from it the dangerous and most detestable part.

Mr. M.E. Dockrell

I did not intend to intervene in this important debate but I do so having heard Deputy Brennan say that the Government have shown no cause why this Bill should be introduced and why this section should be in it. I am amazed that the Deputy should say that the Government have shown no reason why this is necessary. In fact, the Government and Government speakers have given reason after reason, have shown the state of unrest and given details of the murders committed here. We have been told of the two terrible murders a short time ago, murders which a civilised community which we pride ourselves on being is deeply ashamed of. I am speaking of the assassination of the British Ambassador and the murder of the unfortunate civil servant, a young girl with a great future in front of her. They are only two people in a long list of crimes in recent years.

The Government do not need to point out to the Opposition and our people the necessity for amending our Constitution. "He who runs may read if he wants to read." The Opposition have said they support the Bill in principle and this section is the nub of the whole thing. It should not be necessary to show cause for that because cause is so manifest all round us, robberies, arson and other crimes. Quite a substantial proportion of this city was burned the other night. We have from our law and order guardians, the Garda Síochána, information that that was only part of a much larger scheme. Bank robberies are taking place almost daily and we know that people have been intimidated and of the frightful conditions that exist across the Border. Some of those conditions have spilled over into this part of the country. Any person who listens to the radio or reads the newspapers can see that the tide of lawlessness is slowly but inexorably rising here. If we are sincere in this matter and we want to equip the men and women who work ceaselessly on our behalf, the forces of law and order, we must give up a small portion of our personal liberty in order that the greater liberty of the country may not be engulfed by the actions of men and women of evil.

How can the Opposition maintain that this measure is not necessary and at the same time say they support it in principle? How can they accuse the Government of not showing cause when they say they support this measure in principle? There is a kind of Jekyll and Hyde mentality in that attitude and our people are well aware of it. The Government at times have been accused of all sorts of things but this is a liberal minded body of men and we on this side of the House are liberal minded, with a small "L".

Mr. O'Kennedy

It is getting smaller all the time.

Mr. M.E. Dockrell

They are not a bit small in their intellectual acceptance of the great liberal ideas which need to be protected. The Government reluctantly—some think belatedly—have taken action. After great searching of mind and conscience and with great personal agony, I have come to the conclusion that the rights of the majority of our people, their safety and well-being must be the primary consideration. They must not see their young people pushed into wrong organisations. In order to do that the Government have told us that they believe this measure is necessary. They do not like to have to introduce these measures but I thank God they have had the strength of mind and purpose to do this. Anything I represent, and the people I represent, stand firmly behind our Minister in this matter. If he wishes to amend a part of the legislation by acceptance of a degree of an amendment, I will stand over his judgement because he is in touch with the forces of law and order. If he wishes to equip the forces of law and order by a rejection of this amendment, I stand behind him. Everything I stand for in my political life and the people who have supported me, irrespective of their colour, creed or class, are behind the Government. Reluctantly, but firmly, and knowing it is the right thing, I support the Government.

Mr. Haughey

It is with some reluctance that I take my colleague, Deputy Maurice Dockrell, to task on a point he made. We are all very conscious here of his sincerity in these matters and in everything he says and does but, for the record, I should point out that we on this side are not accepting this legislation in principle. We are totally opposed to the Emergency Powers Bill, totally opposed in principle to the declaration of a state of emergency and to the enactment of this piece of legislation. In regard to the Criminal Law Bill we oppose in principle, very resolutely, certain aspects of it. On the other hand, we are prepared to accept the greater proportion of it because either we agree with what is proposed by the Minister or alternatively we say, in effect, that we do not really think what he is proposing in this regard is necessary or even relevant but he is the Minister for Justice charged with responsibility for the safety and security of the State and we are prepared to give him the benefit of the doubt where we can do so.

I want to outline very briefly our general approach to this package proposed by the Government. Deputy Dockrell struck a chord which I think would be universally acceptable when he spoke about the liberal ideal and liberal ethic and the need to fight for it whenever we should. I suggest to him that is precisely what we are doing in regard to this amendment. We are endeavouring to rescue something in support of the liberal approach out of this very Draconian legislation which the Minister proposes.

Mr. M.E. Dockrell

Let me just say that it is in support of the greater liberal ethic that we must be prepared sometimes to give up something of a lesser liberal ethic.

Mr. Haughey

We all accept that and, perhaps, the only area of disagreement is where the line has to be drawn. We all agree that it is very often a question of accepting the lesser of two evils. We must give up some of our liberties in order to protect what is threatened. Very early in this debate I suggested that the Government were over-reacting, that in seeking to protect what we all regard as valuable they may, in effect, be destroying it. In trying to protect our community they may be vitiating everything that makes that community worth protecting. This is a very deep and fundamental argument and it is possible for men of integrity and goodwill to differ fundamentally on where the line should be drawn and to what extent freedom must be given up so that the greater good of the community can be protected.

Perhaps in a minor way we have a classic illustration of this in what we are proposing in our amendment. The Minister proposes for his purposes, as he sees them, sweeping powers of arrest in this section. The measures in it are such, I have suggested, that in respect of no person or situation would the Garda be unable to execute an arrest under it. Deputy O'Kennedy unearthed this particular facet and we consider it important enough to put down an amendment in regard to it. We believe that without interfering with the efficacy of the arrangements which the Minister wants to introduce in the security area he could accept this amendment.

My colleagues and I have endeavoured to explore the matter as fully as possible. We have marshalled the arguments as we see them and pointed out the implications of what is involved here for perfectly innocent citizens. Yesterday, Deputy Brosnan, who has experience, as has Deputy O'Kennedy, of the practice and procedure in our courts outlined the implications of this section in regard to the law of evidence. I do not know sufficient about the practical application of the law in the courts to pontificate on this matter but I know that a vitally important part of the criminal law is the law of evidence. that it is something cherished by the courts and by lawyers. It is a very clearly defined body of law and if Deputy Brosnan and Deputy O'Kennedy, with their experience of the courts and of the criminal law as applied in the courts, say that they are worried about this provision in regard to witnesses, the Minister should take note of what they say.

Others who have not the technical knowledge and experience of those two practising lawyers have sought to outline the unhappy and unjust results which could emerge from these provisions in relation to ordinary innocent citizens. I think it is clear that unless some limitation or protection is put into this section by the Minister we will have cases where innocent persons will suffer through no fault of their own simply because they witnessed something inadvertently. Apart from that, there is the question of the possibility of this section interfering with the judicial process. We all know that in the prosecution of cases witnesses can be of basic importance either from the point of view of the prosecution or the defence. Do the Minister and his colleagues not see that if the Garda have the power to arrest and detain a witness for seven days in certain circumstances that could be crucial in regard to a particular case? If a vital witness either for prosecution or defence is not available because he has been detained under these provisions, that could have very serious implications from the point of view of the administration of justice.

In that regard an aspect of the Minister's argument in support of this section is disturbing and frightening. Whether he said this in the course of developing an argument or whether we are to take it as of serious import, he said that to a large extent the purpose of the section was to enable the Garda to conduct investigations without interference. On the face of it that is a reasonable proposition but it could be interpreted to mean that the Garda in pursuing their investigations could get people out of the way, could get innocent bystanders who happened to witness certain events put aside for seven days so that they would not be in a position to give evidence.

By and large, the Minister's defence of the elements in this section to which we object is, I think, fairly put in this way. This power has been there since 1939 and it has not caused any problem or difficulty; it has not had any detrimental effects. We do not really know whether it has had any detrimental effects or whether it has given rise to any injustices, because the nature of this provision of enabling people to be detained for 48 hours is such that none of us is in a position to say. Even those of us who have been Ministers for Justice when this power has been in operation are not in a position to put our hands on our hearts and say that we are quite certain that there never has been an injustice perpetrated under the provisions of this section. There may well have been, and there probably were, innocent persons detained unjustly as a result of this section since 1939. It is sweeping of the Minister to dismiss the case on those grounds, to say that it has been there on the Statute Book and has not caused any harm or caused any injustices.

Apart from that, there are two vital differences between section 30 of the Offences Against the State Act, 1939, and section 2 of the Emergency Power Bill. The first of those differences is the extension of the detention period. Up to now the detention period has been 24 hours, capable of being extended by another 24 hours, making 48 hours in total. I am told by lawyers that that is something that is acknowledged in the common law apart from statutes. Forty-eight hours is regarded in most jurisdictions as a not unreasonable period of time during which a person can be detained before being brought before a court. That is to some extent accepted among lawyers in different countries as the norm for this type of detention. But there is a completely different proposal before us now, that is, the extension of that period of 48 hours to seven days. That extension of time is a fundamental difference. In fact, it could be regarded as an exercise by the Garda of a judicial function—imprisoning a citizen for seven days. If this Bill could be challenged in the courts— and we submit it cannot be challenged—it could probably be challenged on the basis that we are handing over to the Garda a judicial function by giving them the power of internment for seven days. That is the first fundamental difference between this provision and section 30 of the Offences Against the State Act, 1939, on which the Minister bases his case. It certainly highlights the significance of this proposal in regard to witnesses in a new way. Because of the seven days' detention involved it makes it stand out now in a way that the provisions of the 1939 Act did not stand out.

There is another fundamental difference between this provision and the provision in the 1939 Act. The 1939 Offences Against the State Act is part of the normal law. It is not emergency law; it is not law brought in as a result of the suspension of the Constitution. It is part of the normal statute law, fully in accordance with the provisions of the Constitution and as such is capable of being challenged in the courts. On the other hand, this Emergency Powers Bill is unconstitutional law. It is law which is outside the jurisdiction of the Constitution. It is law which cannot be challenged in the courts and we submit that anything done under it cannot be challenged in the courts.

The Minister's argument about comparing this provision with the provision in the 1939 Act falls flat on its face when you take that into account. Any witness arrested by the Garda and detained under section 30 of the Offences Against the State Act, 1939, can go to the courts and secure his release and at present he will only be detained for 48 hours. In this section a person so detained will, in the first instance, be detained for a full seven days. Much more important than that is the fact that he cannot have recourse to the courts because of the provision of the emergency resolution and this piece of legislation. I want to make the point very strenuously to the Minister that his argument that we should not object to this provision, that we have no case for objecting to it because it is similar to the power that was there in 1939, does not stand up. We are concerned about something which is serious and which can result in possible interference with the judicial process and can result in innocent people having severe injustices done to them. That is our case in favour of this amendment. We believe that the Minister could accept the principle of this amendment without interfering with the basic purpose which he wishes to achieve.

I readily admit that the amendment being put forward is in simplistic terms and we would not press the Minister to adopt it in its form. I know enough about parliamentary procedures and draftsmanship to know that it would be well within the compass of the parliamentary draftsman and the Minister's advisers to draft an amendment to the section which would achieve what we want to achieve, at the same time not restricting the power of the Garda to detain certain persons who are culpable and should be detained. I think the Minister will acknowledge that that is so. If we had time we could draft such an amendment. Because of the exigencies of the situation—as Deputy O'Kennedy pointed out, we only came upon the enormity of this provision during the debate—we had to put the amendment down in the form in which it is. I speak for my colleague, Deputy Collins, when I say that if the Minister is prepared to indicate that the principle of what we are talking about is acceptable to him, if he is prepared to consider at some stage in the Seanad or elsewhere an amendment to this section on the lines we are talking about, an amendment which would protect innocent persons and not interfere with witnesses, we would be prepared to withdraw the amendment and accept the good faith of the Minister in that regard.

I think he can have no compelling reason for not giving us such acceptance in principle. If our case is unanswerable, as I believe it is, and if he would agree with us that innocent persons could be caught up in the web of this section and that it is possible to draft an amendment which would protect such people and at the same time enable the Minister to achieve what he wants to achieve in the section, then he should indicate to us now that he is accepting our case in principle and that he will deal with it in some way at a later stage. We would be happy to withdraw the amendment on that basis. Otherwise I am afraid we shall have to divide the House on this amendment, because we believe that something important and fundamental is at stake here and something which we on this side of the House should endeavour to have rectified if we can at all. Perhaps the Minister would like time to consider this?

Mr. Cooney

I have not heard anything in Deputy Haughey's reply that makes me change the view I expressed in answer to the views put forward in support of the amendment.

Amendment put.

The Dáil divided: Tá, 53; Níl, 64.

Tá

• Allen, Lorcan.
• Barrett, Sylvester.
• Blaney, Neil T.
• Brady, Philip A.
• Brennan, Joseph.
• Breslin, Cormac.
• Brosnan, Seán.
• Browne, Seán.
• Brugha, Ruairí.
• Burke, Raphael P.
• Callanan, John.
• Calleary, Seán.
• Carter, Frank.
• Colley, George.
• Collins, Gerard.
• Cronin, Jerry.
• Crowley, Flor.
• Daly, Brendan.
• Davern, Noel.
• Dowling, Joe.
• Fahey, Jackie.
• Farrell, Joseph.
• Faulkner, Pádraig.
• Fitzgerald, Gene.
• Fitzpatrick, Tom (Dublin Central).
• Flanagan, Seán.
• Geoghegan-Quinn, Máire.
• Gibbons, James.
• Gogan, Richard P.
• Haughey, Charles.
• Hussey, Thomas.
• Kenneally, William.
• Kitt, Michael P.
• Lalor, Patrick J.
• Leonard, James.
• Lynch, Celia.
• Meaney, Tom.
• Molloy, Robert.
• Moore, Seán.
• Murphy, Ciarán.
• Nolan, Thomas.
• Noonan, Michael.
• O'Connor, Timothy.
• O'Kennedy, Michael.
• O'Leary, John.
• O'Malley, Desmond.
• Power, Patrick.
• Timmons, Eugene.
• Tunney, Jim.
• Walsh, Seán.
• Wilson, John P.
• Wyse, Pearse.

Níl

• Barry, Richard.
• Begley, Michael.
• Belton, Luke.
• Belton, Paddy.
• Bermingham, Joseph.
• Bruton, John.
• Burke, Dick.
• Clinton, Mark A.
• Cluskey, Frank.
• Collins, Edward.
• Conlan, John F.
• Coogan, Fintan.
• Cooney, Patrick M.
• Corish, Brendan.
• Cosgrave, Liam.
• Coughlan, Stephen.
• Creed, Donal.
• Crotty, Kieran.
• Desmond, Barry.
• Desmond, Eileen.
• Dockrell, Maurice.
• Donegan, Patrick S.
• Donnellan, John.
• Dunne, Thomas.
• Enright, Thomas.
• Esmonde. John G.
• Finn, Martin.
• FitzGerald, Garret.
• Fitzpatrick, Tom (Cavan).
• Flanagan, Oliver J.
• Gilhawley, Eugene.
• Governey, Desmond.
• Griffin, Brendan.
• Halligan, Brendan.
• Harte, Patrick D.
• Hegarty, Patrick.
• Hogan O'Higgins, Brigid.
• Jones, Denis F.
• Kavanagh, Liam.
• Kelly, John.
• Kenny, Enda.
• Kyne, Thomas A.
• L'Estrange, Gerald.
• Lynch, Gerard.
• McDonald, Charles B.
• McLaughlin, Joseph.
• McMahon, Larry.
• Malone, Patrick.
• Murphy, Michael P.
• O'Brien, Fergus.
• O'Donnell, Tom.
• O'Leary, Michael.
• O'Sullivan, John L.
• Pattison, Seamus.
• Reynolds, Patrick J.
• Ryan, John J.
• Ryan, Richie.
• Spring, Dan.
• Staunton, Myles.
• Taylor, Frank.
• Timmins, Godfrey.
• Toal, Brendan.
• Tully, James.
• White, James.

Tellers: Tá, Deputies Lalor and Browne: Níl, Deputies Kelly and B. Desmond.

Amendment declared lost.

Mr. Cooney

A technical amendment is necessary here, so I move the following amendment:

In page 3, line 10, to delete "an officer" and substitute "a member".

It is customary now to use the word "member" irrespective of the rank of the garda concerned. Deputy Collins will note that the word "member" is used in the next subsection in line 16.

Amendment agreed to.

Agreed to take Fifth Stage today.