I reserve my right to speak.
Emergency Powers Bill, 1976: Fifth Stage.
Question proposed: "That the Bill do now pass."
I will be as brief as possible because all the arguments that could be made against the Bill and its provisions were clearly made from this side of the House. After much debate, and after the declaration of the state of emergency was forced on us by the Government's parliamentary majority we now have the Emergency Powers Bill, a Bill which the Taoiseach said would crush the arms conspiracy against democratic Government which faces the nation. We had these dire words and threats of doom and gloom and claims that the Government would take emergency powers to whatever extent necessary to crush the so-called armed conspiracy against the Government and the nation, yet on examination of the Bill which we now have at its Final Stage we find that in the totality of the legislation and the powers proposed to be taken by the Government under the provisions of the Emergency Powers Bill, there is only a provision which has been described even by members of the Government parties as a provision so that a member of the Garda Síochána with the authority of the chief superintendent may keep a person in custody for a period of seven days, instead of the present two day period.
Indeed, the Taoiseach while contributing to the debate over the last number of days catalogued crimes committed since 1973, since his Government came into power, crimes ranging from murder to hi-jacking and from robbery to bombing. I would like to know in how many of these cases would the murder, robbery, hi-jacking or bombing not have taken place if the Garda had the extra five days. It is a fair question. It is one everybody should ask himself, especially the Members of this House who have supported this Bill so far. In how many of the cases the Taoiseach catalogued would the crime have been prevented or the perpetrators brought to trial, conviction and punishment by a properly constituted court if at the relevant time when the offence was committed the Garda could have kept a suspect in custody for seven days instead of two days?
Is it not easier to keep a man for seven days than to intern him for four or five years, as Fianna Fáil did? Where is the Fianna Fáil honesty?
Interruptions by Deputy Coughlan are very disorderly.
We say seven days. They held them for three years.
Deputy Coughlan is being disorderly and the Deputy knows he is.
I am telling the truth.
It over-stretches credulity that this state of emergency had to be declared by the Oireachtas in special session purely for the purpose of extending from two to seven days the period in which the Garda may hold a suspect for questioning. If the Taoiseach would have us believe that the horrific catalogue of crimes that have taken place since this Government came into office would not have taken place or, if they had taken place, would have been solved by the simple expedient of extending from two days to seven days the period in which to hold a suspect and question him, then why was this not sought long since? I do not accept that the 48-hour period was insufficient for the Garda to conduct inquiries or to interrogate a person in custody. Neither do I accept the plea that the Garda required this extension from two to seven days.
The Taoiseach has laid it on the line that the intention in declaring a state of emergency and passing this legislation is for the purpose of giving the security forces more and better ammunition in their fight against unlawful organisations, principally the Provisional IRA. I do not see that this legislation adds one whit to the powers necessary to enable the Garda to conduct their fight against illegal organisations. It is a recognised fact, even by members of the Government parties, that the real weapon given to the Garda against the IRA was given to them by this party when we were in Government in 1972 and Deputy O'Malley was Minister for Justice.
What about internment? Deputy O'Malley threatened to introduce internment. Tell us about that.
Deputy Coughlan will please desist.
Internment without trial.
Our legislation was an effective weapon in dealing with the IRA. I believe it is the most effective weapon we have on the Statute Book to deal with the IRA. I am extremely worried——
I am sure the Deputy is.
——about acts that may be done under this Bill, a Bill which will not be subject to judicial scrutiny. Powers of questioning may be much more extensive than would appear at first sight because that questioning will be carried on over a period of seven days.
Did anybody ever hear such hypocrisy? I have never listened to such hypocrisy. Go back to the past. Fianna Fáil interned them, intimidated them and locked them up for years without charge.
Order.
There is very grave fear abroad that these powers are too far-reaching. If questioning over a 48-hour period proves abortive, one is entitled to ask what means will be used in the extended period to ensure that someone who kept silent for two days will speak at the end of seven days.
The Garda are accepted by and acceptable to our citizens but, nevertheless, this House must be very careful that even such a body as the Garda Síochána are not given excessive powers. We have only to look at the Government, particularly at the Labour Party, to see the change that accession of power can make in persons, no matter how normal they may have otherwise appeared.
What about the subsidiaries of Fianna Fáil?
I am convinced there is a risk in giving anybody the powers proposed to be given to the Garda Síochána in this Bill. It seems very important to me from the point of view of the administration of justice and the continuing good name of the Garda that they should not be given any opportunity to do anything excessive. Equally, an opportunity should not be given to anyone in custody to make possible allegations against the Garda. This is a genuine fear we have and it is that fear that motivated us to suggest certain amendments in order to incorporate certain desirable safeguards for the protection of all concerned. These amendments were not accepted and I would, I know, be out of order were I to talk about them at this stage.
This is, I think, an appropriate point for the Chair to intervene and remind the Deputy that on this Stage reference may be made only to what is in the Bill.
What is in the Bill and how it might be abused is what I was dealing with and the Chair will appreciate that I deviated just for a second or so. I am not happy with the provision dealing with the length of time the Bill will operate. I do not accept that this House is being treated as it should be treated from the point of view of its responsibilities and functions. Section 1 provides that the House may by resolution annual the Minister's order renewing the Bill. That is not the best way this House should deal with legislation of this nature. A more direct method was that in operation with the Emergency Powers Bill of 1939. Unfortunately, the Minister and the Government did not see their way in this.
I do not believe at all that the powers sought by the Government to be given to the Garda in this Bill will have the slightest thing to do with the solving of any crime or indeed its prevention. I do not believe that any more than I believe the Taoiseach or the Government when they say it is necessary to declare a state of emergency. Nothing that has been said so far from the Government side in relation to this Bill or indeed in the debate on the declaration of a state of national emergency leaves me with any choice whatsoever but to believe that the whole performance is nothing but a piece of window dressing motivated by an unworthy Government for suspect, political motives.
Like my colleague, Deputy Collins, I should like to say some few final words about this measure before we send it on its way to the Statute Book. Let no one in this House attempt to delude himself that we have done a good day's work in enacting this legislation. In fact this is—and let us recognise it as such —a sad occasion for us, Irish people, and for our democratic way of life. Whether they believe they are justified in doing so or not the Government must recognise that they are propelling us along a dark and dangerous road. I believe we are facing a bleak period of doubt and uncertainty about our civil liberties. The Government must recognise that there is widespread, genuine disquiet about the implications of these measures; that they have failed completely during the course of this discussion, to reassure the public or allay the fears and disquiet that exist. These fears and disquiet arise, as I see it, from the nature of these provisions themselves and also from a concern about the manner in which they will operate in practice. It would be absurdly optimistic for us to expect that there will not be mistakes and miscarriages of justice. I believe it is certain there will be rumours and allegations of such mistakes and miscarriages of justice. In many areas there will be anger, bitterness and frustration among ordinary citizens who will find themselves caught up in the security machinery, who will have no redress, no legal or political means open to them, to vindicate themselves.
Is it all going to help to restore peace and justice in this country? We do not believe it will. We believe certainly it is no substitute for enlightened political initiatives and leadership by the Government. In particular, one effect will be that our garrulous Minister for Foreign Affairs will no longer be able to lecture other countries and their politicians about liberty, human rights and how they should order their affairs in regard to such matters. It is sad and depressing that at no time has one single Government spokesman expressed abhorrence or even distaste of these measures, or expressed any regret at having to introduce them. On the contrary, there was this crude sabre-rattling by the Minister for Defence, and among Ministers in general there was an apparent desire to flex muscles and display the iron fist. We have sought in vain to ameliorate the harshness of these proposals, to try and make them more humane and acceptable. We have had no success in those endeavours.
The danger I see in our situation today is that our people will accept one thing after another without protest because they cannot see what will be the ultimate combined effect. If, however, we in this House look at where we are heading, a frightening, threatening picture presents itself to us. Let me briefly, in the broadest outline, indicate where we will stand as a community when this and the other measure before us are passed. The rights of habeas corpus, that fundamental, traditional, cherished protection of the ordinary citizen is being set aside; the inviolability of the family home will no longer exist. Armed soldiers will be enabled to patrol our streets, block our roads and search our persons and our homes. Censorship of the newspapers and almost certainly also of radio and television are becoming a distinct possibility.
I wonder if the members of the Government are aware of the great historic opportunity they have lost. What a glorious boast, what a glorious claim, it would have been for them in latter years to be able to say that despite the threatening, ominous situation they found confronting them, despite the lawlessness and violence, they were able to preserve our free democratic way of life in the teeth of that lawlessness and violence because Irish democracy was so firmly based and secure. Unfortunately, they have turned aside from that course and chosen to travel a different road. As a result, another dreary, depressing chapter will be added to the history of this land of ours. So be it. The Government decided that it should be so. It is they who will have to bear the responsibility for that in the eyes of history. We have done our best. We can now send this Bill to the Seanad with an easy conscience because we have sought to make it——
What about the £100,000?
We have sought to have some changes made which would make it more tolerable and acceptable to the ordinary man in the street without, at the same time, imposing any undue or unnecessary restrictions on the forces of law and order.
Defenders of the Provos.
I want merely to say a few words without repeating what my colleagues have said. Looking at the whole effort in which we have been engaged for the last couple of weeks, taking it in its widest perspective, we have to ask ourselves was it a useful exercise. I hope it will contribute in some way to the purpose alleged by the Government. We come to the end of this debate without being convinced of the justification for the action taken; in fact, we are less convinced now than when the debate started.
As Deputy Haughey said, we sought to amend the most objectionable section of the Bill. We failed to get the Minister to see reason and to restrain his hand for the time being. We made the charge that it was window dressing, and if future events justify the accusation we made it will be very serious. The circumstances are not such that the Government in particular or the Opposition should indulge in any form of window dressing. I said at the start of the debate that we should be realistic and approach the matter with the minimum amount of propaganda. I think we acted responsibly and if other motives are attributed to us they are wrong. We did not believe that the circumstances warranted the action that was taken and we said the result would be worse than the present situation.
I said the other day, and I repeat it now, that above all this Government sought to establish themselves as a law and order Government. They opposed the legislation we introduced to deal with subversives and they said that existing legislation was sufficient to deal with any situation. They implied we had not the will to deal with the matter, in turn implying that only they were the people who had the real will to tackle the security problem. They have had three-and-a-half years to do that but in addition to the legislation we introduced, which they considered was unnecessary, they have now declared a state of national emergency. They are seeking further powers when they failed to do what they accused us of not doing.
For that reason it is obvious that the approach to the whole business is wrong somewhere. There is too much ostentation about our security effort and less in-depth activity to get to the root of the cancer which is the cause of the symptoms we are seeking to treat. I accuse the Government of not taking sufficient action to find a political solution to this problem——
I hesitate to interrupt the Deputy but it is clear he is going outside the contents of the Bill we are discussing.
I was dealing with the Bill in the broader sense. Perhaps it appeared I was moving from what the Chair interprets as the narrower confines of the Bill. What is in the Bill is only a poor substitute for the real effort to bring about peace and harmony. If we are to have peace with justice we must pursue every possible channel to find a political alternative and we must involve all concerned in arriving at that solution. The politicians in Dublin, London and Belfast appear to have abdicated their role to find a political solution and the vacuum is being filled by the terrorists on all sides, whether loyalists, people who call themselves republicans or others. The vacuum is being filled by violence. If we are to have a proper substitute for the distasteful action we are taking in passing this Bill, the Government should be seen to be exploring every possible channel that would bring about a political solution. The only way to do that is to strike at the root of the trouble.
If we had not opposed this legislation and exposed it we would have been accused of acquiescing in something which is not acceptable. Very few Members opposite have expressed regret about the action being taken although no one regards it as laudable. However, people in the country are not satisfied with the action which they were told was necessary and most believe it is out of all proportion to the situation that exists now. In fact, it is conceding to certain people that they have brought things to the state that the Government are unable to control them without declaring a state of national emergency. This is capitulating and it does not strike at the cause of the trouble. I am inclined to agree with the phrase in the circular sent out by the Civil Liberties Association that you cannot legislate for political trouble, that what requires a political remedy will not be achieved by legislation. I accept that legislation is necessary where it can be seen to be required but we are not satisfied that stage has been reached here.
I hope that in the legislation there may be machinery that will help in the situation, namely, to eliminate terrorism and to bring peace. After the debate here I do not think anyone will be satisfied that there was justification for the action proposed by the Government. If we did not oppose it we would be accused of acquiescing. We will be accused now of ulterior motives but that will not upset us because we approached the measure after due consideration and in a responsible way. We shall watch carefully what the outcome will be in the days ahead.
At the outset one should record that, by and large, the debate on this Bill has been free of personal or political rancour and free of the bitterness and strife which in the past characterised some debates on emergency measures. For that both sides of the House can be very grateful because this attitude shows a parliamentary maturity which is to the credit of Dáil Éireann. One might add also that it is unlikely that any Member could in any way fault either the Ceann Comhairle or the Leas-Cheann Comhairle who presided over the debate with scrupulous impartiality.
The kernel of the debate has evolved around the question of seven days custody. Within the confines of the Fifth Stage I wish to reiterate that I support my party's point of view that there can exist circumstances of a security situation in which extended custody powers are necessary. In my view we are in a situation in which such power is entirely necessary and desirable in certain circumstances. In my interventions in the debate I have endeavoured to ensure that in giving such powers to the security forces the legal and constitutional rights of innocent persons who may become involved in Garda investigations are not only seen to be protected but that that protection is enshrined within the legislation.
The legislation is repressive. It is abhorrent. Any parliamentarian with a concept of the constitutional and the human rights of citizens must be acutely aware of the import of legislation of this nature. Therefore, during the course of the debate I, in good faith and rejecting any feeling there might be, either on the Government's side generally or within my party, of any softness towards political terrorists and supporting the security forces of the State to deal with all acts of terrorism irrespective of whether they are perpetrated by the IRA or by any of their offspring or by any other organisation, raised a number of important points. It is time that the Opposition as well as the media became used to the increasing practice whereby Government backbenchers oppose openly any measure about which they have reservations. This should not evoke any surprise but should be regarded merely as parliamentary democracy.
The scenario written by Deputy Haughey is excessively pessimistic. I have profound regard for the commonsense and the sensitivity of those who are responsible to the Executive and, in turn, in the responsibility of the Executive to the Legislature and, finally, in our responsibility to the Irish people to ensure that excesses will not occur irrespective of how draconian this legislation may be. I consider Deputy Haughey's conclusion to have been emotionally foreboding, rhetoric and, perhaps, a conclusion that could be regarded in some respects as being provocative.
The vast majority of the electorate support any Government, irrespective of their political complexion, in any reasonable effort taken in the interest of the security of the State. On this occasion we can be said in some respects, both north and south, to be almost in a civil war situation. The fact that we may use a small "c" and a small "w" in that context is poor consolation to the woman who has lost her husband or to the parents who have lost their children as a result of acts of terrorism. In these circumstances I am confident that both the Dáil and Seanad as well as the public servants who, at ground level, will be involved in the implementation of this legislation, will bear in mind the strictures of Deputies on both sides in relation to the implementation of the legislation. I wish to record my personal disappointment that certain reservations which I expressed were not enacted.
I am sorry to interrupt the Deputy but I must remind him that he may not discuss what might be in the Bill.
I accept that and I merely record that disappointment. Nevertheless, I would remind the House that in the past six years all of the parliamentary parties here have enacted draconian legislation. In my comparatively short time here I can recall such measures as the Offences Against the State Act, the Prisons Act, the Criminal Law (Jurisdiction) Act and the Forcible Entry Act. We now have the enacting of these emergency powers which are to be followed by the Criminal Law Bill. All this legislation constitutes a wide battery of tough measures in that short period. Therefore, it behoves us as parliamentarians to ensure that no innocent citizen suffers as a result of that broad sweep of very tough legislative powers which we are devolving on the security forces. In the area of subversion and of political terrorism this House has grown up a great deal in the past six years. I recall an occasion when I sat on the Opposition benches six years ago that when I asked the Taoiseach if the Government wished to condemn the assassination of three young British soldiers on security patrol in Belfast I was treated as a political leper in this House.
Hear, hear.
Indeed, I was warned by Deputies on all sides of the House, from all political parties, that because I had denounced the IRA murders of soldiers who at that time had been sent into Belfast to protect the minority there I would never be re-elected.
We must get back to the Bill. This debate is very confined. I ask the Deputy to confine his remarks to what is in the Bill.
The House has come a long way since those events. I am happy to say that the parliamentary godfathers of the Provos— I do not propose to elaborate any further—do not any longer exert any great influence in this House. They are certainly not likely to do so in the future. I wish to exclude the members of the Opposition front bench from that.
What we are about to do finally is to enact extraordinary powers under emergency provisions established in our Constitution. It is understandable that any Constitution would have to make provision for such extraordinary powers in emergency conditions because the life, the safety, the very existence of any State could be threatened at any time. When a State is so threatened, obviously the Legislature must take the necessary action to protect its safety.
For that reason there is provision in our Constitution, in Article 28, to secure the safety of the State. It states "to secure the safety of the State in time of war or armed rebellion". When the people enacted that Constitution, with that provision in it, they did so with the determination that in circumstances which were not then foreseeable, but which could emerge later, this Legislature would have the right to enact extraordinary powers to the extent that the other constitutional guarantees which are basic to citizens' rights, to the functions of democracy and its ordinary operation, could not be relied on to attack any action taken by the Oireachtas on foot of such emergency extraordinary powers.
That is the scenario in which these powers were to be given and that still applies. Hence it was that during the war, after the enactment of the Constitution, it was necessary to introduce emergency powers to secure the safety of the people of this State and to make fundamental provisions for their needs in a time of emergency. The Emergency Powers Acts which were then enacted were openly and properly stated to be, on the face of them, measures to protect the safety of the State and its people. I will quote from No. 28 of 1939:
To make provision for securing the public safety and the preservation of the State in time of war and, in particular, to make provision for the maintenance of public order...
That was what was envisaged then and should be envisaged now. The type of legislation we are about to pass is, by agreement on all sides, definitely of such a nature as to restrict the exercise of the normal rights of citizens, but only because emergency conditions are such as to justify such a step.
We come, then, to look at the circumstances in which this Bill was introduced and to analyse whether such conditions exist, even on the basis of the statements made by the Taoiseach and his Ministers. We must analyse whether conditions exist which would justify the deprivation of the liberties which we have all come to regard as sacred. We on this side hold the view, and we do not set ourselves up as a judicial authority, that the manner in which this Bill has been presented to us is not good enough. First of all, it does not accord with the constitutional obligation that it must be expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion. More important is that it is presented to us in this form although the Government know there is not a time of war or armed rebellion, much less a time of conflict in which the State is involved.
In order to bring in a measure such as this, one of two conditions must exist. First of all, there should be a war or armed rebellion within the confines of our jurisdiction, or a war outside the State in which we are not involved. Which way have the Government interpreted this? They have come down, as they probably think, safely in the middle, and of course there cannot be a middle in this situation. The Taoiseach, and the Minister for Justice introducing this Bill, referred to two significant matters, one, the murders of the British Ambassador and Miss Cooke and the break out from Green Street and two, the armed conflict which exists in Northern Ireland and which, they say, has spilled over here. There was no suggestion that the armed conflict existed here, but insecure as they were, the Taoiseach went on that of course we had the two terrible deeds of the murder of the British Ambassador and the Green Street break out.
I trust the Deputy will not stray too far from the Bill.
I am analysing the Title to the Bill. These two events were thrown to the public and to us here as being the reason for the declaration of an emergency. Either those events constitute war or armed rebellion or they do not. Is what is being done in the North of Ireland, terrible as it is, an armed conflict of the type defined in the Constitution? One of these things or all of them must be so clearly referrable to the Constitution as to justify us taking this action. Of course none of these events was definable as being of such character as to justify this action.
We had from the Taoiseach a long analysis of all the robberies—they are certainly to be condemned—and of all the infringements and the terror that have taken place here or elsewhere. But at no time did any Member of the Government have the honesty to say they were relying on any or all of these, that clearly a time of war or armed rebellion exists.
What was the reason for internment in 1956?
The Deputy may make his speech when the time comes.
That was a very good question.
I have not heard from the Deputy yet and I hope he will have very valid points to make when his time to speak comes. Either there is or there is not a state of armed rebellion in this country. If there is not, it is not the function of this Parliament to convey the impression to the public that there is. As has been stated by almost all the speakers from these benches, the consequence of this legislation may be to defeat the Government's purpose, which is to diminsh the limit of violence. It could, and I hope this will not be the case, by over-reaction have the opposite effect.
By virtue of this inappropriate declaration and what we regard as a misapplication of the constitutional provisions, we look at what this Bill does and we see why the Constitution lays down such stringent safeguards. We take the view that this Bill purports to give immunity to itself against the constitutional rights which a citizen has and can vindicate in our courts. Anything done or purported to be done under this Bill cannot be effectively challenged in our courts. That is a major breach of the fundamental rights of the citizen, a breach which can only be justified in a time of war or armed rebellion.
Under this legislation a citizen cannot take action if he is falsely imprisoned. We may think such things are academic but when a person has been falsely imprisoned the right to vindicate himself is secured in our laws and can be implemented in our courts. This has happened quite consistently. That right no longer exists for a person detained under this legislation. If a person is a witness or an innocent bystander, and if a garda has reasonable suspicions that he was more than a witness, but was actually involved and it subsequently transpired that he was not, that man has no right to take action and the courts are powerless to compensate him for that false imprisonment. That is a very serious matter.
I think there is something like that in common law.
I am glad the Parliamentary Secretary acknowledges that what I have said is so.
I said that I think there is something in existing common law.
When it comes to his turn, perhaps the Parliamentary Secretary will tell me what the "something like it" is. Nothing quite as definite and as Draconian as this——
I do not agree with the Deputy, but even if he were right it would not be unique.
It is quite clear that in the event of a man wishing to bring an action for assault against a garda—which he would be entitled to do in normal circumstances—that right is now being set aside. It is nullified by what we are about to do by force of numbers on the Government side. This legislation is a recognition of how far the Government are prepared to go to secure "the safety and the survival of this State". That is the quotation used by the Taoiseach. He said that if this is done it will be necessary under Article 15 of the European Convention to derrogate from that convention in time of public emergency, threatening the life of the nation. Let us be realistic. Is the life of this nation being threatened? There are difficult problems facing us so far as terrorists and unlawful organisations are concerned but are we seriously saying that the life of the nation is being threatened to the extent that we are entitled to declare an emergency and introduce provisions in this legislation which can cut across the rights of our citizens?
We take the view that the Constitution has been set aside so far as acts done under this legislation are concerned. Of course the Parliamentary Secretary may disagree with that. Even if his view were correct, we must look to see what can the Constitution do, even if the Constitution and habeas corpus are not nullified by this provision. All it can do is inquire whether a person is held in accordance with the law—the law being the legislation we are about to pass.
We have heard some talk about the rights of detainees to legal advisers and access to legal advisers and counsel. Assuming that this Bill had—and it has not—that right enshrined in it and that the detainee has the benefit of the best legal advice available, he comes before the court which makes the application for habeas corpus under Article 40 of the Constitution which reads:
...the High Court and any and every judge ...shall... upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.
The garda is given the opportunity to justify the detention. How does he do that? He justifies it simply by saying that:
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.
In other words, all the garda has to do is to show that he suspects with reasonable cause that any of these alternatives applies and he will then have justified the detention in accordance with this Bill. All the solicitors and counsel in Ireland can do nothing to change it. What can that detainee do or say to set aside suspicion of reasonable cause the garda has on any one of four or five grounds? What argument can counsel make?
He can cross-examine and the garda can say: "Information has been given to me which suggests to me that he was here or there at a particular time". He may not have been but, if it is a reasonable suspicion for the garda, that is the end of it. Even in relation to a witness he can say: "Information has been given to me that this person was at or near the scene. We are not suggesting he was involved, but we believe he has information which will help us", and that is the end of it. That is a suspicion of reasonable cause.
The second leg the Parliamentary Secretary relies on is that habeas corpus is available. We say we do not even get that far. Because of the terms in which this Bill is couched, because it is intended for emergency provisions, literally the court will have little or no option, unless the person detaining the detainee were to say: “I have now discovered that there is some doubt”. On that basis the court would immediately make the order. The unfortunate thing is that it cannot be refuted by the complainant. How can he refute what is in the garda's mind as a reasonable suspicion? How can counsel get at that suspicion? How can a judge vindicate the complainant's position, when all the detaining garda has to establish is a reasonable suspicion?
That is why I say this is indeed— and I use the word in its literal sense —a terrible power which is given for very special reasons in a very terrible time of war or armed rebellion, but not in the type of conditions we have in the country at the moment difficult though they may be, and horrible though some of the things being done North or South may be. We have not got the conditions which justify those very serious breaches of fundamental rights, which justify the kind of thing I have illustrated. Once it is done in accordance with this law, I am afraid all the arguments are based on shifting sand.
Among other things the Minister said there is no need to write in any provision about right of access to solicitors, doctors, or anybody of that nature. He said that is in the Constitution already. I do not think the Parliamentary Secretary is quite so sure of that, and I do not think the Minister is quite sure either. Apparently they rely on Article 40 of the Constitution once again to guarantee the right of access to solicitors or doctors which we sought and failed to get and which this Bill does not provide. Let us look at Article 40. Apparently they rely on Article 40.3.1 which reads:
The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
If this Bill is to be effective, it means that right, too, goes by the board.
No.
Of course, it does.
No man can rely on that if it means what they say it does.
May I interrupt for a moment? The effect of the emergency resolution prevents a person from challenging detention but it does not deprive him of other rights, for example, his right of access to the courts and his right of bodily integrity. These are not covered by the emergency resolution.
They are.
If you were to assert that your right of access was being impeded because you were not let get to a solicitor, you could not answer that case merely by waving that Bill in the face of the prisoner's counsel.
In effect, this nullifies any act done or purported to be done.
That would not be an act done.
"Nothing in this Constitution shall be invoked to invalidate any law enacted ... or to nullify any act done or purported to be done in time of war or armed rebellion..."
The point the Deputy is making is that anything done in the duration of the time while the prisoner is in custody cannot be attacked. That is quite wrong. You might as well say that if a prisoner's children were taken away from him during the seven days he was in custody, he had no constitutional rights in that either.
We are concerned about the prisoner himself. Let us be precise. Let us not deal with children. The only thing they are deprived of is the presence of their father. They are not being deprived of their rights. The Parliamentary Secretary's analogy shows the weakness of his case. In any event, we hold that that right, too, has been set aside and, therefore, the constitutional guarantee to which the Minister and the Parliamentary Secretary so readily point as meaning that the person has that right to legal and medical attention and there is no need to write it into the Bill, is set aside, and even if he had that right of access to a solicitor, in the circumstances the solicitor could not do very much for him having regard to the manner in which this Bill has been drawn within the protection of Article 28 of the Constitution.
I now come to what the Bill actually does. In the course of some very interesting replies to our questions on Committee Stage the Minister made it quite clear that here we are providing—of this there is no doubt—for detention simpliciter. Some will call it internment and some will call it detention. It does not matter because the actual effect is the same. It means that, on the basis of this legislation, a person can be brought in and detained for seven days without having even one question put to him in the course of those seven days, without being examined, interrogated or questioned. The Minister has acknowledged this can happen and may happen under this Bill.
So much for what we are endeavouring to do to get at the source of criminal activity. So much for what we are endeavouring to do to find out who may or may not be involved in conspiracies, and so on. A person can be brought in and left there and released after seven days, and that is the end of it. The Minister said this is nothing new because people could be arrested under the 1939 Act and detained for two days. Quite consistently during the course of various replies, the Minister tried to confuse the 1939 Act with this Act. As Deputy Haughey indicated clearly this morning, there is no similarity between the two Acts. Deputy Haughey said this so precisely that there is no need to repeat it. There is another aspect.
The Minister talked in terms of arrest and detention involved in the 1939 Act. He seemed to say: "We are just doing the same thing, arresting a person". There is a very significant difference between arrest and detention. The garda can arrest a person with or without a warrant in certain circumstances for a particular purpose, for the purpose of seeking information, or questioning, or whatever. In most cases it needs the sanction and authority of the warrant. There are occasions set out in the Offences Against the State legislation when a warrant is not needed, but they have to act in accordance with the law when arresting a person and depriving him of his liberty which is what an arrest is. A person is not arrested just for the sake of arresting him and doing nothing. An arrest is made with a view to taking a charge. That is what the law establishes. That is the only way it can be operated.
For the Minister to imply that we are more or less in the same area here, except that we are talking about detention for seven days, is totally in conflict with the realities. The detention which he has acknowledged can happen need be for no other purpose but simply for the purpose of detention, not even for the purpose of getting information, but simply keeping a person against his will in custody for seven days wherever it may be convenient to do it. I am not saying that will happen in every case. I am not saying it will happen even in a significant minority of cases but I am sure that questions will be asked and information sought. The fact that the Minister acknowledges this indicates that the Government are not quite clear as to whether or not they want to introduce internment. They have introduced it under this guise, even for a limited minority of cases.
Surely that serious step can only be justified in emergency conditions of the type envisaged by the Constitution which certainly do not apply in this case. When we come to the question—exceptional though it may be—of the possibility of a witness being detained we can see all the horrific consequences of this piece of legislation. The Minister tried to associate this with the 1939 Act and told us that that was always there but the difference between two and seven days is very significant. We do not know if in any number of cases people were deprived, even for 12 hours, of their liberty and subsequently were found to be totally innocent. Now we are proposing to give an extension of that power to enable the Garda detain people for seven days. Surely this is a major breach.
The Minister acknowledged that witnesses may be detained for seven days if it is thought they have information relating to the commission of an offence and that is an extraordinary admission. It is fine to say: "We are not going after witnesses" and I know that in 99 per cent of the cases this will not be done but we are concerned to uphold and vindicate the rights of the 1 per cent as much as the rights of the 99 per cent. This Bill is trampling on the rights not just of subversives—they, too, have rights however much we deplore what they have done—but also on the rights of people who are totally innocent of any association with unlawful organisations or subversives of any colour or creed.
During the course of the Minister's justification for this Bill there were undertones as to the Garda integrity. When we question the contents of the Bill and the right of members of the Garda the Minister replied that each time we do this we are questioning the integrity of the force. He suggested that we were questioning the integrity of the Garda but if any disservice has been done to the Garda in the course of the debate it may have come more from him than from us. If the Minister implies that by questioning the procedures now being introduced we are undermining the Garda he is open to the charge that he is raising suspicions or doubts in the minds of our Garda Síochána that some of us have less than trust in them, a trust which we have. Each time the Minister raised the question about implications or imputations of the Garda by this side of the House he is raising that suspicion in the minds of some gardaí and even in the minds of some of the public. That is a very dangerous and totally unwarranted suspicion.
I hope when the Minister goes to the Upper House he will be clear in his mind that whatever suggestions are made from real conviction by way of positive amendments to the Bill he will not come back to that tired, sorry and dangerous line, an implication of the Garda Síochána. We are mature enough to know what is or is not an implication of the Garda Síochána Nobody on this side would allow implications of the Garda Síochána or the Army. In order to do the best service to the Garda Síochána the Minister should stop that line and let him and us analyse the provisions of the Bill and the protections that may be there to vindicate the right of the citizen and the good name of the Garda Síochána and, in the case of the other legislation, of the Army.
We have pride in the Garda Síochána and it is a wrong impression to give to the public that the man who holds the Office of the Minister for Justice or the Taoiseach under whom he serves are the only people who really have the faith and trust of the Garda Síochána, that they are the only ones who are fit to hold this because they identify with them in some way and we do not. It is a wrong impression. The Garda Síochána will be there long after we have discharged our functions here, long after we have changed places with the Government and other Ministers and other Taoisigh will support their position in this State as effectively as is now being done ostentatiously by the Government. The same can be said to apply to the Minister for Defence. They should take note of the dangers involved in that kind of projection and presentation. We welcome that even belatedly it has been recognised that every Member on these benches is free to make his case on the basis of what it represents without implications about right feet or left feet in certain camps as Deputy Esmonde made during the debate on the Second Stage of the Criminal Law Bill.
The Leas-Cheann Comhairle will recall that a gentleman on that side of the House during the course of the debate by his own acknowledgment and admission planted himself in the centre of the camp we were accused of having one foot in. I never want to hear from Deputy Esmonde, or any Member from that side of the House, any implication that we have even a toe-hold in a Provo camp much less a right or left foot. I resent such suggestions and will reject them in every way possible. If that side of the House want to start clear ing their lines, they should start clearing them of those who openly acknowledged it themselves and are supporting the Government.
Belatedly, the Minister for Posts and Telegraphs unsmeared us and we accept that.
But we fear it nonetheless.
He might resmear that side if the Deputy is not careful.
That Minister smeared us and said we were in the Provo camp some 12 months ago and if he is prepared to unsmear us all the others should take the same message and follow his line. In introducing this the Taoiseach referred to the need to derogate from Article 15 of the Convention on Human Rights. We agree. The Taoiseach will have to do that. We have recently had the report from the Commission on the breach of that convention following the case brought by this Government against the British Government for officially authorised torture and degrading treatment to citizens of the North of Ireland by the security forces of that state. The Fianna Fáil Government brought that complaint under that Convention to vindicate those rights, to terminate that torture and to ensure that wherever there is a breach of those fundamental rights as enshrined in that Convention, we as a Government will bring the matter to the attention of the Commission if so requested by anyone, from whatever denomination. The Fianna Fáil Government pursued that complaint.
Only because the present Minister for Finance insisted.
That is also my recollection.
That is a disservice not just to us but to the public spirited people from the North of Ireland who presented the information to us.
The then spokesman, Deputy Ryan, forced you to act.
It is a pity Deputy Ryan has not some of the feelings in 1976 that he alleges he had in 1971.
We relied upon that Convention in making the complaint that this Government are pursuing. We will be seen to be very inconsistent. Deputy Barry Desmond has said that he will feel somewhat embarrassed and less than consistent when he goes back to the Council of Europe next week and is questioned on all sides as to how this emergency legislation can be introduced by the very people who brought complaints against another Government, and who are pursuing complaints against that Government, when they themselves are setting aside fundamental rights on the basis that there is an emergency threatening the life of the nation. I do not know how Deputy Desmond or any other Deputy will be able to answer that question. Our position on this issue will not be of any service to what we can do for fundamental rights nationally and internationally, and it will not help in maintaining a harmonious relationship with the British Government which we all want.
I do not know whether the Government thought of all this when introducing this legislation. I do not want to be cynical but on two occasions the Minister, in justifying this legislation, said that if we wanted to challenge it there could be a general election. The Minister for Posts and Telegraphs assures us that that was never on the Government's mind. The Minister for Justice twice referred to the possibility of a general election and I feel that this may be one of the reasons they did not consider all the ramifications of what they have now done, ramifications both nationally and internationally. That reference was a scarcely veiled challenge, contained in two of the Minister's speeches and in the Taoiseach's speech. The challenge has been accepted but not in the sense they thought it would be accepted. We have vindicated our responsibilities and discharged our obligations here in the way we felt we should, and if the Minister wants to act in accordance with the last two lines of his script then on his head be it.
All of us want to achieve the eradication of violence. We think that this Bill will not do that effectively. Of late we have noticed that the political parties on both sides in the North have now suspended discussions on the basis, that they feel, and both sides have clearly said, that they can do nothing effective until they have an indication from the British Government of their intentions. We have been calling for such indications so that, as has been pointed out here this morning, we just do not get at the symptoms but treat the causes. Now it seems that our position on that has been vindicated not just in the South but in the North and to a considerable extent in Britain as well. Perhaps this may explain why the Minister for Posts and Telegraphs has had a change of mind.
That is not dealing with the Bill.
I am following the precedent established by Deputy Barry Desmond.
The present occupant of the Chair is just concerned with keeping to what is in the Bill.
I am keeping within the Bill. The purpose of the Bill, and the common hope and aim of all of us is the restoration of peace. This Bill is primarily directed at certain people; and those people have no care for the most fundamental right of all, which is the right to life. Those people must be prevented from continuing in their madness, but we do not think that this Bill is an effective measure against them. How do we as a Legislature react to them? Do we react by depriving people of other rights, because they are depriving people of the fundamental right of life? That is what is being done by this Bill. We are totally at one on the need to eradicate the surging violence, but we are obviously not at one on the effective way to do that. This Bill is only a reaction, the wrong kind of reaction, to the terrible deeds of some sadly misinformed, misdirected people. Until such time as the Government can see their responsibility to take positive initiatives as well as simply reacting, there is little hope that the tide of violence can be stemmed effectively. This Bill that we are about to enact will certainly not have that effect.
On the Second Stage debate of this Bill Deputy O'Malley drew eloquent contrast between the tone and atmosphere of the debate at that time, and the tone and atmosphere of the debate on the Offences Against the State (Amendment) Act, 1972 which he was promoting and he said that, instead of the reasonably peaceful and civilised response which the Government were getting last week, from the Opposition which they faced in 1972 the then Government were faced, I think he said, by ranks of hateful visages, roaring and shouting at him. I was actually abroad while that debate was on but I will take his word for it; it may have looked like that from over here, but I want to say now in as conciliatory a way as I can that the reason why the Opposition in those days, unlike the Government which they now form, was so strong against the measure Deputy O'Malley was promoting was that they did not believe the then Government were fit to operate the powers and did not deserve to have the powers the Bill contained.
That probably was an injustice to the then Minister for Justice personally, and probably to some of his colleagues, but I ask the House and Deputy O'Malley to consider in fairness the recent history leading up to 1972 and consider what the Fianna Fáil reaction would have been had the situation been reversed and had another Government within the previous 18 months been convulsed by the most appalling scandal of a political and violent kind ever to hit this country. Had a Government like that come along and blandly asked for these powers when the suspicion was widespread throughout the country, rightly or wrongly—I believe rightly —that the powers they actually did have had not been fully used or only half-heartedly used, what would the reaction have been? In the case of all of us that was the reason for the very incensed feeling at the end of 1972. It had nothing to do with the personality of the then Minister and I have thought since that his experience of those days more or less soured him. It had nothing to do with his personality, but it had everything to do with the question of confidence in the Government then running the country and the response, which I agree has been both rational and muted from the Opposition these days, reflects not only credit on themselves but it also reflects that they have no basis for mistrust towards the Government now doing their best, I hope rightly, to promote the legislation before the House.
When this debate started I drew attention to a matter of historical truth. This was naturally seized on and distorted. I was made out to be nostalgically looking back to when Governments were able to be tougher. I said not a word about nostalgia. I made it clear I thought the development was probably a good one. I drew attention to a matter of historical truth and I said that the State here, like many other States in the western world, had been forced on to the defensive and that the world was now much fuller of people who more instantly sprang into a posture of criticism of the state or whatever government was in power. That is a matter of historical truth and I do not quite see why someone should be labelled as nostalgic looking back to more authoritarian days.
I want now to make that historical truth relevant by reminding the House that the 1939 emergency resolution was used not merely in order to justify the Bill which contained a huge range of powers involving things like deportation, requisition, confiscation, regulating people's movements, censorship and so on, but it was also used a basis for legislation the like of which had never been seen in this country before, and quite certainly had never been seen in Britain since the 17th century, and has not had any parallel in any civilised European country since. Let me just remind the House that on the strength of the 1939 resolution an Act was passed by this House and the Seanad—I think it was the Emergency Powers No. 2 Act, 1941— which set up a military court quite distinct from the Special Criminal Court, a different court altogether, a military court to try such offenders as were sent to it for trial.
Is this relevant?
That court could pass only one sentence on conviction.
The Chair is waiting to hear the relevance.
The House is also waiting with bated breath.
I think the House should listen.
That court set up by that Act under that resolution sentenced to death about six men, four of whom were shot by firing squad. It had no jurisdiction to pass any sentence other than death.
The Parliamentary Secretary will appreciate that we must deal with what is in the Bill.
I do not want to try your patience, but I am anxious to point the contrast and provide a perspective between what is now happening and what happened under the rule of the late and much respected Taoiseach, Éamon de Valera. Indeed, he would be amazed to come in here today and hear the bleating about a measure which could not be seen, which would, indeed, be invisible to the naked eye, in comparison with the monolith of law and order he created, and quite likely had every good reason to create. That particular Act was, in my opinion, a horror and the late Jerry Boland, as Minister for Justice, called it a terror Act and a terror court, and he said he did not mind it being so described because they had to meet terror with terror. I hope no one will think now that I am nostalgic for that because I detest that kind of State and that kind of world, absolutely hate and detest it, but at the same time I have reservations about the genuineness and sincerity of the Opposition which makes such a fuss about a measure which is piffling compared with what we were expected to take in our stride all through those years.
The last speaker, Deputy O'Kennedy, made a number of legal points based on the wording of Article 28 and the wording of this Bill. I am not trying to start a new discussion but if this Government—I am sure the same would be true of Fianna Fáil if they were in Government—were up against a serious national problem which threatened the security and very existence of the State, apart altogether from the lives of the people in it, and the constitutional law under which we existed did not give us the power we judged necessary, I have no doubt this Government, or any other Government, would consider asking the people to amend the Constitution so as to permit that power to be there. I say that entirely on my own responsibility. I have not heard it mentioned by anybody in or outside the Government.
Is it a personal statement?
It is a personal statement.
It is not in his capacity as Parliamentary Secretary.
He said that. Listen to him.
If this Government or any Government could not do what it judged necessary to protect the people and the institutions under which it existed they would have to go to the people and ask for this power and, if I were the Government, I would not hesitate to do so if I thought the Constitution did not give me the scope which I judged necessary; and I would hope the people would support me in my belief that such powers were necessary and I am sure the same would be true of Fianna Fáil. That to me is the short end of the arguments based on the exact wording of Article 28. I know it is not a lawyer's answer but it is a politician's answer, and it will do for the moment.
Do whom?
A legal point made by Deputy O'Kennedy was to the effect that while habeas corpus—he admitted, and he could scarcely deny it—is not being taken away by this Bill, it would be no use because anyone who brought habeas corpus proceedings would be effectively met by counsel for the State simply producing this Bill, when it becomes an Act, and whatever evidence was necessary to show that the prisoner was being held under it. That is true enough. At the same time, public understanding of habeas corpus, perhaps, is an inflated one in that I think many members of the public think that habeas corpus means some kind of a magic legal formula whereby one is instantly set at liberty no matter what one has done or what may be the condition of one's imprisonment. Of course, it is not that, as Deputy O'Kennedy made quite clear. But it is an important and valuable remedy to test the legality of somebody's intention, to test every link in the chain by which somebody is being held under arrest. It is a most important mechanism in our legal system and is in no way being tampered with or reduced. It is absolutely vital that that be said and I am glad Deputy O'Kennedy admitted it.
Deputy O'Kennedy went a bit further than that in regard to what is in this Bill when he said that other rights which we were debating here yesterday—the rights of access to the courts and rights ancillary to them—were set at nought because of this Bill. That is not and could not be so. It would be as true to say that the right of access to the courts is taken away by this Bill as it would be to say that the right to bring up one's own children is taken away by it or that the right to private property is taken away by it. That is simply not true. The only respect in which constitutional rights are abridged or placed in abeyance by this Bill is in regard to arrest or detention for seven days. Every other right, both in respect of personal liberty itself and of every other kind is not touched by this Bill. In order that such rights be abridged or cut down the Government would have to produce a further Bill or a series of further Bills which there is at present no intention whatsoever of producing. When I say "at present no intention" I do not imply that there is at the back of anyone's mind such an intention. I am not aware, and nobody is aware that I know of, of any such intention. In order to do so there would have to be a series of other such Bills.
Any prisoner in custody in consequence of this Bill, when it becomes law, is deprived only of his power to rely on the provisions of Article 40 of the Constitution so far as concerns his personal freedom to move around. That is the only respect—a very important one I admit —but the only respect in which this Bill and what we have been doing here this and last week deprives him of what is normally his constitutional due. But it does not make him an outlaw. It does not deprive him of his civic rights in the way people in some countries are so deprived. All his other personal, fundamental human rights are absolutely intact. Any journalist, commentator, institute-for-this or commission-for-that that says otherwise is misleading and misinforming the public. Such comments have been contradicted so often that, if it is done again, I shall only have to conclude that it is being done with malice in order to inflame the public against a Government which is doing its best to protect them.
The right of access to the courts is as clearly established by the courts as if it were written in black and white. That right cannot be denied to a prisoner merely by waving this Bill in his face. He has got that right even during the time he is in custody for seven days. His right of bodily integrity is in no way infringed by this Bill when it becomes law. His ordinary right to be a member of a political party—provided it is not an unlawful organisation—his right of association, his right of free speech, his personal rights in regard to his family, in regard to bringing up his children, in regard to private property, in regard to practising his religion, all the other rights that we take for granted are absolutely unaffected; they are intact. The mere fact that he wishes to assert some of those rights, that he has reason to assert one of them during the seven days he is in custody does not make that right any less valid. I go along with Deputy O'Kennedy in regard to what he said about habeas corpus but I must flatly contradict him in regard to what he says about the rights of access to the courts. That right is a quite separate one from the one of personal liberty and simply waving this Bill in the prisoner's face will not deprive him of it. Any police officer who thinks he can deprive a prisoner of that right is in for a shock.
I want to make one more point, also something which Deputy O'Kennedy mentioned in regard to what this Bill contains. He brought up the subject matter of the last amendment on Report Stage that we discussed this morning. He referred to the possibility of somebody being held for a purpose, if you like, not connected with trying to repress subversion but merely to keep a witness out of the way. I believe that neither the Bill nor the emergency resolution would justify something of that kind. I do not think this Bill could be lawfully relied on merely to keep a witness on ice, so to speak, for seven days. That is an expression of opinion and like every other expression of opinion about what the courts may or may not do remains to be tested. That is my opinion and I believe that the misgivings which the Opposition expressed in that regard are unfounded.
I hope we will all be here to see this Bill lapse, to see this Act go out of force, that it will not remain on the Statute Book as long as the Fianna Fáil emergency resolution remained, or, indeed, as long as the Fianna Fáil internment proclamation of 1957 remained in force. Until 1962 we were in a state where a Minister, by the expression and recording of his opinion, could have somebody locked up, without trial, not for seven days but indefinitely. The year 1962 was the last occasion on which that was possible. I hope we will not have to wait that long before the country quietens down enough to allow this Bill pass into oblivion.
It is a pity, for his own sake, that the Parliamentary Secretary to the Taoiseach did not take the advice proferred him in this House the other day by his own colleague and assistant Government Whip, Deputy B. Desmond, who told him that he gets up on his hind legs a bit too often. We have had another example of it just now. I do not think anything was achieved by the intervention of the Parliamentary Secretary, other than to add his name—and, of course, I am grateful for this—to the list of those who have apologised in this House in the course of the debate for the attitude which they and their respective parties took in 1972. I feel an extremely apologised-to person as a result of——
The Deputy should not spoil it all now.
——this string of expressions of regret from such distinguished people. One is always in the difficulty when one follows the Parliamentary Secretary to the Taoiseach. When one has just heard such outrageous expressions of opinion and legal certitude one is inevitably provoked into taking issue with what has been said—even though one might not have the wish in mind.
Some people are provoked easily, though.
The Parliamentary Secretary has given very learned opinions on the law and the effect in law this Bill and the Emergency resolution will have, when passed, as, unfortunately, one must assume they will be.
On a television programme one night last week the Parliamentary Secretary and Senator Brian Lenihan of this party were interviewed. I did not see the programme myself but I spoke to many people who did and all asked much the same question: "What kind of a clown is that fellow Kelly?". I think I will omit the reply I gave.
The word "clown" ought not to be attributed to a Member of this House.
The reason for the query was that the Parliamentary Secretary to the Taoiseach, who was, I presume, appearing on the television programme in his capacity as Professor John M. Kelly, author of Fundamental Rights in the Irish Law and Constitution, said that notwithstanding the passage of this resolution under Article 28 the right of the citizen who was arrested under this Bill to have resort to the courts for a writ of habeas corpus was not set aside. Senator Lenihan was somewhat taken aback that such a view would be expressed, presumably in all sincerity and said that of course that was not right and so on and the view was repeated. But it was right and that was the end of it. Everyone, whether they were Deputies, Press commentators, ordinary citizens or anyone else had to accept that as being gospel because Professor John M. Kelly had spoken.
We had an example of the same thing again today. The short fact is that what he said is wrong. The right of a citizen to have resort to the courts for a writ of habeas corpus as provided for in Article 40 of the Constitution is gone. In addition, during the currency of his detention and in connection with any matter arising out of it, all the other rights guaranteed to him in Article 40 are equally gone. There is nothing in Article 28.3.3º to say that it is only the right of habeas corpus that is abrogated. The Article states:
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...
Therefore, it is evident that the right not just to habeas corpus but any of the other personal rights guaranteed by the Constitution are suspended.
In the course of the debate here on Committee Stage the Minister sought to justify the non-acceptance of amendments which would have given a right to a detainee to be able to consult a solicitor or doctor on the grounds that there were rights in the Constitution. Even if there are— they are not there specifically—they are set aside by the very words of Article 28.3.3º which states, "Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas...". In view of the so called state of emergency which he got the House to pass last week how the Minister can argue that people who are detained under the provisions of this Bill have constitutional rights is quite beyond me.
At the start of this debate I was of the view that if the Government would justify the state of emergency resolution and the necessity for the Bill I would not oppose it and I am still of that view. Even at this very late stage if the Government would justify it, if they would tell me and every Member of the House why it is necessary to do these things and to suspend the Constitution for only the second time in history, to suspend the constitutional and legal rights of citizens——
The Constitution has not been suspended. On the basis of the Deputy's own argument it was suspended since 1939 and it was suspended when he was Minister for Justice.
If the Government would tell me why it was necessary to have the resolution passed last week and to have this Bill passed this week, I would be prepared to accept the necessity for the Bill if they can justify it. However, they have not justified in the minds of any Member on any side of this House the necessity for what they are trying to force through. They know that very well. If they could have the last month back there is nothing surer than that we would not have a state of emergency, no Emergency Powers Bill and no Criminal Law Bill. The whole thing has gone sour on them. As they well know, it was tried out as some kind of political trick and it has rebounded on them. They are extremely sore and sorry they ever tried it.
It is a pity this kind of thing should happen in the security area because it is something one would hope would be free of the kind of political manoeuvring which was attempted. Unhappily it is not free of it and the Government have come unstuck on what they have tried to do. No doubt they will force through the two Bills. They got the resolution through the Houses of the Oireachtas and they will do the same with the two Bills. They will have achieved what they ostensibly set out to do but, of course, they will not have achieved what they really set out to achieve.
Which was what?
A bomb-making factory in Dublin that has cost the Dublin people £2 million in damages. Does the Deputy think that is a small matter?
I was not referring to that. I am talking about this legislation. The bomb-making factory to which the Deputy has referred was discovered without the aid of this Bill because it is not passed.
It shows the necessity for it.
Order.
It was discovered without the aid of the resolution which has no effect until the Bill is passed. It is not necessary to declare a state of emergency in order that the Garda Síochána may search a house where they suspect there may be bomb-making equipment.
Surely it is directed at the security of the State when people are prepared to behave like that?
Unfortunately people have been prepared to behave like that for some time——
Is it not about time we faced up to that?
It is not necessary to suspend the Constitution in order to arrest those people and to charge them.
The Constitution is not suspended and the Deputy knows that.
It is not suspended? Then we did not pass the resolution under Article 28.3.3º?
It is no more suspended than it was when the 1939 legislation was passed.
May we get back to the Fifth Stage of the Bill which is very limited for purposes of debate as Members well know? Therefore, I hope that Members will confine themselves to what is in the Bill. Of necessity this is a very limited debate.
One thing that is in this Bill—on the admission of the Government—is that it constitutes a breach of the European Convention on Human Rights. To introduce legislation which they admit is in breach of that convention is a serious matter in itself and a regrettable one but to do it in the very week when judgement was published in relation to the case the Irish Government started in 1971 against the British Government for a breach of that convention seems quite ludicrous. To me it seems the height of hypocrisy. In particular, it has the practical political effect that it entirely lets the British Government off the hook so far as their proved misdeeds in 1971 are concerned. In the very week when the finding against them is published the Irish Government show their regard for the convention by doing something they agree in advance is a breach of the same convention.
That is mischievous. It is utterly wrong.
It is utterly wrong? The Parliamentary Secretary acknowledged that the debate on this Bill was useful and constructive. As he explained at some length, it was a totally different type of debate from the rather venomous debate that took place in 1972. Notwithstanding the usefulness, the calm and the constructiveness of the debate, only one of our amendments was accepted by the Minister. I have not yet received a copy of the Bill as amended either in Committee or on Report Stage so I am not sure where that amendment fits in although I think it will be inserted as subsection (5) of section 2. I am grateful to the Minister for accepting the amendment which reduces from nine days to seven the period during which a person can be detained without charge. While we still consider the seven-day provision to be too long, it is at least preferable to nine days. However, there were other equally valid and reasonable amendments put forward but, unfortunately, these were not accepted. The Minister's refusal to accept them would seem to contrast greatly with the opinion he expressed before these debates began when he said that the Bill was open to reasonable amending. It is regrettable that the Government did not see fit to respond to the nature of the debate from this side of the House in a way which would have won much greater public acceptance for this measure than there is now. Each day that passes in relation to this Bill causes greater disquiet among the public generally, causes greater anxiety as to what will happen in the future, as to why all this is necessary in the first place. The public are as mystified as are the Members of this House as to the necessity for provisions of this kind which set aside the guarantees of the Constitution. I should hope that during the debate on the next Bill the Government will be less obdurate than they have been on this occasion and that account will be taken of the reasonable arguments put forward.
Perhaps it is very difficult for the Government and, in particular, for the Minister for Justice, to consider sympathetically amendments put forward when the Minister for Defence came in here and in his usual fashion proceeded to roar to the effect that not one iota of the Bill would be changed.
I am sorry to interrupt the Deputy but he should know that he may not advert to what ought to be in the Bill and that what may be debated is specifically what the Bill contains.
A number of us, including Deputy O'Kennedy, have expressed the view that the long title of the Bill is defective. However, we did not table an amendment in this regard because we did not consider that to be our responsibility. I have spoken with quite a number of people all of whom, independently of each other, concluded that this defect exists. I drew attention to this point, as did several other speakers, during the Second Stage debate. I suggested then that the President should consider this aspect of the Bill when it is before him for signature and that he should consider using his power under Article 26 of the Constitution to have the validity or otherwise of the Bill in this regard considered by the Supreme Court. The Minister did not reply in any convincing or detailed way to our argument.
We are now approaching the end of what cannot be considered as an abnormally long debate since it has been conducted during a period of three or four days. I recall an Act which was much less important than this one and which was infinitely less fundamental—the Forcible Entry Act, 1971—on which the debate in this House lasted for about six months in all, when most of the month of July and part of the month of August of that year were devoted exclusively to debating that measure. On that occasion we had the spectacle of the present Minister for Posts and Telegraphs coming in here on the Report Stage and speaking for six hours.
This is hardly relevant.
I suggest that it is not irrelevant when one considers the useful debate we have had on this occasion and contrasts it with the circus performances we had in earlier years. The debate on this occasion has established the fact that there is no justification to pass this Bill. Consequently, I would appeal to the numberous Deputies on the other side and particularly to those in the Labour Party, who know very well that there is no justification for the measure and who are sick inside themselves at the thought of what they are being forced to do, to stand up even at this late stage and say that the legislation is obnoxious and that they will not support it. This is their last opportunity to show their dissatisfaction with the measure. If they have the honesty to express that point of view they will be rendering the country a considerable service.
This morning we had the spectacle of Deputy Barry Desmond trying in some extraordinary and convoluted way to tell the House that he thought the legislation was right and that he would be happy to support it despite all the reservations he has expressed in regard to it both publicly and privately during the past two weeks. This is the last opportunity the House has of doing what unquestionably the great majority of Deputies know to be the right step to take, that is, not to pass this Bill. I can do no more than point out that fact to them.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I shall not detain the House very long at this stage but I rise to speak on what will be the effects of this Bill, in particular what will be the effects of section 2 (3) which allows for the detention of a person for 48 hours and thereafter for continuous detention for a further five days.
A further aspect of this Coalition Bill—I do not exonerate the Labour Party from this—is its inbuilt mechanism which directly hinders a citizen in any attempt he may make to appeal against detention. Another point is—anyone who studies mathematics has use for the term "power" and knows that it has a multiplier content—that this Bill will have a dastardly multiplier effect. How, for instance, does it help to promote a person's basic tenet to endeavour to prove his innocence until he has been proved guilty?
We must ask ourselves whether it is progressive legislation. There has been a resounding echo daily in newspapers and radio to which the Parliamentary Secretary to the Taoiseach might give us some reply. Why are there all these adverse Press comments on this Bill? The Parliamentary Secretary, of course, would say the media are trying to bring down the Government in what he might call a daily tirade. What they are doing, of course, is echoing the expression of the horror of the people at this repressive legislation.
Does this legislation help to provide freedom and liberty to our citizens? Did any of the Deputies hear on radio the other morning a tourism personality tell about 22 young potential tourists from Germany who had cancelled a holiday in Wicklow because of that state of emergency here? Is this to be one of the "progressive" effects of this Bill—to deprive our citizens at home of liberty and to deter tourists from coming here? I heard a company director talking about telex cancellations of holidays and of a man in Frankfurt asking for the German translation of "emergency".
Is this Bill the tip of the iceberg? Have the Government bitten off too much in this legislation? For three years we on this side have been accusing them of not governing. Now we can level a worse charge at them, that of mis-governing. They are the people who a few years ago were the vanguard of the protectors of liberty, the people who encouraged citizens to go into the streets to demonstrate. Now, in 1976, they are not as vociferous as they were in 1972: Now they mutely follow each other into the division lobbies instead of following the footsteps of demonstrators in the streets of Dublin four years ago.
In section 2 (4) there are three status positions, a person who may be charged, a person who may be released and a person who may not be released on the expiry of a period, but not written in, but nevertheless there is a fourth, that there can be repetition, that the arrest and release can be done over and over.
This side of the House offered several constructive amendments and in doing so we stated clearly that we entirely supported the security forces. We have confidence in the Garda and Army. All these reasonable amendments were rejected. Even at this late stage I suggest to the Minister that he should withdraw this Bill which is aimed not at promoting but at restricting the liberties of our people at home and of doing irreparable damage to our people abroad and to our tourism.
This is the last opportunity Deputies will have to speak in this House on this Bill. I wish to make a couple of points which I think should be made. It seems to be emerging that the main object behind the three pieces of legislation is to introduce the power of detention for seven days, and it seems to me from some of the remarks from the Government benches that this is not regarded as being very serious. One Deputy said: "After all, the Constitution is not being suspended". Others referred to such things as internment. If the security forces have the right to detain any person for seven days I cannot see what use the Constitution can be to such a person. A Garda superintendent can detain him in some place or another for a week, whether he is guilty or innocent, and as far as he is concerned the Constitution has been suspended.
It seems to me that the declaration of emergency passed last week by this Dáil has created a false impression in other countries that a state of war or armed rebellion exists here and that this declaration was made so that this Bill could be introduced. While the Minister has given a little additional information on the reasons why he felt it necessary to give this power to the Garda, he has not given sufficient information to convince this party that the fundamental deprivation of liberty involved is justified.
Since the emergency was declared on the eve of the last war, the period during which security forces could detain—that is, the Garda as distinct from the Minister or the Government signing orders—has never been greater than 48 hours. Now that period is being extended by a further five days. I agree that circumstances could, and at some time in the future may, exist where this kind of power could be given for a limited period with adequate safeguards, but I do not think such a situation exists here at present.
However, the Government have a majority and must bear responsibility for any decisions they take or for any errors or injustices that may arise from the exercise of this particular power. If exercised, this power is dangerous because if we allow it to continue it can create a police state situation. I am not saying that is going to happen; I am saying it is possible. If these powers are needed and used—it remains to be seen how far they are going to be used—we must hold the Minister responsible for ensuring that the right of access to legal and medical advice is available to any person or persons who may be detained under the authority of this Bill. I believe such a right is essential if persons are detained in this way because they will not have the ordinary rights of citizens available unless the Minister makes provision for them.
I believe the fundamental problem facing the people of this island is the real emergency that exists in the North. So far, neither the Government nor the British Government have faced up to the real problem— which is a political problem—which has created various forms of political terrorism here since early this century.
I have listened with rapt attention to one of the Government speakers trying to assert by force of volume and repetition rather than by argument that the constitutional rights of our people will not in any way be diminished except in one respect, namely they are being denied their freedom. It seems to be considered an assurance that since only the freedom of the individual is in jeopardy or being denied we should be grateful to the Government. If that were absolutely correct—which I have every reason to believe it is not —we might have some difficulty in attempting to swallow the pill that has been prepared here by way of the Emergency Powers Bill and not feel too badly about it or have any great fears about the application of its contents if finally passed by the majority that support the Government.
I neither rely on what has been said nor on what I have read of the happenings of the past or the terms of the measures of the package now before us—we have already disposed of the motion; rather I have regard to the people who operated it in our behalf since 1939. When it could not be sufficiently and completely justified by all sorts of arguments why this Bill and these measures should be agreed, Government speakers tried to make good their lack of convincing argument by harking back to 1939. This seems to be a global cover for any shortcomings these measures might be said to have.
It is a difficult situation to find ourselves in when the Government, with the best legal opinion and sufficient personnel to research all kinds of legal documents, statutes and records over the years available to them, are insisting that first, what we are doing is constitutional and, secondly, that what we are specifically proposing to do in this Bill does not wipe out the protection conferred on the individual by the terms of our Constitution. I do not rely only on what I have heard and read of the arguments for and against. I rely to quite a degree, as Government speakers have done, on taking my cue from 1939, the only other time in which we had a declaration of a state of emergency arising from which we had emergency powers legislation.
As reported at column 11, Volume 77 of the Official Report, Deputy McGilligan, speaking on the first amendment of the Constitution which was being made as a precursor of the passage of a declaration of emergency which, in turn, was necessary in order that emergency powers legislation could be brought through the House, said:
On the resolution itself I can only say that it had been an ordinary occurrence to people visiting a country in the course of the last couple of years to be shown over the points of strategical importance and be told the positions that have been mined and the precautions that have been taken to blow them up.
This is really what I want to quote and it is a continuation:
This country now finds itself facing a state in which there is a national emergency, and the best it can do is to blow up the entire Constitution. I do not say that it is not necessary to do that, but let us be clear that that is what we are doing.
I have allowed the Deputy to make quotations but they are hardly appropriate on this Stage of the Bill. The Deputy will know that what is at issue now is what is contained in the Bill. I trust he will confine his remarks to what is in the Bill rather than what he feels should be in it.
I hope to make it clear that is what I am attempting to do. I apologise to the Chair if I appear to be putting the cart before the horse in coming to the quotation too quickly. I am attempting to show the agreed mind of the Opposition and the Government at that time in amending Article 28.3.3º. There was, and can be seen to have been, general agreement between the then Opposition and the then Government that recourse to a declaration of emergency and the subsequent introduction of emergency powers led to the abrogation of Constitutional rights.
That is what I am trying to make clear as best I can. It is quite evident from the debates that took place then. I do not do this for the purpose of harking back to 1939 but because it is the only place from which we can derive any knowledge gained by experience as to what the situation was, how it was approached, and what the attitude of the Government was. Government speakers have shown themselves extremely prone to flash back to 1939 when they are short of another argument. What Deputy McGilligan said then was not denied, is not denied and apparently cannot be denied. The then Deputy Cosgrave had something to say as well from the front bench. He was the first speaker from the Opposition as he would be expected to be. I quote——
The Deputy is harking back again. I feel I should remind Deputy Blaney that the motion appertaining to the declaration of emergency has been passed by this House and is not open for further discussion. What is open for discussion now is the Bill before us and what it contains.
The Bill is only possible if what has gone before it is valid.
The Deputy is straying very far from the Bill. I very much wish that he would come to it.
I am immersed in the Bill. I am practically bogged down in it. I am endeavouring to show the clarity of past generations which seems to be lost to those on the Government benches today. They still tell us on this Stage of the Bill that what I have referred to from 1939 is not true of today's situation.
The Parliamentary Secretary to the Taoiseach, Deputy Kelly, a short while ago charged that anybody who says the constitutional rights of our people are denied can only be malicious in their intent if they repeat that. These may not be his exact words, but that is the exact meaning as I understood it. He conditioned that by saying: "other than freedom of movement". In other words, he was saying: "You can have everything and no bother to you, but you may not be free to move as, where, when and how you wish." He also said full access to the courts would be available in all other respects. The Bill is tied to and suspended from and draws its very existence from the declaration of emergency.
This Bill is defective in its Title and does not conform with Article 28.3.3º of the Constitution in that it says it is an Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a resolution. I submit that that is invalid in that it depends for its existence, purports to conform to and draws its authority from Article 28.3.3º of the Constitution. That Article is more confined in what provides a situation wherein an emergency powers Bill would be properly before the House and would be a valid Act if passed. There is no mention in the Title of time of war or armed rebellion and it is faulty in that respect.
Two words in that subsection of Article 28 highlight the position, they are "vital interests". In what manner has the Minister or any Government speakers shown that this legislation is entitled to be given the standing of law when it has not been shown that what exists is a state of national emergency affecting our "vital interests"? I cannot understand how this has reached Final Stage against that background. Those first lines of the Bill are clearly not in conformity with Article 28 of the Constitution on which it depends for its existence.
There is no doubt that there was a serious emergency upon us in 1939 but in spite of that and the total agreement of all concerned—not one voice asked where the emergency was because it was self-evident—that did not deter speakers at that time asking the Government of the day to assure them that the state of emergency under the new amendment of the Constitution would not be utilised in future circumstances and in future years, such as 1976, to declare an emergency in circumstances that really were not an emergency.
I hesitate to interrupt the Deputy but he is harking back to an Act passed in 1939 and relating his remarks largely to that rather than dealing with the Bill before the House. I want the Deputy to deal with the Bill before us and what it contains rather than tell us what happened in 1939.
The question asked in 1939 is pertinent to the position today. For the second time in our history a national emergency has been declared and emergency powers are proposed to follow thereon and for that reason the question asked in 1939 is very pertinent. Would there be a danger of governments in the future in circumstances other than the most obviously dangerous national emergency conditions availing of the facilities given under Article 28.3.3º to declare an emergency which is not truly an emergency?
The Deputy will agree that the pros and cons of the emergency were debated and deliberated upon by this House by way of motion passed by the House.
Unfortunately and regrettably it has been passed but in the passage of it, it follows from it that these proposals in this Bill may not be annulled. In other words, contrary to what was said by the Parliamentary Secretary to the Taoiseach, Deputy Kelly, constitutional rights are set aside. From the operation of that and the invoking of Article 28 of the Constitution that appears to be possible. When the Article I referred to was amended it was made possible for an unscrupulous majority in the Dáil and Seanad by pretending to have an emergency and pretending to submit to the rules of law in the Constitution to create an emergency.
The Deputy is not obeying the Chair.
Those words are not mine. That was the answer given by the late Eamon de Valera who was answering a question posed by Mr. Norton. Mr. Norton asked for an assurance that this thing could not be abused and it was held out then that it could be but only by an unscrupulous majority in the Dáil and Seanand.
Will the Deputy please come to deal with the Bill before us?
This is exactly what has happened 37 years later almost to the day. We have had, by an unscrupulous majority of Government support in the Dáil and in the Seanad the very worst come true. So the fears the late Deputy Norton expressed at that time and the answer truthfully given to him by the then Taoiseach, the late Eamon de Valera, have come home to roost. By not saying anything further, they were quite satisfied that we would never see the day——
I have striven earnestly to get the Deputy to come to deal with the Bill before the House. He is not doing so. I repeat that he may not debate or question the declaration of emergency. That debate is over, that motion has been passed. We have now come to deal with the Emergency Powers Bill, the Final Stage, which is of necessity very limited, in respect of debate.
Sir, it is limited I agree but not so limited that it is not possible to discuss it in an intelligent way. Article 28 of the Constitution 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 purportting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and "time of war or armed rebellion" includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.
To begin with, I am saying that the title to the Bill is defective. I am saying also, not by any deduction on my part but by the clear statement in subsection (3) of Article 28, that the Constitution may not be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing public safety and the preservation of the State in time of war or armed rebellion. The title is there for all to see. That same subsection puts beyond yea or nay what is already written in the opening lines, that is "... or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law". I cannot understand or even begin to see the slightest glimmer of light that can be cast upon this proposed legislation, or anything that gives the slightest grounds for state ments frequently made during the debate that we are not setting aside the Constitution in so far as the individual's rights are concerned.
At the beginning of the Bill is the very method prescribed by the Constitution whereby the rights of the individual may be abrogated through certain operations and the passage of certain things through the Houses of the Oireachtas. How can anyone in this House say that constitutional rights are not set aside? If there was any doubt or obscurity about the wording of that subsection then it would be understandable that there would be claims that it does and claims that it does not set aside constitutional rights. When it is clearly laid down in a special section—and that is not part of an amendment that may have taken place at a hastily convened meeting of this House as was the case in 1939 when the amendment to the Constitution was discussed— there is no room for doubt. The first seven-and-a-half lines to the first full stop in this subsection (3) were no doubt written with great care, with ample time at the disposal of those who were putting those words together. Before those words were put to the people for enactment as part of the Constitution they would have been exposed to the minutest scrutiny.
I am very anxious for the Deputy to come to deal with the Bill. I want to dissuade him of the notion he may have that he is entitled to make a Second Reading speech on this the Fifth Stage of the Bill. That is not in order. I must ask the Deputy to come to the Bill before us.
Sir, I apologise for any undue time I appear to be taking on this matter. The Bill brings about, is intended to bring about and will undoubtedly bring about a derogation of the protection of our Constitution so far as the individual is concerned. Not only will it take away the rights enshrined in the Constitution for the protection of the public but it will also set us outside the pale of the European Convention on Human Rights. This is part and parcel of the Bill, and it is because of that most serious and unwarranted interference with the rights of our people that I talk at all on this Final Stage. As we know only too well, a simple majority of this House and of the Seanad will be sufficient to pass this legislation no matter what is said, no matter what is right or what is wrong with this Bill, that is, unless the Labour Party have had further gatherings and have come to further conclusions that show not only that they are concerned about this Bill and the one that is to follow but that they are positively against it. But that is the most unlikely happening as we have found from the various criticisms made on this measure by some Labour speakers who did not follow through their criticisms but went in the reverse direction, which, as I said previously, was the bob-each-way job.
This is quite irrelevant.
Surely Deputy Blaney will be entitled to endeavour to persuade the members of the Labour Party to vote against the final stages of the Bill?
I am striving earnestly to get the Deputy to come to the Bill.
I suppose it is hard to be relevant, and if the letter of the Standing Orders were applied absolutely rigidly it is unlikely that there could be any worthwhile discussion at all. The Chair has the onerous job of trying to interpret the rules in a manner that makes the House work, and it is difficult for many of us to work in a manner that is entirely satisfactory to the occupant of the Chair. The Chair tries to follow the rules set down for his guidance and ours and the onus is, unfortunately, on him to ensure that the debate keeps within the general guidelines so that discussion does not, on the one hand get too far away, or on the other hand, become so restricted that it is stifled.
Undoubtedly, the Minister, having formally moved the motion for the Final Stage of this Bill and reserved his right to speak later on, will again avail of the opportunity to try to put our minds at rest about Article 40 of the Constitution and give assurances of a fair deal regardless of what may be done by way of declaration of emergency or under the provisions of this legislation. In doing that, I wonder would the Minister be inclined to go back to the only previous experience we have had of such measures as this and fill in the situation more fully than I appear to be entitled to do. While I do not agree with the ruling of the Chair, I am not disputing it in any way. It does appear to be drawing the long bow to go back on the records of 37 years ago and, indeed, to quote the dead in most cases. It is a sad thing to do, but nevertheless timely. Whether we agreed or disagreed with the people I have mentioned or liked them as personalities, those three or four people could, in so far as this young State of the Twenty-Six Counties is concerned be regarded in the light of father figures. We the children of those father figures would be expected to have, and indeed, did have, very great regard for what they had to say and to put on the record.
While we would be bound to disagree with the four from whom I have quoted—they were so much opposite in their political persuasions that no person could agree with the political outlook of any two of them, not to mind all four of them— what they had to say and the manner in which they said it, in the circumstance that existed at the time, and with the knowledge of the years that went before, of which we can read but did not have the experience of living through, must be of inestimable value to us in a full assessment of what we are now doing, it having been done only once before and that 37 years ago, having being carried through by the parties of those men I mentioned, namely, the Labour Party and the Cumann na nGaedheal Party of those days, acting in their various capacities as Government and Opposition at the time, a most critical stage in our history. As I say, I would hope the Minister for Justice, Deputy Cooney, will, in his short absence from the House, find it possible to have made available to him the relevant——
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I should say thanks to Deputy Molloy for the breather. Such is what I have to say that I should have called the House myself, but that is always possible as well. As I have been saying, when the Minister for Justice makes his contribution I hope——
A Deputy
When will that be?
He passed it up earlier. He is not out of court by any means. He is out of the House at the moment. I am not cavilling about that. I am sure his deputy will keep him well informed of anything going on that he should hear while he is away. For the benefit of those who might not have been present earlier, he moved the Final Stage and reserved his right to speak again. I have not seen it done before, but many things being done and proposed at this moment we have not seen done before either. Perhaps that could happen in the future as well.
Deputy Molloy is to be complimented on bringing into the House so many of those who are obviously going to support all these measures. So much are they imbued with the spirit of support for them that they are continuously conspicious by their absence.
Would Deputy Blaney deal with the Bill now?
I think his case is that he is persuading the Labour Party to vote against the Final Stages.
I am sure Deputy Blaney is well able to make his own case.
This thing is not going too well up here. I complained about it yesterday.
The loudspeaker is not working at all.
I hope that the Minister for Justice can lend his knowledge, experience and undoubted legal ability to clarify that which has become even more confused in the confusion that exists. There is more confusion in the minds of those who support him and his Government in the measure. I would sincerely hope that Deputy Cooney, Minister for Justice, will for his own supporters in his Government and for the public outside wipe out any confusion which undoubtedly must exist by assertions contrary to the facts such as have been made by Deputy Kelly, Parliamentary Secretary to the Taoiseach, that apart from the loss of freedom of movement—I think that is the term he used—the full constitutional rights are available to our people and that full access in all other respects remains to the courts. That is clearly and absolutely not so.
What I hope the Minister for Justice will do will be to unsay what has been said by Deputy Kelly, Parliamentary Secretary to the Taoiseach in this regard not for the purpose of putting Deputy Kelly on the right track or chastising him in any way but for the reason that a statement by a man of his standing as Parliamentary Secretary to the Taoiseach is bound to confuse those who have some dwindling attachment to the Fine Gael Party— the Old Guard as it were. It is for their benefit and not in any way to belittle the Parliamentary Secretary to the Taoiseach that I trust Deputy Cooney, the Minister for Justice, with the full authority of Minister for Justice and the promoter of this Bill, will clear the air so that no member of the public will be under any illusions, whether by confusion or otherwise, that there is any constitutional right that they may invoke in so far as the application of the terms of this Emergency Powers Bill is concerned if it becomes an Act.
Members of the House are obviously not too happy. Their absence would denote their unhappiness with what is going through. In addition, for their benefit as representatives of many, many thousands of our people with whom they will be in contact over the coming weekend and the week ahead and to whom the people will be looking for guidance on a matter as important as this and for the benefit of those same people who will by their votes put this Bill into the statute book, I hope they will be clear in their minds and not confused or clouded by statements of the Parliamentary Secretary to the Taoiseach. I hope they will be quite clear in advising those who will seek their advice, as undoubtedly many of their constituents will. They will be in a position to tell their people if there are no constitutional rights to challenge anything done under this Bill when it becomes an Act.
That, I would say, is an obligation on the Minister for Justice, not only as a Minister for Justice, not only as a member of the Government, but particularly as the man charged with the bringing of this measure through the Dáil and the Seanad later on. He has such an obligation and, indeed, it would be only fair to himself and to his Government that he should clear the air lest it could be said some time in the future that they had been a party to misleading the public into believing that public rights under the Constitution were still capable of being secured by invoking the Constitution and particularly, that those rights are not there to be secured by invoking— this further adds to our confusion— Article 40 of the Constitution. It is abundantly clear that this is not so and it is surely asking nothing more than fair play and the least that we can expect to seek an honest appraisal of the situation so far as individual and public rights are concerned under the Constitution as it was and still is but will not be tomorrow or the day after.
In that regard I sincerely ask the Minister not to side-step the issue because some of his own supporters or Members have been so adamant in putting what is undoubtedly a wrong construction on the situation and not to be put off doing what is clearly his duty and responsibility to do, to clarify and make known that there is no doubt that when this Bill goes through anything done in conformity with it may not be challenged by invoking the Constitution or annulled by having recourse to the courts on a constitutional issue because that is not on.
Two motions say we have a national emergency; so, we have a national emergency. It reminds me of one of my earliest recollections of the House when I was very green. We were in Opposition and there was a Coalition in office for the first time. I was trying to find my feet in the House and I was engaged in what was a usual gambit at the time. If you were not in the front row you took the time when the big fellows had stopped playing. The small fry got in on the Adjournment with the usual 20 minutes plus ten after the normal close of the sitting. I was over in the benches somewhere near where Deputy Brosnan is at present and I was keeping an eye on the clock as I had been advised to do, so that I would not overrun the 20 minutes and would not stop too soon lest I would give an advantage in time to the Minister replying.
Those sitting over there can see that you do not see the time on the clock accurately as one can do from directly in front. Obviously, I did not see things exactly as they were and I thought I had about two minutes to go when suddenly the then Ceann Comhairle said: "The Deputy must give way to the Minister". I thought I had timed things well and was going on to a good finish with about 100 seconds in hand when this happened. I was amazed and at that time I was not accustomed to being jostled as I would be now and I said: "But there are two minutes yet to go". The Ceann Comhairle just looked up at the clock and said: "When the Ceann Comhairle says it is ten minutes to 11, it is ten minutes to 11". That burst my little bubble and I naturally collapsed and the Minister got in.
I was reminded of that story by the fact that a state of emergency is a state of emergency once the majority—whether as suggested in 1939 that it might happen that there would be an unscrupulous majority in this House and in the Seanad—in both Houses say there is a national emergency. Then, regardless of how ludicrous that declaration may be, there is a national emergency. It is on foot of that ludicrous situation that these proposals are before us which would indicate use of the situation that once an emergency is declared to be, it is, regardless of what circumstances exist. Having hung our hat on that peg by the simple expedient of a simple majority in both Houses, then all of this type of thing and much more by way of emergency powers may be put through with the same simple majority and in the same way be pressed into service as legislation. By using the same process of describing this as a national emergency this Bill comes under the terms of the Constitution which provides for such legislation in time of emergency and we must then accept the declaration of that Constitution as regards wiping out any recourse to the courts in respect of upholding the rights of the individual as Article 28.3.3º says so clearly:
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...
We can read that as meaning that nothing in the Constitution can be invoked to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. If that is not the clearest way of indicating what we have been putting forward here, I do not know what it is. No matter how hard I try I cannot understand the Parliamentary Secretary to the Taoiseach, Deputy Kelly, Fine Gael Chief Whip, although I make allowances for him and his rather hasty personality when the pressure is on—and the pressure must be very much on in those times because he is more hasty than usual—when he says that what I have read out is not so and that it does not have the effects in regard to this type of law that is being passed, tied on to the declaration of emergency that was passed last week.
Not only does the Parliamentary Secretary deny that that is correct when it is written there in black and white, but he actually angrily chides and berates those who have, as he remarked, repeatedly said what I have just said, in that it is not correct and that if anybody says it after he has last spoken it will be regarded as malicious in intent. Naturally I have committed the grave sin of saying it since the Parliamentary Secretary spoke a short while ago. That is the statement made by the Parliamentary Secretary to the Taoiseach, Deputy John Kelly, the Chief Whip of the Fine Gael Party, that it is malicious in intent to quote the actual terms of the Constitution as it applies to the non-invocation of the Constitution in so far as upholding the rights of the individual is concerned in respect of this Emergency Powers Bill when it becomes law, or any other law enacted or any other Bill of a similar nature brought in under the Article of the Constitution that enables a declaration of national emergency to be declared. Ninety-nine per cent of the population do not believe that emergency exists.
We are berated by the Parliamentary Secretary to the Taoiseach and accused in advance that if we continue to say this we are malicious in intent, out to do damage in some manner or other. I have no apologies to make to Deputy Kelly, the Parliamentary Secretary to the Taoiseach, but at the same time I think that Deputy Cooney, the Minister for Justice, has an added obligation because of what the Parliamentary Secretary to the Taoiseach has said in this regard. The Minister for Justice as the man who is guiding this measure through the House and on whose shoulders will rest the responsibility, even if once removed, of applying the laws that emerge when and if this is passed——
On a point of order, may I draw the Ceann Comhairle's attention to the fact that the Deputy has been speaking for coming up to an hour and a quarter, and in the course of that time the Ceann Comhairle has had to draw his attention on several occasions to the fact that he was not speaking to the Fifth Stage of the Bill? In view of the fact that time is running out, and even though in so asking I will forfeit my right to reply, I ask that the question be put.
I am consenting to the claim.
The Minister in urging that the question be put appears to be in complete breach of a public undertaking which he gave, that he would allow the Opposition as much time as is needed to discuss these matters.
I gave no such undertaking. The Taoiseach was reported, I understand, as saying that reasonable and adequate time would be available. I think we have passed the stage of reasonableness.
On a point of order——
This is the final point of order I will take.
Could I be let in on what has just passed? I have not heard a word of it.
I have moved that the question be put.
The Minister has moved that the question be put. I have consented to the claim. I am now putting the question. It must be put without debate.
(Interruptions.)
Order, order.
This ridicules and is tantamount to a denial of the rights of the House.
People on this side of the House wish to take part in this debate and it is being jackbooted through now in full breach of the undertaking of the Taoiseach.
(Interruptions.)
I am putting the question.
On a point of order——
It is a disgrace. I have been listening to this debate for the past three days and I now demand that I be heard.
This is an example of how this legislation will be enforced by this Government. We now know what an undertaking from this Government given publicly is worth.
You are too late.
Before you put the question might I ask, as a matter of information, whether any other occupant of the Chair has ever accepted a motion of this kind without consideration over a period of time?
The answer is obviously "No".
No other Ceann Comhairle——
The question is: "That the question be now put". On that question a Division has been challenged.
(Interruptions.)
The Chair will not be interrupted. I am putting the question.
You do not know what you are putting.
Bully boy tactics!
Question put.
The Dáil divided: Tá, 64; Níl, 56.
Tá
- 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, Henry P.
- Dockrell, Maurice.
- Donegan, Patrick S.
- 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.
- 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.
- Jones, Denis F.
- Kavanagh, Liam.
- Kelly, John.
- Kenny, Enda.
- Kvne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- Ryan, John J.
- Ryan, Richie.
- Spring, Dan.
- Staunton, Myles.
- Taylor, Frank.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- White, James.
Níl
- 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.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- 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.
- Smith, Patrick.
- Thornley, David.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá; Deputies Kelly and B. Desmond; Níl; Deputies Lalor and Browne.
Question declared carried.
I am now putting the question: "That the Bill do now pass."
Sir, there is a point of order to which I should like to draw your attention. Deputy Brosnan, who has taken part in this debate, was offering and, in accordance with the undertaking given by the Government before this debate began, Deputy Brosnan thought he would be entitled to contribute to this debate. We were told in advance by the Minister for Justice that——
I must now put the question without debate: "That the Bill do now pass."
——that there would be no limitation on speeches and that undertaking has now been breached.
(Interruptions.)
The Chair could have heard what had to be said. The Chair did not have to put the question.
I acted in accordance with the Standing Orders of this House.
That is completely out of order.
What other Ceann Comhairle in the history of this House has ever done what the Chair has just done?
It is a pity the Chair should be associated with a breach of undertaking by the Government——
No breach of undertaking, an abuse of parliamentary time by the two wings of Fianna Fáil.
(Interruptions.)
——and an abuse of the office of the Chair, if you had any respect for yourself.
Question put.
The Dáil divided: Tá, 63; Níl 56.
Tá
- 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.
- Griffin, Brendan.
- Halligan, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- 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.
Níl
- 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.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- 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.
- Smith, Patrick.
- Thornley, David.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond: Níl, Deputies Lalor and Browne.
Question declared carried.