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Dáil Éireann debate -
Tuesday, 14 Sep 1976

Vol. 292 No. 8

Criminal Law Bill, 1976: Committee Stage (Resumed).

Question again proposed: "That section 1 stand part of the Bill."

On the last occasion I was seeking clarification from the Minister on the making of suppression orders by the Government under the Offences Against the State Act, 1939, and I should like to ask the Minister again to clarify some points in that respect. Towards the end of the necessarily brief discussion on Friday last we were seeking information in regard to the basis for the Government's opinion which would enable them to make a suppression order under the 1939 Act, which provides in section 18 a number of matters which an organisation might do. Paragraphs (c) and (d) of section 18 provide:

(c) raised or maintains or attempts to raise or maintain a military or armed force in contravention of the Constitution or without constitutional authority, or

(d) engages in, promotes, encourages, or advocates the commission of any criminal offence or the obstruction of or interference with the administration of justice or the enforcement of the law...

Section 19 has the statement "If and whenever the Government are of opinion", and so forth, the Government may make a suppression order. Obviously, such a suppression order would be made only in respect of unlawful organisations: it is clear by definition that there would be unlawful organisations in respect of which no suppression order would be made.

I take it the Minister will accept that the conditions laid down by law are that the Government would form an opinion and the Minister seemed to assume from our questions that we were suggesting it was an airy fairy opinion which did not derive from factual evidence supplied to them. However, the statutory condition for the making of a suppression order is qthat the Government would form an opinion. At that point we asked the Minister whether an opinion had been formed. Does it not imply that the formation of an opinion is something that is less than justified or warranted by any information given to the Government?

The Minister talked about the onus that would be on the Government subsequently in a court application— the onus of establishing beyond doubt that the organisation was unlawful. The Minister will recognise that under section 20 of the 1939 Act it is the applicant, the organisation which were affected by the suppression order, who would apply to the court to have their legality determined—that it is they who would have the onus to prove to the satisfaction of the court that the suppression order should not continue to apply.

I simply want clarification from the Minister. I should like him to say whether he accepts the outline I have given in regard to illegal organisations and suppression orders. There seemed to have been significant confusion, particularly on the question of the Government's opinion and the procedure in regard to the court hearing. I take it the Minister will acknowledge that an organisation may be responding to the unlawful activities of another organisation and that this has no relevance in deciding whether that organisation is unlawful.

The Act provides that whenever the Government are of opinion that an organisation are an unlawful organisation—that they fulfil the conditions of unlawfulness as provided for in section 18—the Government may make a suppression order. The point I wanted to make on the last occasion, and I am glad of the opportunity to make it more fully now, is that in coming to such an opinion the Government cannot do so in any superficial, casual or irresponsible way. The Government can only form such an opinion when they have sufficient evidence to enable them to do so, evidence that could and would stand up to subsequent court questioning should that arise. Whether it is likely to arise is beside the point. The fact that it is provided for in section 20 of the 1939 Act that the legality of the organisation in the context of a suppression order can be challenged means that there is provision in the Act for a full hearing before the High Court and possibly the Supreme Court on the order made by the Government on the Government's opinion.

It is quite clear from that that there would be a serious onus on the Government to satisfy themselves not by just coming to an opinion on hearsay, on newspaper reports, on general popular reports or on common belief but on evidence that would subsequently stand the test in court. It is not just open to the Government to form an opinion, full stop. In forming an opinion the Government must have sufficient material evidence at their disposal successfully to contest an application for a declaration of legality. Whether any organisation at any time should be the subject of a suppression order is something that is monitored from time to time, but the unlawfulness of an organisation, as Deputy O'Kennedy pointed out, does not depend on the Government forming an opinion as to that fact or on the Government making a suppression order. It depends on the activities engaged in by the organisation.

It is much clearer from what the Minister said this afternoon that he has a clearer picture of his responsibilities and duties and how to deal with unlawful organisations. I would like him to let me know if an admission by the UDA or by the UVF to acts of terrorism or criminal acts in this part of the country could not be regarded as sufficient evidence of their being involved in these acts. If so, why does he or the Government not suppress such an organisation?

It is a question of the terms of the admission, who would make it and how it would be made. A newspaper report purporting to be an admission from an organisation of the type mentioned by the Deputy is known to us all. Statements are published in the newspapers over the names of fictitious persons—Captain Black, P. O'Neill and so on. A statement in the newspaper would not necessarily be evidence to justify the forming of an opinion that would subsequently stand up in court. The Government would have to know and be satisfied in terms of a court action as to the actual origin of the opinion and they would have to bear in mind that they are dealing with organisations that are organised in another jurisdiction. This would add immensely and possibly insuperably, to the burden of proof that would arise.

Does the Minister recall saying on the last occasion in reply to Deputy Haughey that to say the Government would come to an opinion would be to imply that the Government would act irresponsibly or without due consideration or words to that effect? Only the record will show what the Minister said. He now acknowledges that this opinion must be the basis of the Government's conclusion. I take it that he is not suggesting, when we reminded him of the statutory condition, namely, that of an opinion, that we were suggesting that this should be an opinion which was not well-informed or well-based.

I got that impression but I am happy to say it was the wrong impression.

I am glad the Minister acknowledged that because he was the person who took up the misinterpretation of the word "opinion". As far as I recall, Deputy Haughey was simply relying on the statute. The Minister seems to be at pains today to explain that the Government cannot come to these opinions lightly. We accept that. It has never been suggested that they should. The Government's obligation is clearly to inform themselves through the security forces and the information available to them, and come to an opinion of the type suggested.

Having regard to the well published and acknowledged activities of certain organisations, including the IRA and having regard to the type of investigation one would expect our Garda or Army to make in these activities, is the Minister telling us that he has no reliable information that would enable the Government to form a balanced and informed opinion?

The Deputy has strong suspicions about these organisations; so have I and the Government but it is not enough to have suspicions. I thought I made that clear when I spoke originally. It is necessary to have sufficient information and evidence that would subsequently stand up in court. One could not go to court on the basis of newspaper reports, rumours, suspicions or hearsay evidence. One would have to have hard evidence that could, if challenged, stand up in court and support the suppression order. The getting of such hard evidence in the circumstances and in the context of the organisations mentioned is most difficult. Because they are organised outside this jurisdiction that adds immensely and possibly insuperably to the burden. That is something that is available for the Government to do when they feel they can lawfully and legally do so within the confines of the statute. The Government cannot act in any way other than within the confines of the statute. If they felt able to act within the confines of the statute, and so comply with the statute, they would do so but there are great practical difficulties. As I said, it is not enough to have suspicions, rumours and know that something is a popular belief.

Am I right in taking from what the Minister said that he has no reports from the security forces that acts of terror have been committed within this State by the UDA and UVF?

I am not prepared to say what reports I have——

Either you have or you have not.

The security forces may have an opinion based on information that comes to them which may fall short of legal evidence. That is frequently the occasion not merely with regard to acts committed by these people but by various unlawful organisations.

At least this afternoon we are beginning to get clear what is the statutory position. Without reopening old sores, I want to suggest that the Minister, perhaps unintentionally, misled the House on the last occasion when he confined his remarks to the operation of section 18 of the Offences Against the State Act, 1939. He indicated that it would be necessary for the Government to move under the provisions of section 18.

That section is framed along certain lines and it is quite clear that in order for the Government to deal with one of these organisations about which we are talking they would have to be in a position to move openly in court against one of them and would have to have the evidence necessary. We are all agreed that the Government have the machinery of section 19 if they wish to avail of it. Section 19 is simple and straightforward. It stipulates that

If ... the Government are of opinion that any particular organisation is an unlawful organisation, it shall be lawful for the Government by order ... to declare that such organisation is an unlawful organisation and ought, in the public interest, to be suppressed.

I want to direct the Minister's specific attention to that wording: "If ... the Government are of opinion ... it shall be lawful for the Government ...". The Minister is suggesting here that there would be a possibility, if the Government did not have evidence on which to base their opinion, that they would be acting unlawfully. I suggest that such an interpretation does not come within the meaning of the section as framed. All that is required simpliciter is for the Government to be of opinion and everything is lawful.

The Minister then rightly directs our attention to section 20 which indicates that any person who is aggrieved by one of these suppression orders made by the Government can move in the High Court to have it set aside. The Minister must admit that, in this regard, that is irrelevant. In the context in which we are talking section 20 does not arise. That section is obviously framed to meet the situation in this part of the country where some organisation claims that even though the Government might not like their activities they are, nevertheless, legitimate and legal. Such an organisation can go into our courts and have that position established. We all know there is no question of any of the organisations we are talking about taking such a course of action. If the Government are of the opinion that one of these organisations deserves to be suppressed in the light of information available to them, that is the end of the matter. That organisation can be suppressed.

We then come to the question of whether or not the Government should suppress one of these organisations. I believe the overwhelming majority of the people in this part of the country would support the Government in suppressing one, or two, or three of these organisations by name. Not alone would they support the Government but, if they could articulate their views at present, they would demand that the Government should suppress them in the interests of public safety. I and others on this side of the House know something about the workings of the Department of Justice and the security forces in this country. I am quite certain that, in the Department of Justice, there are files and records dealing specifically with these organisations. In normal peacetime—and I use the word advisedly—the Department of Justice and the security forces here keep an eye on every sort of organisation that might conceivably be unlawful or illegal, or have some sort of deviationist tendencies. That is normal practice.

I refuse to believe there are not in the files of the security forces here, and in the Department of Justice, adequate records of the organisations we are talking about. I am quite convinced detailed dossiers have been built up by our Garda and by the Special Branch on these organisations, on their activities, and on their membership. The Minister is right when he says they are based in the Six County area and, therefore, perhaps our authorities have not the same access to information about them as if they were based here. Nevertheless, I submit it is certain that there are comprehensive dossiers on these organisations in our security files. If that is so, I am also convinced those dossiers would show clearly that the Government are quite capable of coming to an opinion that these organisations are unlawful and should be suppressed on the basis of that information.

If the Minister will state to us categorically that he believes the making of these suppression orders might do more harm than good, that is one argument. He has not made that argument. He will have to convince us and the public that there is some good security reason for not making these suppression orders. Otherwise the public will demand that they be made. I believe these different organisations are responsible for certain atrocities committed here against our people. I believe these have been organised atrocities, that they have not been isolated incidents, that they have come about as a result of the operations of an organisation and that these organisations are capable of being identified by our security forces.

We are led to believe from statements by the Minister for Foreign Affairs, who is here with us at the moment fortunately, that there is close co-operation between the security forces. If that close co-operation exists between the security forces surely there is an avenue there whereby information such as is required on these organisations can be procured, information which would be sufficient to justify the Government in coming to this opinion. We believe these organisations should be suppressed. We believe these suppression orders should be made by the Government. The Minister has not satisfied the House or the general public as to why they should not be made. The Minister will not be able to persuade us that the forces at his disposal have not got sufficient information to enable the making of such orders to be justified.

I have no doubt I will not be able to persuade the Opposition in this regard because I do not think they want to be persuaded, or are capable of being persuaded. Deputy Haughey raised the point that I had not put the argument as to whether it is a good or a bad thing to suppress these people. I did not, because that does not arise until such time as the Government are in a position to be able to make a suppression order.

Deputy Haughey spoke in general terms about what he thinks is in the files available to me. Naturally for reasons of security I cannot reveal what information is available to me. The Government cannot come to an opinion under section 19 unless that opinion can be based on information or evidence which would subsequently stand the test of legal challenge. It is not good enough for a Deputy to come in here and refer to section 20, a section of an Act of Parliament, and dismiss it as being irrelevant. I said it may be unlikely that such a challenge might be taken under section 20. Whether it is likely or unlikely, the point is that section 20 will not go away.

As legislators we cannot ignore what is printed in an Act of Parliament. It implies quite clearly a test before the courts, a test which can only be decided on the facts on which the Government came to their opinion. It would be irresponsible for any Government to come to an opinion unless they had sufficient information at their disposal which would constitute hard evidence, not rumour, not hearsay, not even a policeman's opinion. That is not sufficient. It has to be more than that. I can assure the House that, if and when the Government are in a position to move on any of these lines, the Government will do so, provided the interests of the nation will be served thereby.

In that event, could the Minister tell us what specific evidence does he require which is not available to him at the moment? Could he give us some information as to what would be necessary to enable him to come to this opinion in a way which could not be challenged afterwards? I believe the question of its being challenged in our courts is not really relevant as a practical matter. Could the Minister give us some indication of what evidence he would require which is not available to him at the moment?

There could be a whole range of evidence: the structure of the organisation, its nature, its hierarchy, and so on, information that the organisation as such was formally involved in the activities which would leave it within the ambit of section 18, and that the activities carried out were not perpetrated by individual members but were organised by the organisation and carried out on the direction of the organisation. Obviously these are matters the proof of which would lead to great difficulty.

Has the Minister availed of the co-operation which exists between our forces and the Northern Ireland security forces on this matter?

The Deputy can take it the Garda are in touch with the RUC on all matters of mutual concern.

Surely if that is so, the Minister must acknowledge to us that at least the police force of Northern Ireland have evidence about these organisations. If the co-operation is of the nature and the order the Minister for Foreign Affairs tells us it is, surely that information is available to the Minister, apart from what I am certain his own police force can put at his disposal. I cannot accept—I trust the Minister will accept this as a parliamentary argument—from the Minister his suggestion that, in these circumstances, there is not sufficient evidence available to him and to the Government to enable them to come to this opinion simpliciter. That is all that is involved.

Deputy Haughey is arguing from a position where he has no information on this, where he makes deductions, where he draws conclusions from what he thinks should be the case. I am in a position where the information or lack of it is known to me precisely. As of now, the Government would not be in a position to come to an opinion within the meaning of the Act. Using the words "of opinion" in their common or everyday meaning is one thing, but that is not what we are entitled to do. It is somehow a fallacious argument to suggest that the Government should be able to. It is not a question that the Government should be able to but rather a question of can the Government come to this opinion within the meaning of the Act.

Is the Minister telling us that the Government do not have sufficient information in relation to the UDA, the UVF, Saor Éire or the UFF to indicate to them that these organisations have been or are engaged in the commission of crime or criminal offences?

I must recall again that the Act provides that the Government can come to an opinion, but the point I am making is that this opinion cannot be lightly or irresponsibly reached; it must be an opinion that can stand the test of a subsequent challenge. The Government may have certain information, beliefs and sources of information open to the Government conveying facts to the Government. I am not saying that the Government have no information, that they have no beliefs or suspicions about these organisations. Every citizen has, but the legal requirements of the Act could not be fulfilled as of now.

In case the Minister did notice, I was not relying on the legal requirements of the Act. One of the qualifications for an unlawful organisation—it is one of five —is an organisation that engages in, promotes, encourages or advocates the commission of any criminal offence. That was why I asked the Minister if the Government have any information in relation to these organisations which would indicate that any one of them engages in, promotes, encourages or advocates the commission of any criminal offence. That is a fairly wide ambit for the Minister. We accept without any doubt that it cannot be done on hearsay or on newspaper reports. But we find it difficult to accept, in view of the stated activities, which have not been repudiated publicly, of these organisations, especially those of the last weekend, North and South, that nowhere in the information available to the Minister through the security forces is there sufficient information to indicate that any of these organisations engage in, promote, encourage or advocate the commission of criminal offences. Such information would entitle the Government to make a suppression order.

It is difficult to understand that that information is not available. These organisations did not start yesterday. It is hard to understand the Minister's statement about organisations that openly and freely acknowledge themselves to be engaged in certain activities here and elsewhere. We have to acknowledge that the Minister and the Government make the orders. They have the information and what our opinions would be are totally irrelevant. However I am relying on the Act and I am not relying under any circumstances on anything other than what is in the law. The law is clear on this matter and it enables the Minister on that kind of information to make an order. The Minister should tell us if he does not have any information in relation to any of those organisations which would indicate to him and the Government that they are engaged in the commission of crime or encourage the commission of crime.

Can the Minister tell the House what organisations are proscribed in Northern Ireland? If a person is brought into custody suspected of a criminal offence and when in custody it is found that he does not belong to an unlawful organisation as proscribed but belongs to some of the organisations which are not unlawful are the powers of the authority circumscribed in that event?

I do not know precisely what organisations are proscribed in Northern Ireland. I understand—I emphasise the word "understand"—that the IRA and the UVF are suppressed. If a person is taken into custody on suspicion of being connected with a crime the fact that there is a belief that he may or may not be attached to one of these organisations does not circumscribe the powers of the Garda to deal with him. If that organisation was a suppressed organisation that person could be charged with membership of an unlawful organisation in addition to the crime for which he is in custody. The reason that he is in custody would not be prejudiced because the organisation he was thought to belong to was not suppressed. His membership of that organisation in another jurisdiction would not be an offence here.

Deputy O'Kennedy made the point that because of the wide terms of section 18 it was inconceivable that the Government could not come to an opinion but I disagree with him on that. We have to read these statutes strictly and as they are. As Deputy O'Kennedy knows, it is a rule of the construction of criminal statutes that they have to be construed against the prosecutor. It is clear from reading these sections together—they have to be read together—that it is not sufficient for the Government to believe on a newspaper article or on the basis of a report from one policeman to another that the terms of the statute are thereby sufficiently complied with to enable them make a suppression order. We may all feel that these organisations engage in, promote, encourage or advocate the commission of a criminal offence but it is not enough for me to believe that or have an opinion.

It is enough for the Minister to have an opinion.

It has to be able subsequently to stand up in court. Whether a person is acting as a member of an organisation or whether his actions were done on behalf of an organisation or whether those actions were done by individuals loosely describing themselves as members of organisations are two vastly different things in law within the meaning of these sections.

I see we are not going to get anywhere with the Minister on this section although we are reflecting a high level of public opinion here. Would the Minister not agree that it would in many instances considerably assist the Garda and the Army in dealing with certain crimes committed against the public order in this part of the country because of their hit and run nature if these organisations were unlawful and the members of them could be held as a result under the provisions of the Offences Against the State Act, 1939? Would it not be of considerable assistance to our security forces in combating atrocities committed by one of these organisations against our people if the organisation was suppressed, declared unlawful, and if people could be detained under the Offences Against the State Act as a result? Does the Minister not admit that that would be so? For that reason is there not a strong case in favour of suppressing these organisations, declaring them to be unlawful?

I agree with the Deputy that it can be of assistance to the Garda and the Army in certain instances to be able to detain people from the other jurisdiction on charges of membership. Then there is the question of proof. Will the chief superintendent be the proving person, or will proof rely on the possession of incriminating documents, which are rarely found nowadays? These are practical difficulties. Nevertheless I can see that there could be occasions when it could be an advantage, and this would be one of the desirable objectives, if the Government could find themselves in a position to make suppression orders against these organisations. I share the general feeling of abhorrence for these organisations. The House can take it from me that when it is proper to do so, having regard to the legal requirements, it will be done. There have been instances where people from the other jurisdiction have been arrested, charged and convicted on offences here and the proceedings have not been inhibited in any way. There have been no notorious cases where culprits were let loose or escaped justice because suppression orders had not been made. There could be instances where it would be of assistance to the security forces, and this of course is also a consideration kept constantly in mind by the Government.

The Minister is aware that bombs were placed in Belturbet which killed people, and in Swanlinbar, blowing up the church and the school, and some business premises, including some owned by the Minister's relation. The Minister is aware also that the UVF claimed to have done this. I do not want to enter into the sub judice area here, but it was reported in the papers that somebody was charged who was a known member of the UVF. Does this not indicate that the Minister could make a suppression order against the UVF?

In relation to the instances mentioned by the Deputy, it was common belief that they were IRA originated. In relation to the individual in custody, it was not reported in the newspapers that he was a well known member of any particular organisation. I cannot say anything more about that.

Is the Minister saying that it was generally believed that the church in Swanlinbar and the school and the business premises were blown up by the IRA?

On this definition section the Minister has not at all satisfied this side of the House. It is extremely difficult to accept the Minister's statement that the Garda and the Army, our security forces, have no firm information on any criminal act or terrorist act committed within our part of the country by either the UVF or the UDA. One would surely think that the frequency of these crimes would have given plenty of opportunity to our security forces to gather whatever firm information was needed to satisfy the Minister and the Government that they could suppress these organisations.

As is usual, recently, the Minister seems to be obsessed with the idea that violence only stems from the IRA. There are so many variations of those other organisations that it is hard to keep up with them, all being part of the pattern not to have themselves identified, and to blind the Minister and those in authority here to the fact that they are a danger to this State and to its institutions. Over the years they have repeatedly declared themselves to be bent on retaliation here. Of course this is in keeping with the Minister's statement—a statement made in the heat of the moment, which very often produces some truth —when he said that these organisations were merely a reaction to the activities of the Provisional IRA. The Minister's stance today looks absolutely ludicrous. It is clearly evident to him—and the information is available to his forces and is available to him from his collaborators on the other side of the Border—that these organisations are a real danger to our safety and to our institutions on this side of the Border. At Kathleen Falls in Bally-shannon, a medallion was found with UVF stamped on it. That was the first incident, when a man was electrocuted on top of the transformer station. Of course none of these things—Swanlinbar, Monaghan Town, Belturbet and so on—count. They do not "form an opinion" when one is obsessed and biased—as the Minister undoubtedly now is, to the point that he is completely blind to the situation.

Is the Minister aware that a place called the Border Inn was given the "once over" just a fortnight ago, and as usual the propaganda orchestration was such that the Provisional IRA were blamed? But, in a matter of hours afterwards, it was discovered that it was not the IRA but one of those cross-Border operations. Many of these organisations, far from being reaction groups to the IRA, are older than the Minister and older than I am. They were there long before the IRA, and their depredations were carried on without the light of publicity that has been shed upon them in more recent years. They were the underground people who did what the Establishment by suppression and discrimination were not capable of doing. The fact that the UVF are declared an unlawful organisation by the authorities in the Six Counties or in Britain should be good enough for the Minister. Surely this is an organisation that the Minister and his Government must have an opinion on, if only because their counterparts on the other side are of such an opinion and they have proscribed them and made them illegal.

If the Minister thinks that he can get any sort of acceptance of his outlook of chasing, day and night, imaginary and otherwise IRA, while at the same time ignoring these other organisations to the point that he does not even make a suppression order against them, he is living in a fool's paradise.

These are real threats, and the Minister must have sufficient evidence at least to have a clear opinion even if it will not stand up in a court of law. What evidence is given or sought at the moment other than the opinion of a superintendent as to who is a member of the one prescribed organisation that we have here, a superintendent who in all probability has been informed by some subordinate, who was in turn informed by some informer, who is never produced, and that is sufficient in our Special Court to convict a person charged with membership of the declared illegal organisation of the IRA. If that sort of link can be accepted and is, in fact, accepted in our courts, surely the Government—obsessed though they may be, blind though they may be, biased though they may be that violence comes from one source only, namely, the IRA—should find it possible to even things out and give the people, particularly in the Border areas, some protection from the members of these organisations that are day in and day out on our side of the Border.

The Minister has no concern whatever in that regard, no concern about what happens in Monaghan, Belturbet, Swanlinbar, Donegal, Drogheda, Louth or anywhere else. Any violence anywhere is immediately laid at the door of the IRA, despite the fact that time and time again it has emerged that the violence was not due to the IRA. I suppose these are acts of God. If it was not the IRA nobody else apparently had hand, act or part in it. These things just happened. I suppose they will continue to happen and the Minister will go along with this three-pronged package and hold himself out to be a great man in keeping law and order. Unless the Minister is biased to the degree that he is not fit to be where he is—and I am not suggesting he is not—he can have no doubt as to who were responsible for the Dublin bombs. I am talking about the earlier instances in which people were killed. Is the Minister suggesting that job was done by the IRA? Has he any knowledge of who committed the offence or from what direction it came? Is the Minister not a laughing stock, are we not a laughing stock, at the moment when the real culprits, those who can have the finger put on them, are the members of the British Army? We must talk sense about what should be suppressed and what should be illegal this side of the Border, what should be allowed and what should be proscribed.

The British Army has the record right down through the years and the Minister does not have to take my word for that, or the press publicity, or the television cameras. He has the evidence of the case he took and fought to a successful conclusion against that self-same British Army and the excesses of its members in the Six Counties. I suppose "Bloody Sunday" was something that happened out of the blue. That was something like lightning. Is the Minister aware two young people were killed near Bridgend in Donegal a short time ago? Has he any information that it was an act perpetrated by somebody from the other side of the Border rather than the IRA on this side of it? Does the Minister realise that that same army has perpetrated more violence on our people and are the prime cause of most of our trouble than all the other illegal organisations, including the UVF, the UDR, the UDA and so on?

The Minister must be living in cloud-cuckoo land when he comes in here and attempts to justify his inaction and his selectivity in the application of the law on this side of the Border. Can the Minister not feel compelled to declare these organisations to be unlawful organisations? Remember, their members in the Six Counties are in jails in the Six Counties for the crimes they have committed in the names of these organisations? Does the Minister not accept what is readily available, never mind what would be available to him from his contacts there and across in Britain, as evidence against any organisation except the IRA? Why is the evidence available of the crimes committed by these organisations not accepted by the Minister to enable him to form an opinion and present that opinion to his Government on evidence produced and adduced to the point where members of all these organisations are currently serving various sentences in various jails throughout the Six Counties?

Why is there this selectivity? We have the definite evidence of these people being in jail for their activities or interned in the concentration camps at Magilligan Point and Long Kesh? The Minister ignores this evidence. These do not belong to the IRA. They belong to half a dozen other organisations which use different names and thereby leave themselves free to circulate down on this side of the Border. The Minister knows these people exist. Numbers of them have been convicted. But the Minister takes no action because, wide as the provision available to him is, he cannot even reach the point where the Government could justifiably say they are "of the opinion". If they are not "of the opinion" in this matter I shudder to think what their attitude must be about many other more complex and difficult things facing us on other fronts. Can the Minister give us any inkling at all that he is even working towards being "of the opinion" that he could take action against the people who are our really dangerous enemies and who are declared to be such enemies? Has he even begun to think in that direction? Can we have an indication from him that he is thinking that way and that he is seeking evidence to back up what is being said day in and day out, back up the claims of spokesmen of these organisations to the point that he can go to his Government and get them to be of that opinion? If he cannot do that, then what we are doing now and what we have been doing for the past two weeks becomes an even bigger horse laugh.

It is on the conflict in the Six Counties that we are hanging this entire three-part package. It is to the national emergency declaration that we tied the Emergency Powers Bill. It is to back all of that up that we are bringing in this Bill, to supplement all our existing laws, but most notably the Criminal Law (Jurisdiction) Bill. All of that hinges on the one phrase used throughout, that is, "conflict in the Six Counties", or "Northern Ireland", as the Government prefer to describe it nowadays. While those people up there and in Great Britain would like to call it "Northern Ireland"—though it is not Northern Ireland in the real sense—or "Ulster", it is to be "Northern Ireland" in this House henceforth. It is not so long ago when it was not.

Inside the confines of that territory, annexed to us, there have been and are happenings that nobody in their sane senses could attribute entirely, in all instances or even in half of them, to the IRA and their activities. We know that members of these other organisations are in jails and concentration camps in the Six Counties, their activities having been proven in those courts for whose impartiality I have anything but regard. They have found in many cases sufficient evidence to put those people away, those people who are known to be, have been recognised as and proclaim themselves to be members of those said organisations which were in existence before the Provisional IRA was even thought about, were in existence generations ago, with the link obviously continued right up to the present day.

I am sure the Minister hardly intended to convey that their existence is justified merely because as he suggested in haste the other evening, of reaction to the Provisional IRA, who came into being as a result of the reaction of the people to the suppression of the Establishment deriving from the occupation of our country by the British. If we want to seek justification for everything done, we go back to the occupiers, not merely a few years back when the Provisional IRA arose from the need for protection of the people in the Six Counties, as the Minister well knows; protection from the people who are the backbone of these various organisations under their various guises. They sought protection from their depredations and intimidations, aided and abetted by the paramilitary force known as the B-Specials, aided at times but ignored in their excesses by the RUC, who in turn have been aided and abetted and indeed outstripped by the excesses of the British Army, the army of the occupier.

We are here talking in the circumstances of today about a national emergency as a result of armed conflict in the Six Counties, directly the result of suppression by the puppet Establishment forces up there and by the occupiers—all of it stemming from them. What are we dealing with? The Minister and his Government have an obsession about one organisation only. By their propaganda they have many of our people obsessed in the same way, without seeing the wood for the trees. They should live among them. They should go up and find out for themselves. They would then bloody well soon have an opinion, and a lot more than an opinion, as to who are the oppressors and what is the danger.

We do not intend to oppose the section because we are prevented from so doing by reason of its being the definitions section. Therefore, it would not be very sensible parliamentary procedure to oppose it.

Nevertheless before the section passes we feel we should make it clear that the Minister has not satisfied us in this matter. He has not put forward anything like a convincing case for not making the organisation about which we have been talking unlawful and suppressing it. We feel there would be widespread public demand in this part of the country for such suppression. We feel it would very considerably aid our Garda Síochána and Army in preventing or dealing with atrocities committed by these organisations if suppression orders were to be made by the Minister. We are completely at a loss to understand his reluctance to do so. He has admitted our case: that these orders would be helpful to our security forces in dealing with such threats.

The only argument the Minister could put forward is that he has not got sufficient evidence to enable him to do so. We cannot accept—and I am speaking about the Minister now in his parliamentary capacity—that statement from the Minister that sufficient evidence is not available to him to enable him suppress these organisations, making suppression orders against them and considerably assisting our security forces in dealing with the threats they pose to our people from time to time.

I am not going to be able to satisfy the Opposition because they are not going to be satisfied, no one of them. All I can repeat is that when it is proper for the Government to move in this regard the Government will move.

Deputy Blaney's reminder of the origins of the IRA prompted me to put this question to the Minister. Can the Minister tell us if a suppression order has been made by the Government in respect of the Provisional IRA? As I understand it, a suppression order exists for an organisation known as the IRA, Óglaigh na hÉireann, as I recall the Minister said the last day. Does a suppression order exist for the Provisional IRA as distinct from the IRA?

As far as the law is concerned, there is just an IRA. There would be various factions in it which adopt adjectives or descriptive titles for their own identification purposes. But, as far as the law is concerned, there is just one unlawful organisation; they are all the same.

I take it that that was established Government policy in 1971 and 1972 that—to use Deputy Haughey's phrase—there was no convincing case put forward for a suppression order against the Provisional IRA?

I imagine that the suppression order that was in existence at that time covered any offshoots or particular factions of the particular organisation.

The Minister has again indicated that he does not have the wherewithal to declare any organisation unlawful except, as he said, the IRA, whatever sort of IRA, Óglaigh na hÉireann. He said they were all the same. The other outfits about which I am speaking are all the same as well, except more so. The Minister does not have any opinion about this; he cannot get around to it. Does the Minister realise just how ludicrous his whole effort and our performance in this House in these last two or three weeks appears?

Does the Minister realise how ludicrous his performance now stands when we are discussing a section that deals with certain penalties for certain organisations and how it appears to the general public? If there is no co-operation from the public no law can be operated successfully as the Establishment in the Six Counties have found out. Because there was not that co-operation in the Six Counties we now have the situation that exists there. Yet, we are now proceeding in this House to deal in the same kind of traffic as the occupiers in the Six Counties have done during the years until there came the point when the general public would not tolerate it any longer.

We are using a colossal sledge-hammer to crack something that is relatively small. If we selectively apply it to part of the problem only, as the Minister undoubtedly intends, let him take heed. The public will not come with him on it because people in the Border areas, and even as far south as Dublin, realise that they must also take note of the activities of any or all of the various organisation; in the Minister's words they were all of a kind, were all the same, although I would not have used those words.

We have reason to fear all those people but yet we officially ignore that fact at Government level. We do this to the point where the Minister for Justice tells us that we have not sufficient information or evidence that they are a danger to us and, at the same time, we are laid down with sledge-hammers after one organisation. People will not go along with it and when that happens it will not be possible to operate successfully any laws that may be passed. To his great disappointment the Minister will find out that his obsession and his coloured outlook in regard to this matter is not shared by the people; without their sharing his views it is obvious that what he is proposing is not only unnecessary but is a waste of good time and money that the Government have not got and that the rest of us are not in a position to give them any more.

Question put and declared carried.

Deputy Keaveney and I are dissenting.


Question proposed: "That section 2 stand part of the Bill."

This section is self-explanatory. It increases the maximum penalties for a number of offences under the Offences Against the State Act, 1939. The first offence dealt with is the offence of usurpation of the functions of the Government and the penalty is increased to 20 years.

Will the Minister state how many convictions there have been in the last 20 years for that offence?

I am not aware that there have been any.

That was my impression but I did not have the records that the Minister has available to him. I presume the purpose of imposing heavier penalties—there has been a significant increase, in one case from two years to 20 years—is to act as a deterrent against the commission of the offences. The Minister has told us that as far as he knows there have been no convictions and I think there have not been any charges although I may be wrong. Will the Minister say what makes it necessary to increase the penalty for an offence, in respect of which there has been no conviction, so dramatically from two years to 20 years?

It is an extremely serious offence and, next to treason, it is possibly the most serious offence known to our law. Treason is provided for in the Constitution; the usurpation of the functions of Government is something less than treason but it is an offence in that category. I do not think there is a more serious offence in the area of constitutional law. It is necessary to mark the seriousness of the offence by increasing the penalty relative to the other offences in the Bill. There has to be a certain internal proportion between offences and the penalties for them. It would be somewhat incongruous to have a greater penalty for what most people would regard as a lesser offence. It is necessary to mark the essential seriousness of the offence by having an increased penalty and, secondly, to preserve an internal relationship, to preserve proportion. We should be glad that there have been no convictions and we hope in spite of the difficult times in which we are living that this increased deterrent will maintain that state of affairs. The fact that there have been no convictions is not necessarily an argument——

Apart from what the Minister has called an internal relativity—this is a new phrase to me——

They are normal enough words.

I have not heard the phrase used in criminal law. Generally the purpose of the court in imposing sentences is by way of punishment for offences committed or as a deterrent to those who might contemplate such offences. Simply to increase considerably the penalty, as has been done in one section, from two years to 20 years——

It is from ten to 20 years.

What about section 6?

That is in relation to ten years on indictment, two years on summary——

Section 6 (2) of the Offences Against the State Act, 1939 states:

Every person who shall attempt to do any thing the doing of which is a felony under the foregoing subsection of this section or who aids or abets or conspires with another person to do or attempt to do any such thing or advocates or encourages the doing of any such thing shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.

Section 2 (2) of the Bill we are discussing states:

The maximum penalty for a misdemeanour under section 6 of the Act of 1939 shall be imprisonment for 20 years and, accordingly, section 6 (2) of that Act is hereby amended by the substitution of "imprisonment for a term not exceeding 20 years" for "imprisonment for a term not exceeding two years".

That is a tenfold increase for a misdemeanour——

As the Deputy knows, a misdemeanour does not relate to the seriousness of the offence. It is a technical word to describe the category of the offence.

It is more than a technicality.

It is not.

I am not saying that the offence we are talking about is not serious but the section we are dealing with——

There are many misdemeanours carrying life imprisonment.

That may be so but the Minister will recognise that in this instance there is a tenfold increase in respect of a misdemeanour for which, on his admission, there has been no conviction.

And no prosecution.

Therefore, this seems to be an indication of the stated intention of the Government to take a very firm line in respect of offences of a type not yet committed.

Are we not pleased about that?

What is important is to ensure that whatever we do here will mean the minimum need for cases to be brought before our courts. The provision here, fortunately, has not been applied under the old Act so I hope that the Government have given serious thought to increasing tenfold, for instance, the sentences under subsection (2) and to what may be the consequences of that in so far as the existing penalty has proved to be effective in the sense that so far as we know no charge has been brought in respect of it. That is a good test of the effectiveness of any penalty. I trust that the Minister and the Government are satisfied that what they are proposing now will not have a counter effect.

We are so satisfied. It is inconceivable that it could have a counter effect. We cannot be deterred from doing what we consider to be right by any fear of adverse reaction from the enemies of the State.

I am not saying that.

The offence in question is the offence of the usurpation of the functions of Government or attempted usurpation of functions of Government. I cannot conceive of any offence more serious than that. It is in the very next category to treason which is the most serious offence of all.

It seems to me that the Minister is taking a very defensive attitude on this matter and that to some extent is symptomatic of his general approach to the whole Bill. Surely the situation in regard to this admittedly serious crime is that if there were a charge and conviction and if at the end of ten years' imprisonment, which is the existing maximum penalty for the felony, that term was found not to be sufficient, the functions of Government would have been usurped. In other words, if the offence is repeated despite the maximum period in prison, the function of Government would have been usurped. Therefore, is there not a point in Deputy O'Kennedy's argument that there ought not to be need for an increase in the present maximum and that to some extent there is a psychological advantage in leaving the penalties as they are?

I disagree and I regret that the Deputy should think I am on the defensive. However, I suppose I am defending attacks against the Bill so that by definition I must be on the defensive. I cannot avoid that. I can only repeat what I said to Deputy O'Kennedy—that the Government consider the seriousness of the offence we are talking about requires it to be marked by a high maximum penalty. These are not necessarily the penalties that will be imposed. They are the maxima and I should hope that there would not be such an incidence of convictions in relation to this offence as to bring to pass what is sought to be prevented by the section.

One extremely important point has been overlooked completely since we began debating this section. The section provides for increasing penalties in five separate instances. These relate to sections 6, 7, 15, 21 and 27 of the 1939 Act but to the best of my knowledge there has been no conviction in respect of three of those sections—sections 6, 7 and 15. I am open to correction on that but we have had no conviction under them since the present Minister for Justice assumed office.

There have been two convictions under section 7 and one under section 15.

Perhaps the Minister will be good enough to let us have details of those cases. Do they relate to the Herrema case?

The offences relating to section 7 were in respect of the Herrema case while the offence relating to section 15 was in respect of offences which occurred some time last year at Dundalk.

The Minister will appreciate that there were many charges in the Herrema case and that this section was not required on its own to nail down the accused.

The Deputy said there had been no convictions under these sections.

In my Second Reading speech on this Bill I said it was likely that there had been a conviction under this section but that this related to the Herrema case. I said, then, that I was open to correction on that. The point I am trying to make is that when this package of legislation was introduced we were told that certain powers were necessary to combat crime and the provisions of the section of the Bill before us were highlighted by the Minister and by other Government speakers at every opportunity. I have said that the main purpose of this section is nothing more than window dressing, that the fact that we are increasing the sentences applicable for offences under sections 6, 7 and 15 will not help the situation in any way. This is unfortunate.

The doubling or trebling of sentences in respect of offences in respect of non-operative or unused criminal law legislation is nothing more than an exercise in futility and is unlikely to contribute anything to the ending of the so-called emergency in which we are living. According to the Minister for Foreign Affairs, when he spoke yesterday at Killarney, the emergency is something of a technical nature. In other words, the purpose of this legislation is merely a technicality so that the Garda can be given power to detain people without charge for seven days. Are we to doubt the words of the Minister for Foreign Affairs or are we to believe him and, consequently, to see this legislation as a piece of window dressing? It is a measure which could have been introduced last June or left until the Dáil was due to resume in October.

I would go along with the provision to increase from two to seven years the penalty for membership of an unlawful organisation. I am glad, though, that the seven years' penalty is a maximum bearing in mind that there might be cases involving young or immature persons finding themselves involved in the IRA but being affected seriously by having to serve the full seven years' imprisonment. I said during the Second Reading that we are not opposing the section providing for increased penalties but we believe they are nothing but window dressing.

Can the Minister tell us if there have been many cases under section 15?

I have not got any statistics. Deputies will realise it is a difficult offence to detect because of its nature. It has to be found as it is being committed. There have been indications of the offence having been committed but the bird had, so to speak, flown when the Garda arrived. It is a serious offence and it is appropriate that the penalty be increased. We are particularly anxious to ensure that this might be a deterrent to young immature persons.

Would the Minister say how many prosecutions there have been?

I will have to get the figures for the Deputy.

We can give a very clear illustration of our attitude to this package of proposals by the Government. As my colleague, Deputy Collins, has indicated, we are not opposing section 2, but there are many aspects that cause us concern.

It is somewhat laughable in reference to section 6 of the Offences Against the State Act, 1939 that these increases in penalties are being proposed when there has never been a prosecution taken or convictions secured under the original Act. Somewhat the same situation applies in regard to sections 7 and 15. If some prosecutions have been taken under these sections as they originally stood, they were to a large extent marginal, so that my colleague, Deputy Collins, is correct when he says that to a great extent subsections (1), (2), (3), (4) and (5) of this section are window dressing.

The Minister has made no attempt to justify what he is proposing here and if we were simply to accept the debate as it has unrolled here we would not give the Government these additional powers because the Minister has not even bothered to argue the case. One suspects he is presuming on our goodwill in this respect. We have indicated to the Government that, whereas we do not think this section is something that anybody can stand over as it is being put before us, nevertheless we say to the Government that they have the responsibility and therefore if they say to us that they want these powers and we find that they are not particularly Draconian, then we will accept them. They are to a large extent simply increasing penalties for crimes and offences which are already on the Statute Book.

There is a difference with subsection (6). This is a proposal which we frankly find exceedingly distateful, particularly, as Deputy Collins has said, where young, immature persons are concerned. Everybody should be quite clear on exactly what we are doing here in subsection (6). We are now enabling a person to be sent to jail for seven years on no greater evidence than the word of a chief superintendent of the Garda Síochána that such a person is a member of an illegal organisation. Let us all recognise that this is a very serious and far-reaching measure which we are proposing here. Many people object in principle and in conscience to the idea that a chief superintendent could be enabled, in effect, to send the person to jail for two years simply by making a statement to a certain effect, but it is a much more serious matter when this very simple device of a superintendent giving evidence can send a person to jail for seven years. In the case of a young person, seven years in jail is a very long time and we should certainly like to see in this section some protection for the type of young, immature persons to whom Deputy Collins has referred.

Because of our history, it is not very difficult for a young person with a certain outlook very innocently to become involved in affairs of an illegal organisation or even to create the impression in the minds of the Garda Síochána that he is a member of an illegal organisation. Let us all recognise, in all seriousness, that it is a very severe penalty to commit that young person to jail for seven years on that basis.

Although we will not oppose this section, as Deputy Collins has out-lined, nevertheless we feel that it is our duty to point out to the House and to the public exactly what is involved. I do not know if the Minister has given this the serious consideration he has indicated that he gave to other parts of this proposal. I do not know if he is acting on the principle that if two years is a deterrent, then seven years is a much more serious deterrent. I would hope that he is not. I should like the Minister to say something about subsection (6). I know that the attitude he expressed here in the Dáil will not be taken cognisance of in a court of law, but it is important that the Minister should say something about this aspect.

I do not think any of us are particularly concerned about subsection (7), though again it has unfortunate implications. It affects the freedom of people to express their opinions, freedom to hold public meetings and so on, but we are applying our principle here and if the Government say that they want this power, we will not oppose it. We will not oppose any of the subsections, (1) to (7), but we have very serious doubts and reservations about them, particularly section (6). Even at this late stage the Minister should consider whether in the case of young persons some restriction should be placed on the maximum of seven years.

The Minister will, of course, point out to us that these are only maxima and that it will be left to the discretion of the court, but that is only half a defence from his point of view. Once the offence is spelt out in the statute and once the Oireachtas lays down the terms of imprisonment, they become associated and there becomes an onus, an implication, that that period of years is appropriate to that particular offence. I believe that there will be a great deal of public disquiet about subsection (6) when it is fully realised what is involved and I would hope the Minister would say something in the course of his reply to this debate to mitigate that public disquiet.

The fact that this offence can be confirmed in court simply on the statement of an officer of the Garda Síochána, to the effect that it is his opinion that such and such is the case, is a very serious aspect of the matter. To the greatest extent the rest of this section is simply window dressing, as has been suggested by Deputy Collins.

Deputy Haughey misunderstands or does not appreciate how heinous the offence of membership of the IRA is and misjudges public reaction to it. The public absolutely detest the IRA. In the public mind, membership of the IRA is a most serious crime and there is a general wish to see the IRA suppressed. It is important that everybody in this House would recognise that, and that everybody here in supporting this section would do so with that in mind. It should be self-evident that one of the factors in defeating terrorism must be the deterrent effect of the penalties available to those caught in acts of terrorism.

The first two acts—usurpation of Government and obstruction of Government are again self-evidently monstrous offences striking to the very root of our State. I do not know if there is a proper appreciation on all sides of this House of the absolute necessity at all times to be vigilant about our institutions and to ensure that the laws passed here take account of the need to be vigilant and take account of the continuing trust that is being placed in us to ensure their protection. The reasons for all this may be found in history. We of this generation may become blasé because our institutions appear to be solid, immovable and have a great permanency, about them. It is very important that we continue to ensure that they maintain this permanency. The offences I have mentioned—the usurpation or obstruction of Government—are so inherently dangerous and can carry such threats to the continuation of that permanency that it is only right that this Legislature should mark them as being most serious offences indeed.

Drilling and engaging in military manoeuvres is a most serious offence because, as I indicated to Deputy Brugha, very often engaging in drilling or military exercises is the way in which young people are corrupted into becoming involved with the IRA. It is very important that this should be presented to the public as a serious offence so that parents who might be careless or negligent in their duties, without being supporters of that organisation, will be extremely careful to make sure that the company their children keep does not lead them into any such activities.

It is very important that this Legislature should send out, from all sides of the House, a completely unequivocal message of determination to end terrorism, to down the terrorists. It grieves me that the acceptance in principle, which I welcomed, for this Bill is being so hedged with qualifications that it is becoming not as valuable as I hoped it would be. Membership of the IRA is a heinous offence because the IRA are a heinous organisation. Young comparatively innocent people may be recruited into it, but after they have gone through their apprenticeship a lot of the innocence will have rubbed off. It will be for the court in hearing the evidence and the defendant—if the defendant chooses to speak and recognise the court—to decide the appropriate penalty, having regard to the usefulness, age and experience of the defendant.

Notwithstanding the unusual way in which this offence can now be proved—a way to which I took objection four years ago and which, in principle, is still open to objection —and because of the seriousness of the situation we are in, I do not think now is the time to remove any of the weapons available in the armoury of the State. That weapon in the hands of the police force, subject to an unequivocal Executive is one thing, but an Executive seeking that power, when it was sought originally having regard to the history of those crimes, was a totally different context. It is important to have this point cleared up.

The essence of the matter is that membership of the IRA is a most serious offence and the public at large expect it to be so marked. I was taken aback at Deputy Haughey's protestations that the change in subsection (7)—this is the subsection which increases the penalties for taking part in a public meeting which has been banned—impedes the freedom of speech.

I am not making an issue of that.

As it is on the record, I think I should clear up this point. We must remember that this section is dealing with meetings that have been banned, not for the sake of banning free speech but because they are being held by or on behalf of, or in arrangement or in concept with an unlawful organisation and for the purpose of supporting, aiding and abetting. It is inconceivably careless that any Deputy should allege that a penalty for partaking in such a meeting could be held to be an impediment on the freedom of speech.

Let me clear up that point. We have had the experience of a Deputy being present at such a meeting. Let us be clear about that.

And wrongly so.

Let the Minister not accuse me of being careless in my interpretation. I was very specific in what I said and I stand over it. I said we are supporting this if the Government think it necessary.

We do absolutely.

Let us all recognise that it is a further diminution of our rights of free speech unfortunately.

It is not.

It can be, because the Minister knows full well that the original section leaves it to the discretion of an officer of the Garda Síochána to decide——

Subject to challenge in the court.

——that a meeting will be, in effect, subversive.

We will accept that but let everybody recognise that it is a further diminution of our democratic freedom of speech. Perhaps it is a necessary diminution, as the Minister says, and we accept that, but let him not be cavilling at my regret that we have to do these things.

It is not a diminution of free speech to stop the subversives holding public meetings.

If the Minister believes he should dismiss as hedging our criticisms of this section then he is very wrong. We told him this afternoon, and during the Second Reading, that we were supporting the measures in this section even though we had reservations. If we have criticism it is not right that he, even if he is unable to restrain himself from dismissing this criticism as hedging, should get away with it. Everybody on this side of the House wants and demands the suppression of the IRA and we have said that time and time again. The Minister inferred that this was not so and that it was not the unanimous wish of this House. That is very wrong as we have told him time and time again. I understand that the increases in penalties can be, and I hope will be, a deterrent to the perpetrators of crimes.

This section is increasing the penalties in three sections of the Offences Against the State Act, 1939, one of which was never used in 37 years, one of which was used only once in recent times, and I cannot tell the Minister how many times the other one was used but not terribly often. These three sections of the 1939 Act have not been relied on by this Government or their predecessors in dealing with subversives. That is why we have said the increases in the penalties in this section are window dressing, to our mind, to a very great degree, but we are going along with them.

With regard to the prohibition of membership of an unlawful organisation under section 21 of the 1939 Act, the point has been made that unfortunately and tragically many youngsters of 14 and 15 years of age are in the IRA. God knows the destruction and harm they can do with explosives and weapons. They can be of an unbelievably serious nature. Lives can be lost. People can be maimed. Recognising the evil and foul deeds which have been done by such young people who unfortunately are in the IRA, we are glad it is left to the discretion of the courts to decide the sentence which should be levied on them if they come before the courts.

The Minister put forward as one of his reasons for increasing the penalties that he wanted to remind parents they must be careful of the company their children keep. I think the Minister is on record in this House as saying the first knowledge a particular parent had, in a county not too far from the Border, of the involvement of a child of his in active membership of the IRA was when the remains of a suit of clothing of that child were brought to him for identification, the child having been blown up while placing bombs or doing something with explosives. We should all like to see all parents being not alone careful but extremely vigilant of the company their children keep.

Because of our strong belief in this regard we have put down an amendment to the next section to deal with, as strongly as we think they should be dealt with, those who are getting after people under the age of 18 years and inciting, inviting or recruiting them into the IRA. I want to let the Minister know again exactly where we stand. We stand firmly and strongly against the IRA and those who support them. We have the right to criticise the provisions of this section and to describe some of them as mere window dressing.

Can the Minister tell me why there has been no increase in the penalties under section 8 of the Offences Against the State Act dealing with obstruction of the President? Has that section been repealed totally?

No, it has not been repealed.

I did not think it had been. I want to have some consistency from the Minister on this. Since that section was brought into operation has any charge been brought in our courts of usurpation of the functions of the President? I do not think so. I think I am right about that. Will the Minister accept that there could be nothing more serious for us than that the President, the man who signs into law what we pass here, should be obstructed in the course of his functions? That being so, anyone who obstructs him or prevents him from doing what he is authorised to do under our Constitution, would be guilty of a very serious and heinous offence, to use the Minister's own words. Anyone who attempted to do so, or conspired to do so, would also be guilty of a very serious offence. I am testing the Minister's consistency. He has introduced a Bill with a penalty of two years' imprisonment for somebody who attempts to or who conspires to obstruct our President in the discharge of his functions, amongst other things in signing into law this Bill or any other Bill. The maximum penalty for that has been left at two years by the Minister.

Seven years.

No. Subsection (2) provides:

Every person who aids or abets or conspires with another person to do any thing the doing of which is a felony under the foregoing subsection of this section or advocates or encourages the doing of any such thing shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.

What kind of—I have to use this expression—confused if not twisted logic prompted the Minister and the Government to increase tenfold the penalty for an offence which has never been brought before the courts, that is, usurpation of the functions of the Government? The biggest increase in the Bill is for an attempt at or encouragement of that offence. Despite his protestations about the need to protect our institutions, the Minister blandly passed over section 8 of the Offences Against the State Act, 1939.

I am not saying the Minister should be increasing the penalties under that section. The fact that no charge has ever been brought and no conviction has ever been registered makes it clear to me that there is no such need and that our President is safe and secure from any such attack. If the Minister can justify an increase in the penalty from two years to 20 years in respect of a charge which has never been brought, namely, attempted usurpation or the encouragement of the usurpation of the power of the Government, he should be at least similarly sensitive with regard to the functions of the President. Reluctantly I must come to the same conclusion my colleagues reached that this is window dressing. To quote the Minister's own phrase, there is no internal relativity in these offences. If there were, the Minister might have considered something else. I could refer the Minister to other matters he overlooked but one is enough to make my case.

The clue lies elsewhere because there is a complete lack of logic and consistency in what the Minister is presenting to us. A few moments ago the Minister said rhetorically: "I do not know if there is a full appreciation outside this House of the need at all times to be vigilant". In other words, the Minister was questioning whether the public are sufficiently conscious of the need at all times to be vigilant. He said that in the context of the increased penalties he is introducing in this legislation. All of us will encourage vigilance at all times, but vigilance is not always related to fear of punishment. All of our institutions have our support but vigilance is not always achieved by increasing penalties. Sometimes that may have an opposite effect.

The Government may increase penalties as an indication of their determination but that may not be calculated to give rise to the vigilance about which we are all concerned. We have little or no right to criticise the public as being less than vigilant. They have been very vigilant, indeed, and we want them to be even more vigilant in supporting our security forces. The Minister should not imply that these increased penalties are somehow necessary because the public have been less than vigilant.

I should now like to refer to the Minister's interpretation of Deputy Haughey's question about the increase from two to seven years for membership. The Minister has acknowledged that he was the one who in this House very strongly resisted—that is something of an understatement—the introduction of the section and the penalty of two years which he is now increasing to seven. He resisted it to a point of great personal principle, even to the point of there being a very definite difference between himself and his leader at the time. We are expected to accept that resistance in principle from the Minister at this time but any question from this side of the House based on the same conviction, perhaps, the same doubt and the same reasoning which prompted him, plus the fact that we are now increasing from two to seven years the penalty contained in the section he opposed strongly gives rise to a response from him that we are less than wholehearted in our support for the provisions of this Bill generally, as we indicated on Second Stage, or less than wholehearted in our opposition to the IRA.

We indicated to the Minister that our opposition to all unlawful organisations is wholehearted. That is why we expressed our regret that the Minister could be seen to be somewhat ambiguous in standing over suppression orders in respect of one organisation when the others are to be immune from such orders. Let us not talk of consistency. Let us all try to achieve what we want but if we are talking about consistency how can the Minister not acknowledge that there is window dressing involved in some of the increases he is introducing in respect of penalties for offences that have not occurred when he has over-looked and by-passed possibly a more serious one, that which would be directed at one man alone, our President? To usurp the powers of Government could be a complex matter because there are a number of Government Ministers involved and one could not do this by getting at one man but one could obstruct our President because he is one man. He could be obstructed in the performance of his function but the Minister has chosen to overlook that. Does the Minister regard that as being a less than serious offence? Does he regard it as being so less serious than the others, obstruction of the functions of Government, that it would warrant only one-tenth of the sentence that the inchoate offences under the others would warrant, namely 20 years?

I have been listening to this part of the debate and I note the Minister's concern about law and order but concomitant with that I note his concern to deprecate this party. I resent that because we are not disorderly; we are not in fear of the law, we always upheld the law. I should like the Minister to dwell on that point. The Minister is a different man today from what he was three years ago when we were putting through the Forcible Entry Bill in this House. We are not indulging in the obstructive tactics which he indulged in on that occasion. It would be too bad if we did being a party who had the responsibility of maintaining law and order in this State for so long. That is why Members on this side resent the Minister's ambivalent remark.

We are all concerned that law and order should be enforced through the institutions of the State but I hope we are all equally concerned with the fact that law and order can be abused in any State. It is our duty to see to it that not merely are the functions of the institutions of State strengthened but that they are strengthened in such a way that the system does not defeat its own end by bringing the law into disrepute, as happened elsewhere. I should also like to think that we are catering for organisations other than the IRA and that we have the same detestation for other violent organisations in Ireland as we have for the violent tactics of the IRA. Let us not lose sight of the fact that whatever we may do to support the institutions of State law and order can be abused by the implementation of bad law, for example, law that cannot be enforced or law which can be enforced in an unfavourable and detestable way and which can lead to methods of interrogation which bring the State which implements that law into disrepute.

I ask the Minister and the Government to take note of those facts. The Minister told us that we should strive to gain the acceptance of the hearts and minds of the people through our democratic institutions. I hope we shall continue our efforts in that direction but I wonder if we have the total support of our people. The women of Belfast have taken to the streets and so also have women down here. They are supporting a cause which we believe to be a good one. We should be careful in Parliament not to leave it to the people outside to show a lead in gaining the hearts and the minds of the people. We should not lose sight of the fact that unless the law we implement is fair and just we could bring the law into disrepute.

Without calling a quorum, I should like to draw the attention of the House to the fact that it is extraordinary that there has not been one member of the Government parties sitting in with the Minister on this important debate for some considerable time. Is that a measure of the concern members of those parties have?

I should like to support what Deputies Gerry Collins and Carter said about this section. The Minister does himself and his cause no good by these intemperate outbursts, by the reaction he has to what I consider to be reasonable view points put forward by this side of the House. My collegues and I have sought in regard to section 2 to indicate that it is not a section that we have any great liking for; it is not a section about which we do not have reservations. We have considerable distaste for certain aspects of it but that is as far as we have gone. If we wanted to deride the section we could point out to the Minister that under his proposal if an ordinary member of the public interferes with a painter of the Office of Public Works while painting a public building he could get 20 years. We could have made that case if we wanted to be destructive about the section but we did not do so. The section is full of ludicrous, nonsense things of that nature. We have not made any great fuss about them because we have said that we are following our principle through consistently, that if the Government think they need these particular powers we are reluctantly prepared to support them, but I think our attitude in that regard, and our reservations in regard to this section should be respected by the Minister.

The 1939 Act and all that went with it has been criticised and regarded as oppressive and so forth, and its amendment in 1972 was criticised even more roundly, and indeed that attack was lead by the present Minister. I have a concept in relation to the laws we are discussing and nothing that has been said on either side of the House has disturbed my belief that there is much more law than we need. The fact that some of the penalties that it is proposed to adjust here have never been invoked in 37 years is clear evidence that instead of adding to these things we should be deleting them. As I said, I agree with the ten times multiplication tables being applied where money fines are concerned, as between now and 1939.

Over the years in this and every other democracy, and reflected in the Governments of those democracies, there has been a tendency to reduce terms of imprisonment, to make jails and such places of detention much more comfortable and to use the time of people that are incarcerated in those places as a time for mending and correcting their ways. That is my concept, and it is generally accepted. Yet here, against the background of 1972 when the present Minister did his nut because of the extension of laws in this direction, in the amendment of the 1939 Act, and despite the repeated criticisms that I have heard over the years about the terms of the 1939 Act, we have a situation today—deriving from a phoney declared national emergency that does not exist in so far as the terms of the Constitution are concerned—where all of us on both sides of the House are trying to see which of us can outdo the other to show what law abiding people we are and how concerned we are about law and order.

This is not a competition to see who can go the furthest. In the last hour or so we seem to have lost sight of what we are here for. Ten times a 50 pence fine as against 1939 makes sense unfortunately, because that is the way money values have gone. Ten times two years, as against 1939, and transposing ourselves into 1976 is out-landish, ludicrous and ridiculous, and can only bring the law and those who make it into contempt. We can only look at what the Minister has already said in a statement on an earlier Stage of this Bill referring to this section. He said that the Government are satisfied that the maximum penalties in the 1939 Act are totally inadequate in present circumstances. What does the Minister mean by "present circumstances"? What are the dire circumstances that we are in now over and above what we were in in 1939 and any time since? How does the Minister qualify this matter of present circumstances, bringing about a situation where the maximum penalties provided for in 1939 are now totally inadequate? Are we moving into an era where we believe that more and greater sentences should be added and that all the lark about prison reform, improving the lot of the prisoners, trying to send them out better than when they came in being the obligation of society to those who err, can only be regarded as a lark? Is the answer now to multiply sentences by ten?

In the first four subsections of section 2 each sentence is multiplied by ten. Over the years the penalty of life for murder has worked out at about an average of seven years. Who are we kidding, and why are we talking about multiplication by ten? Deputy Collins has already pointed out three instances, referred to in this subsection, of offences provided for in 1939 in respect of which no case was ever taken in 37 years, with a two-year penalty where the penalty is multiplied by ten now. The charge about window-dressing surely must be near the mark. In another case either Deputy Collins or another speaker from the Fianna Fáil benches mentioned an offence that was provided for with a two-year penalty, and the law was invoked only once, and that penalty is also multiplied by ten. This of course is in keeping with our improving and enlightening ways, our social conscience about society's care for those who are jailed, so that we may reform them rather than punish them. There are other penalties that have been used very seldom. The Minister in his Second Reading contribution in an attempt to justify that situation, in reference to the total inadequacy of the 1939 Act penalties as related to present circumstances, said:

This applies not only to offences that are the subject of frequent prosecutions such as membership of an unlawful organisation——

If you did not have that one you would have nothing at all——

but also to offences such as the obstruction by any form of intimidation of the carrying on of the government of the State which are contrary to section 7 of the 1939 Act but some of which appear to be difficult in practice to prove so that prosecutions for them are infrequent.

Is that the reason for the use of the multiplication table? If we cannot take them because of difficulty in proving them is that why we decide to use the multiplication table and say the penalty will be 20 years instead of two years? That is the Minister's answer to the non-taking of prosecutions under section 7. If in difficulty, multiply by ten. The Government must be up to their ears in difficulties of all sorts because not only do they multiply sentences by ten but they also multiply fines by ten. They are apparently in severe difficulty.

The Minister went on to say:

Infrequent though prosecutions for them may be, these are very serious offences and the maximum penalty for them should reflect that fact.

Are they more serious now than they were at any time in the last 37 years? How much more serious? Why are they more serious than they were in 1972, for instance, when the Minister was doing his nut in opposing the Offences Against the State Act then being promoted by the Fianna Fáil Government? Why are they more serious than they were in 1939 when we were facing into the unknown, facing a world conflict? Are they more serious because the Government have abused the privileges and procedures of the Oireachtas to declare a national emergency? Conceivably that is the only thing that can be used by the Minister and the Government to justify this statement that things are more serious now as compared with any other time.

The Minister then goes on to say that the penalty imposed should reflect the seriousness of such offences and, for the purposes of reflection, he multiplies the penalty by ten. He says:

In providing for this, it is also desirable, as a matter of principle, to retain an appropriate internal relationship between the various offences specified in the 1939 Act.

I love the Minister's sense of relativity. It is not sufficient to trump up the situation in an attempt to justify the multiplication by ten of sentences and fines but we must also have regard, as a matter of principle, to retaining an appropriate internal relationship between the various offences specified in the 1939 Act. A nice, symmetrical pattern, I presume, far back in the recesses of the Minister's mind. This nice "internal relationship" tickles me as I have no doubt it will tickle those who will get ten or 20 years instead of two months or two years for some offence or other.

The Minister continues:

...Accordingly, if a maximum penalty of 20 years is provided, as the Bill proposes, for an offence against section 7 of the 1939 Act— an offence referred to in the sidenote to the section as "obstruction of government"—it would be inappropriate to have a lower maximum penalty for an offence under section 6—an offence described in the sidenote as "usurpation of functions of Government", even though there have been few if any prosecutions for offences against section 6. It would be inappropriate because an offence under section 6 could not in principle be regarded as of a lesser order of importance than an offence under section 7.

We are in this strange wonderland of this creation by the Minister of an internal relationship and a new principle to justify not having a lesser penalty applying to offences under section 7 as against those committed under section 6. We can expect, I suppose, as we move through the sections to find a further progression in regard to this internal relationship and this new principle, merely for the purpose presumably of keeping things tidy. The Minister comes in here with this kind of gobbledegook to justify what he is doing on the basis of present circumstances, circumstances which seem to be ten times worse than they were in 1939, and everything is multiplied by ten to convince us apparently that we are being cared for and looked after and that there is no danger to us and, if there should be danger, the Government will ensure by their multiplication tables and the symmetrical relativities that we will be safe.

The Minister goes on:

I have mentioned the offence of membership of an unlawful organisation,

I like the use of the singular noun there. That is highlighted by the clearly evident obsession not merely of the Minister but of the entire Government induced by their own propaganda or, perhaps, listening to their friends' propaganda from across the Border and the channel. I shall repeat that quotation:

I have mentioned the offence of membership of an unlawful organisation, the maximum penalty for which is two years, a maximum which the Bill proposes to raise to seven years...

It hurts me when I see two being raised only to seven in this case. I had been built up by the Minister for this as he called it "appropriate internal relationship". He has now departed from the ten times table and moved only from two to seven. Having expected the continuation of this new-found principle of the Minister, the two to seven strikes a jarring note. But then I find this is moving back a little towards sanity, even though it is draft to be talking about seven years as against two. If it was too good and more than enough in 1972 according to the then Deputy Cooney, now Minister for Justice, surely to God it is good enough today? If it was sufficient in 1939, why is it not sufficient now? Not an iota has the Minister produced to indicate why what was sufficient in 1939, again in 1972, and since then, is insufficient now to the point that two years must become seven.

The Minister continued:

I am aware that the point has been made more than once in recent times that such a proposal is irrelevant in view of the fact that the courts seldom if ever impose the present maximum.

Take good note of what follows, the most disturbing part of the whole operation of the Minister for Justice. It would indicate on the part of the Minister a state of mind very questionable as to its stability. I continue to quote him: "I mention this point because it is one that calls for an answer." One would be entitled to ask what calls for what answer. Why is the answer needed or who asked the question in the first place? The Minister continues:

I am satisfied that there is an answer and a good one and it is this...

Who asked the question? Who is concerned about the answer? At any rate, the Minister has a good one and he is going to let us have it.

The courts, when deciding on a penalty, have to take account of the fact that a particular maximum is prescribed by law and it is a fair assumption...

The first is a fact and the next an assumption, fair in the Minister's estimation and I continue to quote:

that they look on that maximum as something that ought to be reserved for the exceptional circumstances—what one might describe as the worst cases as shown by the evidence before them.

Is the Minister telling us, contrary to what I had always understood, that when we set down penalties on the Statute Book thereafter it is entirely a matter for the Judiciary at whatever level to make their own determination, not to be led in any way by the nose in so far as any asides that we, as Ministers or Members of this House, care to subscribe to the Bill or any qualification or condition they do not arise? That is what I believe to be the case.

I am not finished with this extraordinary performance of the Minister in that I wish to continue this quotation:

If, however, the Oireachtas decides to increase that maximum substantially, the courts are then discharging their functions in a new framework and they can, and I have no doubt will, take account not only of the wider discretion allowed by the new law but also of the clear intentions of the Oireachtas as to the inherent seriousness of the crime.

Here we come to the real nub. The Minister sets up the question. He proposes to answer it and goes on to answer it. All of this is preparatory to telling the Judiciary what they are to do, how they are to do it. And the reason they are to do it not because of their judgment, as judges, sitting in their judicial capacity but because of the clear intentions of the Oireachtas, by using the ten times multiplication table, increasing the sentences to be served from two years to 20, as provided for in the 1939 Act and continued in some parts of the 1972 Act.

The Minister and the Government must be near bereft of their senses. They must be very short of anything useful they could be doing about the job they properly have to do, which is to run the country other than into the ground, which they are successfully doing—if that can be called success—at a rate never before achieved even by their two previous Coalition efforts of 1954 and 1948.

I would commend that speech of the Minister as reading that should not be neglected by any Member of this House, any public person, organisation or body. Indeed, it should be made compulsory reading for the general public and would be better prescribed as reading for some of our school classes than some of the history books more recently prescribed by the Minister for Education who wants to get the Fine Gael version of our recent history through our schools by saying: "You must buy a new book this year". Anyhow that is the best piece of reading in the shortest possible space of time anybody could come across, being part of the Minister's introductory speech on Second Stage. Nothing I could say now or later could so condemn the whole proposal in section 2 or the idea behind the Bill. It is all exposed there. It is a mere lark on the part of the Government to divert attention from their inadequacies in other directions, giving a certain impression to the outside world—and their world ends at Westminster although they do travel much further on occasions—their real world, probably enviously looking at part of that crumbling empire that once was very great and of which we are no longer part. Here we have the effort of the Government, put down in three-staged movements—our declaration of emergency, our Emergency Powers Bill, followed by this gem before us. The secondary, if not the primary reason for this is to give our assurance to those who were once our masters and our occupiers that we are still their subjects and their servants, to give our assurance that we will do things that they are not doing themselves, and do them to our own people.

This is the sort of operation that this legislation will carry out. Not-withstanding anything that has been said, I am left with the ever-increasing conviction that we are trying to create something that does not exist, namely, a national emergency on the security front.

During the small hours of this morning I came through the Six Counties, into Monaghan and down to Dublin. I remember saying last week when I travelled the same way that I did not see a uniform once I left the British Army until I got to Dublin. This time I can say that I saw one garda in uniform from the time I left the British Army at Auchnacloy at 3 a.m. this morning until I came to Dublin and yet a state of national emergency has been declared.

All this gobbledegook hinges on the national emergency declared by both Houses of the Oireachtas to abuse the Article of the Constitution that has been invoked. The Government should do all they can to get our people to work themselves out of the economic dilemma we are in; they should stop trying to pull the wool over our eyes by this kind of diversionary tactic.

I have only a few brief remarks to make about this section because I regard it as an unimportant section and one that will have little effect. I am not opposed in principle to what is in the section. The reason I say it is unimportant and will have little effect is that the most significant increase in penalty is in the increase in the penalty for an offence under section 21 of the 1939 Act. That is in respect of membership of an illegal organisation and the penalty has been increased from two years to seven years.

I cannot quote exact figures—no doubt the Minister has them—but since early 1972 there have been about 500 convictions in our courts, nearly all if not all in the Special Criminal Court, for membership of illegal organisations. As far as I know they were all for membership of the same illegal organisation. From inquiries that I made I understand that, with one exception, nobody was sentenced to imprisonment for longer than 12 months. The one sentence that was longer was for 15 months and I understand it was the second conviction for the same offence. A great many of the large number convicted in that period were sentenced to periods of imprisonment less than 12 months. In the first two years up to early 1974, the usual term was six months.

Is that for membership or generally?

For membership.

The information I have is that the pattern of sentences range from three months to two years. This is from the beginning of the court——

From 1972 onwards?

I am interested to hear that anybody got two years. I cannot recall it. The more infamous—if I might put it that way—of some of those convicted, and who might on the face of it be entitled to the maximum sentence, to my certain knowledge did not get two years. I remember one gentleman who richly deserved two years, and a lot more than that, who was convicted in November, 1972, and he got six months.

At that time the pattern tended to be for lower sentences.

Before and since then persons who appeared to be prominently identified with an illegal organisation did not get two years. If, as the Minister has said, somebody got two years probably it was on his second or third conviction for the same offence. The average sentence would not exceed 12 months, possibly less. It seems a little unreal when the courts have not been willing, even though they would appear to have had justification in some cases, to impose the maximum sentence of two years to expect that they will impose a sentence that is three-and-a-half times longer. In saying this I do not want to be taken as saying that a maximum sentence of seven years for this offence is too much. I do not think so in relation to certain people. There are certain leaders of illegal organisations who richly deserve seven years and, perhaps, even more. Of course, it would be a very severe sentence for a young man who had been intimidated into joining an organisation, perhaps partly against his will, who had not been there very long and who did not play a prominent part, but the courts will have discretion in the matter and will be able to take such factors into account. When we are thinking of seven years we would be as well to think of it in terms of those who have played a prominent part in the organisations and who have recruited others to join them. Nevertheless, it is only right to point out that with very few exceptions no person has been sentenced to more than 12 months.

With regard to the other offences in respect of which the penalties have been increased radically—some of them by as much as tenfold—some are quite unimportant and rather obscure. They are unimportant in the sense that in one case nobody has ever been charged with the offence and in another case there has only been one charge and that was one of a host of charges. I do not know if the man was convicted; I rather think he was not——

He must have been.

He was convicted of so many other offences that it did not really matter. The section is open to the accusation or insinuation of window dressing, perhaps, more than other sections. While it may impress people to see these very severe sentences and huge increases in penalty being written into the legislation, in practice it may not mean a great deal. Although I have this limited reservation that it is not likely to be of much value from the point of view of the term of imprisonment suffered by the ordinary prisoner, it may have some value in that some of the more prominent people identified with illegal organisations will now be liable to the kind of sentences that I, for one, think they should get. I have no objection to the section but merely wish to say in conclusion that there is an element of window dressing here which could mislead the public and perhaps mislead people abroad into thinking that these kinds of penalties are likely to be common or unusual for these offences. Obviously the sentencing policy of our courts is such that the maximum penalties being talked of will rarely if ever be imposed.

Question put and agreed to.

I am dissenting.


As amendments a1 and Nos. 1 and 2 are related the three may be debated together but with separate decisions as required.

I move amendment No. a1:

In page 3, line 11, to delete "expressly or by implication.".

In discussing this amendment and Deputy Collins's amendments I shall have to refer to the section because, as the House is aware, it is a section which has evoked much comment. To some extent it will be necessary for me to analyse the section. I take it that the people opposite will agree to that.

There has been much misunderstanding about what this section says and, more particularly, what it means. One of the arguments has been that the wording is ambiguous and uncertain and therefore dangerous. It is argued that somehow it poses a particular threat to newspapers. I hope to show that these arguments have no validity and that they are mistaken. I am not attacking the good faith of those who put forward the arguments but they have been put forward mistakingly.

Sometimes a word or a phrase in a Bill can be presented as being ambiguous. Perhaps somebody reading it might think it ambiguous if he was not familiar with the rules of construction. Language is necessarily an imprecise instrument. There have been many instances in which both the Opposition and I, for instance, thought we were saying the same thing only to find that we ended up in disagreement as to meaning. It is important to recall a principle of construction that I mentioned to Deputy O'Kennedy, that is, that if a word is ambiguous in criminal statute it is construed always against the prosecution and in favour of the defendant.

A second general point I wish to make in regard to this particular offence is that, in common with the vast majority of criminal offences, there is a requirement of mens rea or guilty intent before the offence is committed. This is something which must be proved by the prosecution. The exceptions relate to certain statutory or regulatory type of offences in which the law does not regard it necessary to prove mens rea that the nature of the abuse sought to be covered by that act is such that mens rea is unnecessary.

When opening the debate the debate on Second Stage I referred to section 3. If Deputies refer to that speech they will find that I was defending section 3 against the charge, not that it went too far, but that it could be argued to be unnecessary because incitement is already a criminal offence. In view of what has been said already about the section it is important that I would repeat and emphasise very strongly that incitement is a serious criminal offence. There is some doubt as to whether incitement to commit sundry offences is itself an offence, but there is no doubt in that regard in relation to the incitement relating to indictable offences. Therefore, people who are saying that this section is putting people in fear of the law or is putting them in jeopardy are not taking into account that incitement is already a criminal offence. With one possible exception, which I will deal with later, we are not in effect in this section extending legally the offence of incitement. There have been references to what has been called the vagueness of the definition of incitement in the Bill. The Bill does not purport to define incitement. There is no need for it to define incitement because that offence is already well known within criminal law.

The word "incite" is to be interpreted in its ordinary dictionary usage, that is, to urge or to stir up. People ask whether a certain statement could be construed as incitement to join the IRA. My first answer is a circular answer: if it is incitement within section 3 it already constitutes incitement under the law as it stands and is a criminal offence for prosecution. It is punishable not for ten years as provided in the section but with imprisonment for life because it is one of these common law offences in respect of which there is no upper limit laid down.

The second point in regard to section 3 is that mens rea has to be present in relation to this section, as it must be present in the ordinary common law offence of incitement. It is something that would have to be proved by the prosecution, though I should point out that mens rea can be proved sometimes by showing not just a positive intent but a certain degree of recklessness. It is not an absolute offence in common law and this situation is not being changed in the statutory wording adopted here.

It follows that a prosecution would have to prove that what was said or written was incitement in the objective sense and, in addition, that the defendant intended to incite or, at least, that he was reckless as to whether he was inciting. Consequently, there can be no question of an innocent person being caught.

In my opening speech I quoted what Professor Glanville Williams had to say about incitement. I now give a further quotation. It is from page 612 of his book Criminal Law: The General Part.

One may incite persons generally, as in a newspaper article; and the person incited need not be known. Since incitement relates to incompleted criminal conduct, it is immaterial that the words have no effect on the person solicited; but they must have reached his mind. If they do not, there may be a conviction for attempt to incite.

It is clear that a person may be incited to crime by various means. He may be incited by the spoken word or by the written word. He may be incited directly or through an agency or other persons. If an intermediary is used he could also be guilty of incitement unless he was unaware of the significance of what he was doing in which case there would be no mens rea. The words in the section which set out the various ways by which a person may incite another to join an unlawful organisation are merely explanatory and add nothing to the legal meaning of the word “incitement.”

I am referring primarily to the words which are the subject matter of the Opposition amendment and some of which form part of my amendment. Primarily I am referring to the words "directly or through another person or persons or by advertisement, propaganda or any other means." The fact that these words merely specify various means by which incitement can be carried out, and do not in any way expand on the basic meaning of "incite," does not mean that the words are pointless or unnecessary. They do not add or take from the existing legal meaning or nature of the offence of incitement, but what I submit to the House is that although they do not add to the law or essentially change the legal position, they are not unnecessary words.

I put it to the Opposition for their consideration that, therefore, the specific purpose, and I think a good purpose, is to ensure that something as important as this, that people who engage in what is popularly called recruiting, whether by word of mouth, by handbills or by any other means, would clearly be put on notice that they are committing a serious offence; and these words in the section as drafted put them on notice, whereas the use of the bald word "incite" might not contain the same message in such a highly pointed way.

What, in effect, we are doing in this section is spelling out in a clearer and more pointed way what is already an offence. Therefore, the deletion of the words which the Opposition seek to delete—I want to emphasise this strongly—would not take from the essential nature of the offence of inciting. I suggest to the Opposition that the words should be left in for the reasons I have given. I submit that the section, if they were removed, would lose the advantage of showing on its face that these kinds of activities, where they constitute incitement, are serious offences. The section does not make these things offences. It is only where people are inciting and can be proved to be inciting that the section applies. There is no basis for suggesting that the Bill is widening the law to an indeterminate extent. Incitement by any means whatsoever is already an offence.

My amendment seeks to remove the words "expressly or by implication". I think those words had given rise to most of the concern which has been expressed about this section, though as I have indicated this section does no more than restate in statutory form what has been the law for many years, that is, that it is an offence to incite somebody to commit a crime. I have moved this amendment because I accepted there was genuine concern about these words and because, as I have already indicated the words, like the other words which the Opposition seek to remove, are of very little if any significance.

I should like to explain that a little further. The reason why as a matter of law the words "by implication" add very little if anything to what the section would mean if it referred only to "incitement", and that these words were omitted, is that whether the words "by implication" are present or not, the prosecution would still have to prove that the words said or written were incitement and that the person responsible for saying them, writing them or publishing them intended them to be incitement or was reckless as to whether they were incitement.

This raises the question as to why the words were put in in the first instance, and I have answered that frankly. It is common for certain people to make certain types of speeches which the listeners or the readers of the speeches published know full well are taken to encourage people to go into the IRA. I am sure many of us have had experience of outraged citizens complaining about a particular speech and its tone. Most of these speeches are confined to language which is capable of an innocent construction—they are clever speeches in that regard—and to prove that what was said constituted an incitement and was meant as incitement may be so difficult as to be impossible because one must bear in mind that what is published must be published with the intention of incitement, not just that it was published simpliciter. There must be the intention, the mens rea, there must be the positive guilty mind or such a degree of recklessness as to constitute the same thing.

The ordinary listener may be in no doubt about the meaning of what he hears but proof of a charge beyond reasonable doubt in a court of law is a difficult and different matter. When the section was under consideration and being drafted it was intended primarily to ensure that there would be a specific statutory provision dealing with those who distributed recruiting posters and the like and those who personally sought recruits for the IRA. I am sure Deputies opposite have had the experience I have had of complaints from members of the public about posters on telegraph poles and elsewhere advocating support for the IRA, and the law has been in some difficulty about dealing with them.

With regard to recruitment, of course the main difficulty always will be to get evidence. The section may not have any value in that. It is a matter of getting definite evidence. However, the section will clear up the legal position. In reply to another Opposition amendment, I might say that the word "recruiting" deliberately was not used in the section because I was of opinion that it is or might not be wide enough to cover the people I have mentioned. I have no doubt Deputy Collins will argue that it should be there, on the ground that it is a word without a wide meaning. By reason of the strictness with which words in statutes are construed, the word "recruiting" could be interpreted as referring not to the person going abroad and holding up the attractions of being a member of the IRA but the person who does the actual signing on, and that would narrow it to a specific person.

In addition to dealing with bill-posters and such things, it was thought that the section, if it included the words "by implication", might be of some assistance to the prosecution in persuading the court to accept the kind of language to which I have referred, used in circumstances where everybody knew what was meant, and that it might enable the court to be persuaded that it, indeed, means precisely that. As I have said, it was thought the words might be of some help in this context. It was hoped they would be, but it was recognised that the effect could be quite small. Having regard to the concern these words have caused for many people—wrongly, I submit—one has to weigh that concern against the possible benefit to the prosecution. I weighed the two things and decided that my amendment was justified.

When one thinks about people who harangue crowds and make inflamatory speeches to join the IRA, it is also clear that we can consider the written word. As I have mentioned, the distribution of recruitment posters and handbills was in my mind as the principal target to be got at by the section. This, of course, raises the possible effects on newspapers. This is a matter which has been the subject of a great deal of comment and some of it has been extravagant, to put it mildly, and has overlooked the fact that incitement has to be proved and, in addition, there must be mens rea, that an innocent statement is not an offence unless it is accompanied by the guilty mind. That has been the position up to now by virtue of common law.

The law of the land already makes it an offence to do these things by the written word. Newspapers discharging their functions in the ordinary way would not be committing an offence in the absence of mens rea and no respectable and responsible newspaper would have the mens rea to commit an offence of inciting support for membership of the IRA. Newspapers discharging their ordinary functions up to now would be in no danger of being prosecuted, let alone convicted.

If this Bill were to be passed the position would still be the same. A newspaper would not be free to publish anything they like any more than at present. The Constitution which provides the freedom of the Press makes it a criminal matter to publish sedition. All section 3 does in the context of the Press is to draw attention to the fact that everybody, every citizen, no matter what his calling in life, is forbidden to incite others to crime. As I said, this is not new law; that restriction already exists. A newspaper which publishes incitement and does it with the necessary element of mens rea is committing an offence under the law as it stands. The same ingredient of mens rea would have to be proved if the prosecution should be taken under section 3 when enacted.

I mentioned that the section, with one small exception, is in effect reenacting the existing law of incitement, and the exception is to deal with this sort of situation. This is a common situation which gives rise to a fair amount of public scandal and I have no doubt it is a situation about which Deputies have received complaints. A person with a collection box is more likely to go into a pub than to stand on a street corner because it is a public offence to stand on a street corner with a collection box without a permit. If somebody comes into a private place with a collection box and calls out: "Support the IRA", it might be difficult to mount a prosecution against him. If a garda came on the scene and caught him in the act, an offence could be mounted against him. It may not be certain that he would be held under the existing law of committing the offence of incitement, that is, to be inciting people to commit a criminal offence. Section 3 would, and is, intended to make that conduct a statutory offence. It is with that admittedly marginal type situation, but nevertheless common and scandalous situation, that the section is designed to deal and I hope would deal.

On a point of clarification: is the Minister distinguishing between a private and public place in making that——

I am distinguishing it in this regard. In a public place there will be a prosecution. It could be a prosecution for making a collection without a permit, but the location of the call in the context of the terms of inciting would make no difference. Does that answer the Deputy's question? If the offence of inciting were being committed, it would be committed in a public or private place. It would not matter where it was committed. I am making that point in case somebody could say: "Could you not get him under the Street Collection Act?

I thought the Minister was saying that this Bill would have a relevancy——

I may have unnecessarily confused the point. If a person stands at a street corner with a collection box and calls out: "Support the IRA" and is soliciting money, on the law as it presently stands, it is doubtful if he could be prosecuted for incitement. On the law as it would stand hopefully when the Bill is passed the section as drafted would cover him as being a person supporting or assisting the activities of the IRA. The point I wanted to make was that if that person came into a public place with his collection box, the law, even at present, is not totally powerless, but only as regards the summary offence of making a collection. In that regard the section widens the existing law.

If I might recap to emphasise: the law of incitement has been with us and this section does not propose to expand it, restrict it, make it more vague, more general or alter it in any way. The words which I have moved to delete, "expressly or by implication", and the words sought to be deleted by the Opposition, "expressly or by implication, directly or through another person or persons, or by advertisement, propaganda or any other means," do not alter the legal effect of the section because, in some fashion, they have to be proved to get a conviction under the existing law. Therefore, there is no change in the law. The reason those words were inserted was to highlight to members of the public the dangers of becoming involved in committing the offence of incitement and indicating how it might be committed. If these words are removed, it would still be an offence "by advertisement" to incite. If these words are removed it will still be an offence "expressly" to incite. If these words are removed it will still be an offence "directly" to incite. If these words are removed it will still be an offence "or through any other person or persons" to incite.

I want the Opposition to consider the legal effect of these words because, as I explained, they do not add or take from the offence of incitement which is now being expressed in statutory form. What they do is give a message to the general public of what incitement can consist. As I said, the words do not add or take from the strength of the section as drafted. If the Opposition having heard what I had to say, still feel they would like those words removed, they do not take from the principle of the statute. I do not think there would be anything between us. Before they insist on seeking their removal, I would ask them to consider very carefully what I have said about them.

I must confess to having grave doubts in connection with the Minister's amendment. I do not consider it a genuine or concerned attempt to meet our objections or to meet the very real concern of many people outside this House about the implications of section 3. The Minister for Defence might well have been aware of this proposed amendment when he so bellicosely declared some days ago that not one iota of this Bill would be changed. In one sense, I do not think the Minister's proposed amendment materially changes the section.

Let me also say this, that the same could be said about the Deputy's amendment, but if he wants to insist on his amendment I will be prepared to accept it.

I accept that and thank the Minister but——

I asked the Deputy to comment on the reasons why I think he must not insist on it, because it neither adds to nor takes from the law.

I will give the reasons why I think our amendment is better than the Minister's and does a far better job. The word "directly" and the words following that word in the first line of the section relate to the person charged. The words "expressly or by implication" and the words following that phrase relate to the manner in which it is alleged the accused incited or invited the crime complained of.

Our prime concern in this section has been with the suggestion that a criminal offence can be committed by implication directly or through another person or persons, or by advertisement, propaganda or any other means. I do not believe the proposed deletion of the words "expressly or by implication" is enough to safeguard innocent persons. If the Minister proposed the deletion of the words "or by implication" alone and left the section reading that any person who expressly did something would be guilty of an offence, even in the extremely wide context of the remaining words in the section, this would go some way, even though a limited way, towards meeting our objections. If the whole phrase "expressly or by implication" is deleted, it is still open to a court dealing with a person charged under the section to reach a decision to convict that person by saying the implication of what he was alleged to have done was to incite or invite somebody to join an unlawful organisation.

It seems to me the reality is that the offensiveness of line 1 of the section would be diluted to some extent if the Minister confined the actions of the person charged to something he had allegedly expressly done. By deleting the words "expressly or by implication" the view is held that the Minister is leaving it open to the court to convict either way.

An offence has to be committed expressly. If it is not committed expressly it can only be by implication.

Section 21 of the Offences Against the State Act makes it an offence to be a member of an unlawful organisation, and the suppression order makes the IRA an unlawful organisation. Section 21 of the same Act also makes the offence of being a member of an unlawful organisation an indictable offence. Apart from section 3 of this Bill, the common law provision still remains that it is an indictable misdemeanour to incite someone else to commit an indictable offence whether or not the incitement is successful in persuading the other person to commit or even to attempt to commit the offence. The penalty for any common law misdemeanour is any term of imprisonment no matter how long, or any fine no matter how much, provided neither is excessive, and it is the court who decides what might be considered excessive.

The Taoiseach and the Minister for Justice said last week that this section is primarily aimed at those who recruit for the IRA. I have already commented on the fact—I accept the Minister's reason for this but I want to query it—that the word "recruiting" is not in the section and it does not appear to make recruiting an offence. One could visualise a situation where a person incited another person to become a member of the IRA but it would not amount to his recruiting him for the IRA.

It may shorten the debate if I say I cannot conceive of such a situation but, if the Deputy has that worry, I will accept the word "recruits".

I want guidance on this because I should not like to misquote the Minister, and I mean that quite sincerely. The Minister said the newspapers can carry on as they are at present. I think that is the phrase he used. If I am wrong I want to be corrected. Why then is it necessary for his colleague, the Minister for Posts and Telegraphs, to keep a file of letters to a particular newspaper and to use that file of letters in the way he did in his recent interview with The Washington Post? I could quote from the Official Report of 7th September the watered down version the Minister gave the House. If there was confusion, if the section was misinterpreted, the full blame must lie with the Minister for Posts and Telegraphs. I thank the Minister for accepting our two amendments.

As one who has been concerned with the many interpretations put on section 3, I feel the House has shown commendable commonsense in amending it. When I first became a Member of this House I was often in awe of parliamentary draftsmanship and, assuming the Cabinet debated sections of Bills at length and got the advice of the parliamentary draftsman and of the Attorney General on sections of this kind, I was very loathe to question sections. The longer I am in Dáil Éireann the more I am inclined to question Bills line by line. The questioning which has gone on in public in relation to section 3 has been invaluable. The section will now read: "Any person who... incites or invites or recruits another person (or other persons generally) to join an unlawful organisation..." If that, in effect, is to be the meaning of the section it most certainly will have my support. I commend the Minister on showing a flexibility of approach in amending the section.

I recall with some surprise what the Minister for Foreign Affairs said in his contribution. He said:

In relation to this section the question of the Press never arose in its preparation, drafting or discussion.

He went on to say:

The question of the Press did not arise in connection with it at all when it was being drafted, prepared and decided. It is important that that should be said and I can assert that firmly and decisively.

I quote from columns 641 and 642 of the Official Report. It is now clear that the real intention of the Government is to ensure that any individual who incites, invites or recruits commits an offence. The Opposition's amendment is sensible enough in that regard. A person can be recruited into a movement and discover when he tries to get out that there is a gun in his back. Unfortunate people get in and have to stay in, because they cannot get out or they will be shot. The definition of recruitment in that regard would be rather interesting.

The section as amended is essential and it supplements the existing body of law. It spells out clearly to some of the extreme rhetorical godfathers of the illegal organisations that they cannot with impunity stand up in public and publicly incite in the manner many of them have been doing and then hope with the aid of clever lawyers or barristers to escape the prosecutions of the Director of Public Prosecutions. The section has been much improved. I am sure one editor of a national newspaper will sleep quietly this evening because in relation to some of the intentions of different Government Ministers I got the impression that there was almost a note of hysteria beginning to build in.

The Deputy attacked a person here who could be identified, contrary to the usual custom of this House last week and he was not called to order.

I am drawing the attention of the House to the fact that there has been a certain amount of what one would call self-incitement in relation to this section.

The Deputy specifically mentioned a person in the House last week.

Self-incitement is something that——

Could the Deputy be taken up for that under this Bill?

It is not yet a punishable offence.

The Deputy specifically named a person in the House last week and he should have been castigated for it.

One journalist has been indulging in an inordinate amount of self-incitement in relation to this section and I am sure he will now have no difficulty in sleeping.

I should like to call the attention of the Chair to the fact that Deputy Desmond is making a meal of this. He did so last week and is doing so again this week. It is unwarranted.

Deputy Wilson will have his opportunity.

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

In welcoming the amendments which the Minister is now prepared to accept I was casting a cold eye on some of the more blatant emotionalism, one might say hysteria, which, in fairness, in no way characterised the reaction of newspapers or journalists generally.

That is the two-way bet again.

Every one of them commented on it, including the provincial newspapers.

Deputy Haughey, I have never had to go through the anguish of my conscience in a dock; Dáil Éireann is where I go through my anguish. Let us not start that kind of caper.

Every newspaper commented on it, including the Anglo Celt.

They did, and correctly so. The newspapers were genuinely concerned about it but in the case of one newspaper there was an inordinate amount of special pleading. It almost amounted to a charge of self-incitement, if such a charge could be levelled against any individual. The Minister, in accepting the amendments, has deleted the context of advertisement in the draft and taken out the words "propaganda and any other means" but he has clearly spelt out——

We have, in our amendment.


The Deputy knows more about the Provo IRA than we do.

We are taking the greatest exception to a remark that has just been made by Deputy Halligan. I ask the Chair to see to it that it is withdrawn at once.

The Chair did not hear it.

We are further away from the Deputy than the Chair and we heard it. I can assure the Chair that a very objectionable remark was made and all of us on this side of the House would wish to have it withdrawn. Had the Chair heard the remark, I have no doubt whatever that the Chair would similarly wish to have such an objectionable remark withdrawn.

The Chair certainly deprecates any objectionable remarks made from any side of the House and would always invite Deputies to withdraw same if the Chair heard such objectionable remarks.

Would the Chair be good enough to invite Deputy Halligan to withdraw the remark?

I am standing beside the Deputy and I did not hear any remark.

The Deputy only listens to himself.

If I have offended Deputy Haughey, I withdraw the remark.

It has been suggested by one newspaper that this section was a major underground effort within the Cabinet and at national level in Parliament to institute a total blanket censorship in relation to the activities of illegal organisations. Great hay was made of that. The Government have clearly let it be known that those who incite or invite individuals to join unlawful organisations have no longer any form of immunity under the law and I welcome that. If the Opposition have contributed to the clearing up of that in the appropriate amendments they have my thanks and the general commendation of the House goes to them. Without the House proceeding to make a meal of this, I should like to state that the section now is effective. It is designed to ensure that those individuals who can be clearly seen under the law to be included under this section will get their just reward of a charge being brought against them. The penalty in relation to section 10 is certainly very substantial.

The Deputy is speaking on the section and not on the amendment.

I have no doubt that those who issue letters of invitation to individuals, or who hold meetings during the course of which they specifically invite people to join an illegal organisation, will certainly not have the legal side-stepping opportunities which were open to them under existing legislation. I am grateful to the Minister for accepting a viewpoint which was expressed not merely by the Opposition but by Members on both sides of the House and from people outside. I am grateful to the Minister for having tidied up the section and I have no doubt that in the continuing debate on section 3 we will be able to tease out further any of the other implications.

Speak on the amendment, Deputy.

It would be less than gracious of us on this side of the House if we did not sincerely express our appreciation of the fact that the Minister has accepted both our amendments in regard to the recasting of this section. There will be a great amount of relief throughout the country that the Minister has done so. There is no doubt that the more one looks at the section as it was originally put before the House it was objectionable and dangerous. At first sight we had a very strong objection to the section as it was worded. We felt that the use of the words "expressly or by implication, directly or through another person or persons, or by advertisement, propaganda or any other means", made the section far too wide altogether.

Those words still apply as part of the general law.

That is the Minister's contention but I do not think we need really worry about it at this stage. I did not accept the Minister's explanation of why those words had been put in in the first instance. The Minister seemed to be on very weak ground when he said "we put them in for this reason, but on the other hand they are not really necessary". We need not concern ourselves unduly with that at the moment. We objected to the section as it was worded originally because it seemed to be cast in these very wide-sweeping terms. It seemed that people who were innocent of any subversive intent could be prosecuted and imprisoned under the section. Some time after the Bill was published our fears in this regard were exaggerated by what the Minister for Posts and Telegraphs said. To our original fears was added this extra fear that the section would be used simply to impose censorship on the media. Reading the section carefully one has to admit that it is open to that interpretation, that if any unscrupulous Director of Public Prosecutions or Attorney General wished to do so he could consistently prosecute newspapers for the most innocent of contents under that section.

He could not, because mens rea is necessary, as I have said.

Well, I must confess that even though I qualified as a barrister I never really understood what mens rea was.

It is an essential ingredient in a criminal offence.

I know it is an essential ingredient in a criminal offence and you must somehow or other be a criminal in your own mind before the judge can convict you. I never yet saw anybody getting off a criminal prosecution by saying: "My Lord, I had not got mens rea”. I do not think mens rea comes up very often in the Special Criminal Court.

It does. With respect, that is a slur on the Special Criminal Court, because no court can ignore the requirement of proven intent. It is an essential ingredient in the commission of a criminal offence.

My own view is that if you publish something which somebody says is criminal, the very fact of your publishing it means that you intended to publish it and therefore you had mens rea and therefore you had criminal intent.

We had these two fears, first of all that it was too wide and all embracing in its scope and, secondly, we feared, after the revelation by the Minister for Posts and Telegraphs that it would be used if not positively to impose censorship, at least to have the threat of censorship hanging over newspaper editors. We all had to take that from what was said over the weekend and then on top of that came this startling disclosure that one of the most critical programmes on our television network had suddenly been axed. All that seemed to many people to add up to a very serious imminent threat of censorship. It was against that background that we put down our amendment to delete all the words from "who" down to "incites". We acknowledge that the Minister has done a good day's work in accepting our amendment. As this debate and the other measure began to develop we feared that the Minister was intransigent and was not going to accept any proposals from this side of the House. The Minister has now disabused us of that impression and as the section now reads, it achieves exactly what all of us want to achieve. It will now be specifically confined to making it an offence for a person to incite or invite another person to join an unlawful organisation or to take part in, support or assist its activities.

The Minister has also accepted the second amendment. We were very concerned that this matter of recruitment be specifically referred to in this section because we feel that whatever else is involved in the field of subversion, for an older mature person deliberately to recruit a young immature person into an unlawful organisation is a particularly serious and odious offence. We were anxious that should be specifically indicated. We have achieved that by the Minister accepting our amendment. We now believe that the section could not possibly be used in any way to impose censorship or anything akin to censorship.

The Minister has pointed out at great length and in considerable detail that "inciting" is a criminal offence under the existing law. If that be so, and we accept that it is so, we have no objection whatever to accepting it in this section. We had a constructive approach and that approach has been fully justified. The words to which we objected have been deleted and our word "recruit" has been accepted. This represents an acceptable concession by the Minister to common sense and reasonableness and we would be less than generous if we did not acknowledge that he has been enlightened by his acceptance of these amendments.

I, too, compliment the Minister for bringing some semblance of respectability to this legislation by his adoption of a more reasoned approach to it. We concede there is a security problem but we do not concede the problem attained the proportions of a national emergency. We could accept the Criminal Law Bill but we could not accept the other legislation. We know that when difficult circumstances prevail there are people who will play on rights designed for the protection of the liberty of the individual and abuse those rights. In order to deal with that kind of situation certain measures are required and these measures may themselves impinge on such rights. The extent to which they should impinge should always, however, be commensurate with the degree of seriousness inherent in the situation. The Criminal Law Bill strengthens the legislation we introduced in our time but there were provisions in it which went far beyond what was acceptable and which, if unamended, could be dangerous. On second thoughts the Minister has adopted a more reasonable approach to section 3 and that approach considerably alters the situation despite what anyone may say to the contrary.

The phrase in section 3 "or any other means" was too wide in its scope. The Minister says this phrase and others were inserted for psychological effect to warn people as to the ways in which they could be tripped up. I am not prepared to accept that was the sole reason for the inclusion of this phrase "or any other means". Certainly the phrase did frighten people.

Deputy Desmond on Wednesday of last week at column 575 of volume 292 of the Official Report said:

In my view section 3 will pose very considerable difficulties for the proprietors of newspapers and for their staffs...

Today he seemed to deride the fears expressed by some sections of the Press.

Just one newspaper. The rest were quite sane but he went off half cocked.

What about the NUJ?

All members of the Press were equally perturbed by this suggested encroachment on their liberty. Last week Deputy Desmond referred to all the newspapers and their proprietors. He said they were already somewhat circumscribed by the fact that they were owned in different ways by different people and this imposed a certain censorship. I do not believe that. Staffs will assert their rights and that is a censorship imposed on all sections of the Press.

That is rather naive.

They have a sense of responsibility and a sense of civic duty. That imposes a censorship but that is the only censorship. I do not for one moment believe that the method of ownership imposes any censorship at all on any newspaper. What is proposed by the Minister now is acceptable. The Minister is going a long way here towards justifying the existence of Parliament. Some of the most important statements about democratic institutions have been made outside the House but Parliament has been able to highlight the dangers that lurked within this legislation and has been able to bring the necessary pressure to bear to amend it. That has helped to restore the prestige of Parliament.

The nub of the debate is the word "reasonable". We are inclined to depend on the broad interpretation of that, on the high reputation of our Garda and Defence Forces generally. Their interpretation of reasonable is the keynote to the manner in which this legislation will be implemented. We are not prepared to go the whole way in giving them unlimited scope, even taking into account the fact that we have reason to have a certain respect for the forces who will implement the legislation and the courts who will interpret and execute it. Nor should we be prepared to hand over the actual implementation and interpretation of security behaviour to them. This House must hold a grip on what is its function. That is what we seek to do in aiming to improve the wording of this section, one of the most important of the Bill.

A lot has been said and written in different places about the rights of an individual, in custody, before a charge is preferred against him. Those rights, provided for in legislation by this country and others, are something which have been held up as the symbol of our freedom and respect for democratic institutions.

There is nothing in the section dealing with this.

The right of an individual, in custody, not yet charged. In our very eloquent speeches in Strasbourg before the Declaration on Human Rights became a convention to which we could subscribe, we felt very competent and qualified to become signatories. I mention all of this to highlight the importance we attach to the liberty and freedom of the individual, the protection we are prepared to afford people who are innocent until held to be guilty. For that, if for no other reason, we must be most careful in the extent to which we go to produce legislation going beyond those principles for the purpose of apprehending people who use them to carry out subversive activities against the State. That is where the sense of balance enters in. That is what entirely governed our thinking and approach to this package. We were opposed to the declaration of national emergency. We do not think that the security problem obtaining has attained those proportions. We are prepared to accept that there is a security problem in respect of which we did our part to provide legislation and in respect of which we were sternly opposed by the then Opposition. They are competent now to understand better what is the position, because they have been on both sides of the House for the duration of this problem. The Minister appears to be getting worried that I am getting away from the section.

We have not even reached the section.

The Ceann Comhairle seems quite happy. I could not have said what I did without making reference to the overall position. The extent to which the Minister is prepared to meet us in respect of this section makes it a more respectable Bill and will allay many people's fears. The reason the Minister gave for those words being inserted in the first instance was that they were to be a reminder to people, would have some psychological effect on what can be done in the matter of incitement. He claimed that such will still be used irrespective of whether or not they are mentioned in the section. I do not quite go along with that. That is a matter with which my lawyer friends will deal. But, to the layman looking at this section it is much more respectable and acceptable to people who had entertained serious fears about it.

If the Minister found it difficult to deal with matters raised in the debate up to now he can blame some of his colleagues who, inside and outside the House, made statements which did not make his position any easier and which did not allay the fears of many people but rather raised serious doubts in their minds. I refer to statements made by the Minister for Defence to American newspapers and here who quite blatantly challenged us and told us there would be not one iota changed in the legislation. In the face of those difficulties created for the Minister I am pleased to note the more reasonable approach he has taken to the Opposition's point of view. This House has gained much by his so doing. This Parliament, in turn, is keeping a grip on matters which could seriously be eroded and feelings towards it have been improved as a result of the action the Minister has taken.

Amendment No. a1, by leave, withdrawn.

I move amendment No. 1:

In page 3, lines 11, 12 and 13, to delete all words after the word "who" in line 11 down to and including the word "means" in line 13.

Amendment agreed to.

I move amendment No. 2:

In page 3, line 13, after the word "invites" to insert the words "or recruits".

Amendment agreed to.

On the question of procedure, I have withdrawn amendment No. a1, in effect, and have accepted amendments Nos. 1 and 2. I would respectfully suggest that there is not much point in debating amendments which have been accepted and agreed. Could we, perhaps, now move on to section 3 because, again I would respectfully suggest, we will, in effect, be debating the section unless Deputies want to consider this the debate on the section as well? Could we agree on that procedure?

May I take it that amendment No. 3 in our name is accepted also?

That will be dealt with here.

It is not accepted.

Presumably we would have to debate that before the section.

Let me clear the matter, Deputies. Amendments Nos. 1 and 2 in the name of Deputy G. Collins have been agreed.

May I say a word——

There is no disorder in what I am saying.

I have not completed my remarks, Deputy, please.

I want to know what is going on in the House. It is about time I did.

I will repeat it for the Deputy. Amendments Nos. 1 and 2 in the name of Deputy G. Collins have been agreed. Amendment No. a1 in the name of the Minister is withdrawn. We then proceed to amendment No. 3 in the name of Deputy G. Collins.

On a point of order.

On a point of order, Deputy.

The Chair says these are agreed. Is the Chair excluding any discussion on them because I do not agree with them?

The Deputy will be able to discuss the section.

I offered and I want to speak on the matter of the agreement on these amendments. To come along now and say they are agreed and that I can speak on the section is quite a different matter.

If the Deputy wishes to speak, he may do so but I presumed that once we had agreement we could move on to the next amendment. The Deputy may speak on the section. Amendment No. 3.

I presume I can speak on the amendments.

Thank you.

Is it on amendment No. 3 that the Deputy is going to speak?

On all the amendments, Sir.

They are disposed of. Amendment No. 3 has to be moved.

We have disposed of amendments a1, 1 and 2.

We did not dispose of them. I have been here since they began and I have not been speaking on them.

They are agreed. The person who moved them and myself agreed.

Who agreed them?

I agreed them.

Of course, the Minister did but he is not everybody. He should have an idea that he is not.

The Deputy should remember that he is no longer in Government.

I am proceeding now, Deputy.

In fact, so few has he in the House that he cannot talk to anybody but himself.

Order. I am now proceeding to amendment No. 3.

I move amendment No. 3:

In page 3, after line 17, to insert a new subsection as follows:

"(2) Any person who recruits or attempts to recruit persons under the age of 18 years into unlawful organisations shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 12 years."

I want to speak on the matter on which I have offered on a couple of occasions here.

The Deputy will have a full opportunity on the section. I am now dealing with amendment No. 3 and it has been moved by Deputy O'Malley.

Am I being denied the right to give my say on any matter——

The Deputy had ample opportunity of doing so.

I had no opportunity. I offered and I was not called. Where was the opportunity? If I wait until after those who are proposing and those who are talking about agreeing, is there any fault in that?

I will call the Deputy on the section.

I want to talk on these matters about which there is agreement——

I am sorry, we must proceed in logical sequence.

The Chair is proceeding in the logic that there is a group over there and another group over here and nobody else matters a damn. I count for as much as any of them. I have been elected and I am entitled to be here. There are no rules saying I cannot be heard.

We are dealing with amendment No. 3.

The Chair should uphold that right. I should not have to come here fighting for it every time a matter is raised——

There is no need for that.

There is no need so long as I keep quiet.

The purpose of this amendment——

This is a disgraceful performance and I hope the Chair has a good look at it——

The Deputy knows I cannot go back on amendments that have been disposed of. Deputy O'Malley is in possession.

It is not a question of going back on anything. I asked the Chair, I offered when the Chair was brought into this. The Chair is being led by the nose by those two people——

The Deputy knows that is untrue. He should not make that kind of statement.

I offered but the Chair did not——

The Deputy will get ample opportunity to speak on this section.

That is not the point. I have as much right to speak as anyone else and the Chair should ensure that I can speak.

The Chair would be concerned about the rights of minorities in this House.

The Chair should be.

I have called Deputy O'Malley.

The amendment seeks to differentiate between the recruitment of persons into illegal organisations——

I have as much right to speak as any other Member——

The amendment seeks to impose a penalty not exceeding 12 years in respect of any person who recruits or attempts to recruit persons under the age of 18 years into unlawful organisations——

There is great talk about agreeing on these matters——

Will the Deputy please allow Deputy O'Malley to proceed on the amendment?

The main reason we put down the amendment was to draw attention——

On a point of order, I think we should have a House.

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

We felt it desirable to draw a distinction between recruitment generally to these organisations and the recruitment of young people. It seems to us, as it does to virtually all people, immensely more reprehensible that there are in the country, presumably North and South, people who seek to get young people under the age of 18 years to lend their support to or to join unlawful organisations. By drawing attention to the recruitment of young people, we hope it will tend to discourage it to a greater extent and that it will put people on notice generally as to the most undesirable and reprehensible action of those who seek to recruit young people into organisations that kill and maim. It is not a much larger penalty but it would be well if it were seen that the Oireachtas saw fit to fix a longer maximum penalty in respect of this aspect of the crime of recruitment than it did in regard to the matter generally.

I cannot accept this amendment because persons under 18 years are already covered by the section drafted. It does not make any distinction between persons and, therefore, it covers persons of all ages. Consequently, there is no need for the amendment. I sympathise with the desire of the Opposition to highlight the particular evil of recruitment of young persons. It is a matter on which, as legislators, we must educate the people. It is coming across that there is a danger for young persons in the sense that they are at risk when approached by these people and parents are becoming more alert to this.

From the point of view of the section there is no need for the amendment because young persons are already covered in the section as drafted. Furthermore, to have such a distinction as as to the age of the person where an offence is committed would place what could be an extra and a difficult burden of proof on the prosecution. It might also be necessary to prove that the person who did the recruiting had knowledge of the age as we are creating a serious criminal offence with a penalty of 12 years. In such a case the court would have to hold that intention was necessary and part of the intention would be knowledge of the essential kernel of the offence, the age of the person being recruited. On that score the amendment is faulty. Even if that were not an ingredient of the offence, the prosecution would still have to prove the age of the person recruited and that would be another burden. Thirdly, the section as drafted already provides for this offence, albeit with a penalty of ten years. I do not think the extra two years would be sufficient to justify a subsection with all the difficulties in it that I have outlined.

Our intention is to note the distinction between recruiting a young person and someone of mature years and to take note of this in the Bill. The Minister has stated that it could add to the difficulties in discharging onus of proof but I do not think that is so. There are precedents in existing criminal law that relate to the age of the offended person, whether one talks of cases of indecent assault, rape or other crimes. The age is an essential ingredient in the offence in some of these cases and I do not think that it adds considerably to the burden of proof; that can be discharged simply by the normal manner of proving the matter with a birth certificate. In all of these cases knowledge of the offended person's age is not an essential ingredient.

I do not wish to become involved again in the mens rea argument but a person who runs the risk of committing an offence in respect of a young person, whether in relation to this type of legislation or to other legislation—sexual offences are a good example of this—takes on himself that very serious hazard. I make those points to the Minister to indicate that our amendment is not without precedent and that the Government's acceptance of it would not involve a major change in the procedure of the law of evidence. However, if the Minister, having considered all of this takes the view that the offence is adequate, that is a matter for him, but we see the distinction. There is a precedent in existing law in respect of many offences to warrant a distinction to be made and we think that the distinction should be written into this Bill. On that basis we ask the Minister to reconsider his reaction to our amendment and, perhaps, on reflection he might accept it.

In spite of what Deputy O'Kennedy says it appears that the Minister is not prepared to accept the amendment. Like Deputy O'Kennedy I do not accept that it would create all the difficulties which the Minister has enumerated. However, we have made our point in relation to it. In view of the fact that the Minister has seen fit to accept two amendments on this section that are far more important than the one in question and in the light of the commendable change of heart involved although we were told as recently as Tuesday last that no amendment of any kind would be accepted by the Government, I do not intend to press the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 3, as amended, stand part of the Bill."

On a point of order, I should like clarification in relation to your decision at the time at which Deputy Blaney was offering. I am not taking sides but wish to have clarification in this regard. I understood the procedure would involve your having to put the section formally to the House before you could announce that there had been agreement in order that Deputy Blaney or any other Member who wished to oppose any or all of the three amendments involved would be given an opportunity of so doing. Therefore, am I right in thinking that it was a departure from precedent that you did not put the amendments formally?

I have afforded the Deputy every opportunity of indicating dissent as the record for today will show. There was agreement on both sides that the amendments be accepted and the Deputy offered slightly too late because amendments Nos. 1 and 2 had been disposed of.

I shall not go back into the muddle that has been created already by reason of the two sides of the House having agreed the amendments without their being put. Deputy Flanagan is right in that matter. I am the victim of the muddle but no doubt I shall find a way round it. Unlike those who drift in merely when the bells ring, for instance, I have been here throughout this debate. This is because I am interested in it. I am not opposing it with my feet only.

The section as amended—if one can regard it as having been amended since none of the amendments was put formally and accepted and since agreement was recorded despite the fact that not all present had indicated their agreement or otherwise—means that the Minister has now got by way of amendments from the Opposition, amendments which have been accepted in a manner regarded as gracious and a change of heart from the attitude of last week, more than he had originally. Again it is the old story that if you threaten sufficiently and then give way on your threat you are regarded as having conceded something. Last week the threat was that not one iota of the Bill would be changed. The amendments that have been inserted in place of some of the words of section 3 do not constitute any concession on the part of anyone, least of all the Minister. For the purposes for which he has included section 3 in the measure, the amendments have given him more than he had in the original wording. That is not to say that I agreed with what was in the section originally nor that I agree with what is in it now.

I see no need whatever for the section. As has been indicated already, the offence proposed under this section is covered already in our existing law. The section proposes that any person who incites or invites or recruits other persons to join an unlawful organisation will be guilty of an offence for which there is to be a maximum penalty of ten years' imprisonment. That provision is the same as it appeared in the section before it was amended. The section is aimed at people who recruit—as the Minister said usually impressionable young people—into unlawful organisations. The plural is used here when it suits the wording but as has been shown clearly there is no intention of applying this section, no more than any other, to any but the one organisation. It will be legal, as it is now, for persons to incite others to join all other organisations that are rampant in the Six Counties. Neither is it an offence to belong to any of these organisations despite their notoriety, their reputation and despite the claims they have made for some of the outrages that occurred. All of that is of no consequence because of this one-track minded attitude in so far as unlawful organisations are concerned.

We are labouring under the belief that regardless of whether we use means fair or foul, regardless of whether those means comply with any of the general norms of proper treatment of the individual, regardless of how we might infringe such rights, everything is in order so long as we can be seen to be knocking the one organisation to the exclusion of all others, whereas the essence of the situation is that by being selective to such degree all that is being done is creating an antagonism within the public mind against the authority that is seen to be so heavy-handed in its selectivity in the application, preparation and enactment of laws which deal with only one organisation as against all the others. The happiness and pleasure expressed by Fianna Fáil, and their gratitude to the Minister for having accepted their amendment, are very much misplaced because the section is unnecessary either in its original or amended form. What is proposed in it is already available in the common law but the Minister defends its inclusion on the basis that although what it is proposed to deal with is already covered in the common law— according to his introductory speech he said these offences can now carry unlimited fines and imprisonment, to rely on the common law would be an indirect and technical method of approach.

The fact is it is in the common law and there is no limit to the fines or imprisonment that can be imposed. The Minister does not justify its inclusion. He says that the fact that the matter can be dealt with under the common law does not make this section inappropriate. I say it not only makes it inappropriate but it should be scrapped. On the Minister's admission, this section is here to make it more convenient for the prosecutor or the prosecution who, apparently, are to take precedence over the long suffering public.

There have been sighs of relief here that the news media will now be free from the dangers outlined the other day by the Minister for Posts and Telegraphs. There is nothing in this section as amended to protect the newspapers. They will still be inhibited as they were up to now by the propaganda of the present Government which forces them not to speak the truth, not to give a fair overall spread of what is happening lest what they would publish would be about one organisation, excluding all the others who also should be proscribed. The newspapers and the nationally controlled television and radio station will now be on a totally selective basis as far as the news of the gruesome happenings up North are concerned. Indeed, it will be much more so because this section is mainly aimed at the convenience of the prosecution to do things which they could already do under the common law.

There is more in this than meets the eye. The Minister may smile and nod assent when I say that he can get as much if not more in the section as amended than he intended in the original section. The Minister for Posts and Telegraphs let the cat out of the bag in his usual inimitable way and that cat is still around and his claws are still in this section as amended. Its selective application will continue to be there and this has been clearly indicated by the Minister. In his introductory statement he said:

To rely on the doctrine of incitement could no doubt be adequate and appropriate in respect of many offences; but in the present instance we are concerned with a particular evil the essence of which is recruiting for unlawful organisations and it is clearly right to deal with it by a specific provision referring to the kinds of conduct aimed at and providing the appropriate penalty.

The "particular evil" is, of course, the IRA but not the murders, the burning of houses with people in them and all the other evils committed by organisations such as the UVF, the UDA, the National Front and the others. They are not a particular evil, nor will they be so declared, according to the Minister, because he and his Government are not of the opinion that they are such types of organisations as should be prescribed. They can go their merry way and their evil way. They can recruit publicly and otherwise on both sides of the Border.

They can declare themselves to be members of these organisations. They can and they will continue to make claims about what they have done by way of depredation and damage and murder over the years. They are quite free and untrammelled by any part of this section because of the Government's lack of conviction that they are subversive organisations, that they are dangerous, and that they are doing our people down in the Six Counties and occasionally on this side of the Border. Again, we have the selective application of the section because of the Government's attitude and their blindness to the real problems causing trouble in the country.

The Minister said section 3 seeks to do a number of things. He says it is important to note three points in respect of the section. He said the offence is not to be limited to incitement to join the organisations but will extend to incitement to help the organisation by other activities which might not be easily identifiable as specific offences so that persons could be successfully prosecuted for incitement to commit them. I take it the movers of the amendment are happy with the latter part of that. Does the Minister still see that as being capable of being used in the wider sense than would be the hope of those who by their amendments have attempted to restrict its application to some degree while, at the same time, making the intention of the section more directly effective for the purpose of dealing with only one subversive organisation? Perhaps they have forgotten about that. The Minister said the second point is that the proposed offence will apply to inviting as well as inciting. We have now added "and recruiting". The Minister said:

The third point is that, by providing a higher penalty for bringing other people into an unlawful organisation than for being a member, the Bill will show clearly that the legislature regards recruiting as even more serious than membership.

How does it matter two hoots what the Legislature may indicate? What matters is what we pass here and how it is interpreted by the Judiciary. The Minister implies that if we want persons to get two or three years' imprisonment we provide for 12 years' imprisonment and, when the case goes before the courts, the innocent Judiciary are induced to give a sentence of three years because we provided for 12 years. The Minister has belittled the Judiciary, perhaps unwittingly, in his whole approach to this measure providing extraordinarily increased penalties on the basis that we must show the Judiciary we take an extremely serious view of this matter. These men are trained to be judges. Otherwise they should not be on the bench. We are trying to lead them by the nose. You would think they were little children. You would think they did not know what time of the day or what day of the week it is and that, if we provide stupidly long terms of imprisonment, they will be induced to step up the sentences. We are told that a term of two years was given by the Judiciary in the very worst cases and, therefore, they had little latitude to step back from the worst to the not too bad case. We are providing these outlandish sentences to induce the poor innocent Judiciary to forget their training and judgment as to what punishment should fit what crime.

The Minister's indication that he takes a more serious view of recruitment to an organisation than of membership would seem to be a contradiction. If it is a crime to be a convinced member of an unlawful organisation, surely it is not as big a crime to recruit members. This gets us back to what the Minister said earlier about relativity. Perhaps we can excuse him on that basis, but I do not see the logic in talking about punishing people for inciting, inviting or recruiting, when the people who invite and incite and recruit the most people so far as the IRA are concerned, or any other subversive organisation if ever there is one so described by the opinion of the Government, which I doubt, are the people who are attempting by the application of these laws to wipe out that organisation altogether.

The people who recruit most teenagers are the people who are responsible for putting away their fathers and brothers, that is, the State. Over the years we should have learned that repression and heavy visitations of sentences on people in the IRA are not the way to diminish support for them or recruits for them. In fact, they are counter-productive. That is already evident without getting into the realm of the application of these new and amazingly lengthy sentences, and the new offences which are being created, new in the context of this Bill but already covered by our existing laws.

I cannot reconcile the attitude that we got anything from the Minister by his acceptance of amendments. We have got a change of heart in that he is no longer stone-walling but in so far as getting anything with any real meaning in it that has not changed. He is stone-walling as much now as he was at the outset. He is not codding everybody by saying: "I will take that; it means much the same as I had there." I agree it is a change but it is no change in the real application of the law as proposed in the amended section.

That section still has the same impact, the same objections and, perhaps, to some minute degree it can be argued that in some respects it is not quite as dangerous as it was but nobody will say that it is not still dangerous. While it is reduced to some degree in its verbiage, I do not agree that its actual content has changed. The Minister up to now, with one exception last week, has stood steadfastly to whatever was in his brief and would not change anything. There has been an over-reaction in welcoming the changes and it is unwise to be placating or reassuring the newspapers and the media that the warnings of the Minister for Posts and Telegraphs to them are still not capable of being visited upon them. It would be unwise for the newspapers to take the changes made today as curing all the fears they might have had. They are still suffering from fears and, in fact, without this section at all they had their fears. There were grounds for those fears. They and the Government, and everybody who has been in Government knows they had their fears without this section. They know that those fears are in no way diminished by these amendments. They can still have the worst visited upon them as the Minister for Posts and Telegraphs said last week, prematurely, no doubt; he wanted to be first with the news himself. The dangers are still there and for that reason all these things are unnecessary.

To say that this is for the convenience of our State prosecutors is a poor excuse. It is not necessary; it is superfluous. No matter how this section is amended I will oppose it as strongly as possible and with everything at my command because it should not be there. As the Minister said four years ago, we have too many laws.

One has to avoid some understandable temptations in dealing with this section. I will refrain from quoting from any speeches made from this side of the House on Second Stage although the points the Minister has now almost verbatim repeated in accepting our amendment were made then. It would be ungracious of us to underscore that the arguments we made so consistently have been fully vindicated and accepted. I do not want to be seen to take any joy or satisfaction from the fact that the Minister may seem to have climbed down from his original determined and confident position. I welcome the fact that he has belatedly accepted our amendments. I agree with him that the section as it now stands is much more effective and the need for what he was introducing was not at all clear unless it was to extend the scope of the section to people whom we were told it was not intended to apply, namely, the press.

We must be clear as to the obligation of a Government before they bring in this kind of legislation and this type of section and in this regard I should like to quote what the Minister for Foreign Affairs said on 8th September, 1976, as reported at column 641 of the Official Report:

It has been suggested that the section was brought in in some way to deal with the press. That is simply not true. In relation to this section the question of the press never arose in its preparation, drafting or discussion. It was brought in for the purpose of getting at those who recruit to the IRA. The question of the press did not arise in connection with it at all when it was being drafted, prepared and decided...

If what the Minister for Foreign Affairs said on that occasion is accurate and true, then it is a reflection on the Government because clearly the question of the press should have arisen in its preparation, drafting and discussion. It seems extraordinary that every section of the community, the newspapers and the public, as soon as the Bill was published immediately noticed the implications the section could have for the press.

It is extraordinary that the Government who spent so much time considering this legislation in great detail at no stage considered the implications this would have for the press. On the face of it that is scarcely creditable and if it is creditable it is a reflection on the Government who should give much more serious thought to the effect of legislation before they present it to the House. Is it accurate to say what the Minister for Foreign Affairs said in connection with this section? The Minister for Posts and Telegraphs on the previous day said, as reported at column 479:

...But something I am sure of is that an editor contemplating the publication of such a letter as that I have just quoted would be likely to consult his legal advisers once this law is passed and that the advice received would be likely to result in a significant diminution in the publication of pro-IRA propaganda.

Then he made these telling remarks:

That is what is intended under this legislation. We make no secret of that intention.

There we had a Minister saying that there was a clear intention in the legislation to ensure that certain types of publications that appeared in the press hitherto would not appear subsequently. He was referring to a letter which appeared in one of our newspapers. Nevertheless, on the following day the Minister for Foreign Affairs told us that the Government never considered the press. The Government, if these divided counsels so clearly expressed in those statements are evidence of the way they approach legislation, owe it to the House and to the public to examine that legislation more carefully. They owe it to the public to examine the consequences of legislation more carefully.

I will be supported by every member of the Fianna Fáil Party when I say that we looked at that section as drafted and in within 15 minutes we had formulated the amendments which the Minister has now accepted. Immediately we read the section as the Minister originally introduced it, we saw the ramifications that the Minister for Foreign Affairs said were never considered by the Government, but that the Minister for Posts and Telegraphs seems to note were considered. While we appreciate the fact that our arguments have been vindicated and that we are ad idem in getting at the godfathers of the IRA, or any unlawful organisations, we think that more care should be given in future to such sections.

There has been some suggestion about selectivity. I want to make it quite clear that we hold consistently to the position we have stated here throughout this debate. When we are talking about inciting or inviting to join an illegal organisation we are not talking in terms of the one illegal organisation that happens to be the subject of suppression order, we are talking about all unlawful organisations which, by definition, having regard to their activities, are as equally unlawful as the IRA. The fact that they may or may not be the subject of suppression orders is irrelevant at this stage. Deputy Blaney apparently thinks that there is selective application. That may be the case from the Government's point of view but from our point of view every organisation that has unlawful aim, as defined in the 1939 Offences Against the State Act is covered by section 3. We would remind the Minister to bring that to the notice of the Garda Síochána so that we can see a definite move against all unlawful organisations on a common front.

It is natural that we on this side of the House should be pleased that the Minister for Justice has accepted amendments put forward by Fianna Fáil. At the same time it would be wrong if we were to pass from this section without reminding the Minister and his colleagues in Government of the immense amount of damage done to the institutions of this State, the great shaking given to the belief of the people in the motives of the Government, and the immense damage done outside to the reputation of this country by what was attempted by this Government in section 3 of this Bill. No amount of praise that may now be rightly given to the Minister can take away from the fact that that damage is irreparable. The fears internationally expressed about the motives of this Government because individual members of the Government spoke in very different voices about what the Government's intentions were, the fears expressed throughout the editorial chairs of this country and throughout the press rooms of the globe about the intentions of this Government in bringing in this Bill will take an awful lot more to eradicate them than the mere acceptance of a couple of amendments this evening.

The fears that are driven deep into the hearts of the ordinary people because of what this Government attempted to do, but were ultimately forced to abandon, will not be eradicated by the mere acceptance of amendments, which I have no doubt the Minister was obliged by his Government to accept. It could not be otherwise because the Minister had an opportunity last week to circulate his own amendments. Even as late as that time the Minister was not prepared to accept the Fianna Fáil amendments which he has accepted now. Obviously pressure from the Government or from outside brought about this change of mind. I hope the Irish people will not forget what this Government tried to do. I would ask the people to judge the members of this Government by what they attempted to do in regard to section 3 and not by the final result. The Parliamentary Secretary to the Minister for Local Government made it perfectly clear what the Government's intentions were last week when in Volume 292 at column 552 of the Official Report for 8th September last he said:

as Members of this House, we know that many people in high places, particularly in editorial chairs, have acted recklessly in the past.

He then went on to preach rubbish about the duties of editors to provide the people with food for good clean thought. He is not worth talking about.

The action of the members of the Government will be remembered and a very great deal of good conduct by this Government and its individual members will be needed to wipe out its actions from the minds and hearts of a disillusioned Irish people, a disillusioned world, a disillusioned Europe of which we are no longer the full part that we were a couple of weeks ago, having derogated from the European Convention on Human Rights. Those who admire the stand that Ireland has taken in so many ways in the name of liberty and for human rights, over the last decade, at the League of Nations, the United Nations, and at various international organisations, those who admired the way in which we have practically applied what we have preached about outside and inside our country to the betterment of our people, were deeply shaken and greatly surprised at what has taken place here, about what they have discovered about the intentions of the Government.

The damage done by the Government will, as I said before, take a very great deal of time to cure, if it is possible for the damage to be cured at all. My own belief is that the reputation of this Government is irretrievably damaged. My own belief is that the Irish people can no longer be persuaded this is a trustworthy Government and they hope to get an opportunity of expressing that view in the near future.

Question put and agreed to.

A Leas-Cheann Comhairle, I think we might, by agreement, have a short break until, say, 8.15 p.m.

Business suspended at 7.45 p.m. and resumed at 8.15 p.m.


Question proposed: "That section 4 stand part of the Bill."

Section 4 amends section 25 of the Offences Against the State Act, 1939. It empowers an officer of the Garda, not below the rank of chief superintendent, to make a closing order on a building on the conditions as set out in the 1939 Act.

The amendment extends the period of operation of the order. Under the 1939 Act a building may be closed for a period of three months in the first instance and may be extended for one further period of up to three months. Section 4 of the Bill proposes to allow the building to be closed for an initial period of 12 months and then for a further period or periods of up to 12 months in each case so that the total period of closure shall not exceed three years.

Of course, there is power under the 1939 Act for a person to challenge a closing order in the courts. I might say that this is not a power which has been used frequently, not one which is apt to be used frequently. It was used quite recently in regard to a premises in County Cavan where the manufacture of explosives and weapons was taking place. While it is not a power that is used extensively, it is a very useful one to deal with such cases.

Question put and agreed to.
Question proposed: "That section 5 stand part of the Bill."

Section 5 replaces section 29 of the Act of 1939. Subsection (1) provides that where a superintendent is satisfied there are reasonable grounds—as set out in the section— he may issue a search warrant. That warrant may be directed to authorise a Garda sergeant to execute it. In the 1939 Act the officer to execute the search warrant had to be of the rank of inspector. As I think I explained on Second Stage, it has happened that a number of places have had to be searched simultaneously. Deputies will understand that if a largish area of the countryside is being combed it would be necessary to enter quite a few premises simultaneously and there might not be just sufficient inspectors on the ground at the time required. Therefore, the execution has been extended to a sergeant. In addition, the warrant may be directed to members of the Garda or the Defence Forces. At the moment it can be directed to the Garda or any other persons named in it. Certain rights arise on foot of the warrant to seize property and to retain it for evidence —that will arise under section 9. Then there is provision as to what is to happen if the forces are obstructed or are given false or misleading information.

The offences would be offences under the 1939 Act, the Criminal Law Act—if it becomes law—and scheduled offences.

The Minister has said that section 5 is a replacement of section 29 of the Offences Against the State Act, 1939. Under the Offences Against the State Act, 1939, I understand a search warrant was issued by a chief superintendent. This has been brought down to the rank of superintendent. Would the Minister comment on that?

In that connection I would draw the Deputy's attention to section 3 of the Offences Against the State Act, 1939, which says:

Any power conferred by this Act on an officer of the Garda Síochána not below the rank of chief superintendent may be exercised by any superintendent of the Garda Síochána...

Therefore, it is not a radical departure to give the power in this case to a superintendent.

Again, there is a limited number of chief superintendents in border areas. There is one in the divisions of Donegal, Sligo/Leitrim, Cavan/Monaghan and Louth. Of course, that covers quite a stretch of country. It may be necessary to search in a hurry and it is operationally more practical that the power to issue the warrant would be in the hands of a superintendent and not confined to a chief superintendent. It is a matter of practical convenience so that the Garda may operate more efficiently.

I understood the Minister to say that the warrant could be directed to a member of the Garda Síochána or to a member of the Defence Forces.

I am glad to have that assurance because it seems to me that the warrant must be specifically directed to a member of the Garda Síochána.

Not below the rank of sergeant.

But a member of the Garda can be accompanied by a member of the Defence Forces?

And can only be issued to a garda not below the rank of sergeant.

I think the Minister did say directed to a member of the Garda Síochána or——

If I did say that, it was in error.

He is to be accompanied by a member of the Garda Síochána if it is a member of the Defence Forces.

It cannot be issued to a member of the Defence Forces at all.

Yes, but the question I posed was this. Can a search warrant be executed by a member of the Defence Forces without a member of the Garda Síochána being present?

Is section 5 agreed?

There is in subsection (2) and some subsequent sections—section 7 particularly—the provision that anything held during a search may be seized. This applies not just to the searching of a vehicle, vessel, aircraft or hovercraft or any other place named in the warrant. It is empowering the searching of any person who happens to be there even though he may have no connection with the location and could not be regarded as coming within the terms of the warrant. Nevertheless, provision is made for the searching of any such person. The last line of the subsection reads: "...and to seize anything found there or on such person". The term "anything" is very wide. There is no obligation regarding when "anything" may be returned or if it may be returned, irrespective of the effect of such loss to the person concerned. The power is there in the Bill; it is not qualified in any way, nor is there any provision made for its return. I should like the Minister to tell the House why he regards this provision as necessary. Is there no way by which the term "anything" may be qualified? Is there no way to ensure the return of any article that is seized?

I would refer the Deputy to section 9 which provides what will happen articles seized. They may be retained for use as evidence in criminal proceedings for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings. Thereafter the Police (Property) Act applies. They are returned to the owner or are disposed of as directed by the District Court under that Act. This is stated in section 9 of the Bill.

Therefore, we need to take section 9 and read it with the section we are discussing?

Yes. Section 9 makes provision about what will happen to articles seized on foot of a search under section 5.

What is the situation in cases where the seizure of the article constitutes a grave and irreparable loss to the person concerned? An example could be a large sum of money held by someone, which was seized from him, but which was for a specific purpose and which was required immediately. While it might be regarded as suspicious that he held that money——

There have been instances where, as a result of a search, sums of money have been found on persons detained. The property can be held until proceedings are commenced; otherwise it can only be held for a reasonable time. It would be for the owner of the property if he considers the time unreasonable to make an application to the District Court for the return of the property under the Police (Property) Act and it would be a matter for the District Court to adjudicate on that.

I do not know if that covers the matter. So far as the issue of a warrant is concerned, where a member of the Garda Síochána or the Defence Forces may operate a warrant under this section——

No, that is not right. The warrant can be issued by an officer not below the rank of superintendent and it can be issued only to a garda, not below the rank of sergeant. On its execution he can be accompanied by other gardaí and/or soldiers.

Subsection (3) states:

A member of the Garda Síochána or the Defence Forces acting under the authority of a search warrant under this section——

Does that refer to the authority——

Subsection (2) governs that. It states:

A search warrant under this section shall operate to authorise the member of the Garda Síochána named in the warrant, accompanied by any members of the Garda Síochána or the Defence Forces,...

Is subsection (3) subservient to it in all respects?

Then, we are left to deal with the sergeant. It seems clear that the reason for this stepdown in the rank of garda who may be named in the warrant to a person below the rank of superintendent is due to the fact that there does not appear to be a sufficient number of inspectors or those of higher rank to execute all the warrants expected as a result of this legislation. We have more gardaí in all ranks than ever before but it is only now that we are providing legislation to name a garda of a rank lower than that of superintendent to operate a search warrant. Again, this raises the question as to what sort of situation the Minister envisages for the future in which there will not be sufficient police officers higher than and including the rank of inspector to deal with all the warrants necessary at any time. One wonders how we managed in the past in circumstances much more serious than is the case now.

We managed all right up to now but not as efficiently or as speedily as we would have wished when executing search warrants. This was because the full carrying out of searches was delayed until such time as inspectors were present to issue the warrants. It is of the essence of the relevant provision in the 1939 Act or of the legislation before us that searches be conducted speedily. So far as I am aware no searches have had to be put off because of there not being an inspector present but it has been reported to me that delays have occurred in carrying out these searches. The Deputy will appreciate that if the need for a search arises it is usually very important that it be carried out as speedily as possible and if several houses have to be searched it is important usually that they be searched simultaneously.

I take it that the Government are expecting a substantial escalation in the incidence of search warrants since there are more personnel within the higher ranks of the Garda than ever before but even with this section they are not regarded as sufficient to cope with the situation of warrants in the future.

It does not follow that there will be an increase in the incidence of searches following the passing of this Bill but the point is that the Garda will be enabled to carry out the searches more speedily and on a broader front.

The use of the phrase "broader front" would seem to contradict the case for a greater necessity for search warrants. I suppose we can only wait and see, as may be the case in regard to much of what is contained in this measure. Would the Minister agree that under this section, which is purporting to cater for an emergency situation, the issuing of search warrants would become part and parcel of our criminal law and, if so, is this not an encroachment on the rights of the public generally? It would appear that this sort of provision, which as well as copperfastening the existing situation is widening the net in regard to the searching of persons and their property, is an indication that the State is the all-powerful entity in this matter and that what the State requires must take precedence over everything else. I would not agree with that attitude but if the situation is such it is well to divorce it from the thought that it has any relationship to the declared state of emergency but that it relates to the situation as it will be permanently from now on. Is it possible that we may move further in the same direction at any given time so as to allow for more interference generally in the lives of the public? This is what the section conveys to me.

Not accepting that there exists a national emergency I am viewing the legislation as I would view it at any other time. What I see is a widening to an unbelievable degree of interference with people and their property, an interference that is not necessary in terms of the common good but which, perhaps, for very little reason and with very little gain, interferes with people in the privacy of their homes. In those circumstances we are talking more of those who are innocent than of those who may be of wrong intent.

The provision in regard to penalties for the obstruction or the attempted obstruction of a garda or a member of the Defence Forces in the execution of searches on foot of warrants would seem at first glance to be justified but we know from past experience that obstruction in that sense can be alleged against someone who merely applies the pressure of his little finger in an effort to impede a garda or a member of the Defence Forces. Consequently, if one measures such technical obstruction against the sentences proposed, the provision would appear to be open to abuse because if a garda were obstructed merely by the placing of a silk thread across his path, such act could be construed as obstruction within the terms of this measure. It would depend on the attitude of the garda concerned as to whether the accused would be faced with a severe sentence.

Again, depending on the attitude of individual members of the Garda or Defence Forces, searches could take place at any hour of the night or at the most inconvenient hours during the day. While a garda could not expect a welcome at any time that he made known his intention to search a private house we are setting up a situation whereby many innocent people may rightly resent what will be done and in the course of their objections to the invasion of their homes may be held to be obstructing the security forces. Their obstruction may be no more than a strenuous objection to the invasion of their privacy at any hour of day or night. Is there not a great danger in this type of operation that they will find themselves in court and subject to heavy penalties on the say-so of a Garda officer? Have the Minister and the Government considered this aspect in framing this section? In their enthusiasm have they ignored or completely overlooked that at the point of the invasion of their privacy people will be resentful and will react? Resentfulness on the part of such people could be easily understandable but it clearly could be regarded as obstruction—not necessarily vicious, only a natural reaction to circumstances that can arise under this section.

This is a section that will create more difficulties than it is likely to cure. It is in complete keeping with what has come before it and what would come after it in this legislation. Are we not in this legislation creating by parliamentary devise a national emergency which does not exist? Are we not pretending that something exists which does not exist? Are we guilty of self-deception? Deputy Desmond spoke of self-deception which is afoot which may well condition us, and the public through us, to acceptance of matters that can do more harm than good, perhaps totally unwittingly. I do not support any aspect of this section despite the elucidation the Minister has given of a couple of points. To my mind it is a section we could do without and if it is we should do without it.

Deputy Blaney is worried that the section widens the net in terms of searches. The size of the net is determined by the range of offences in respect of which searches may be made and there is absolutely no change in that regard of the position in the 1939 Act, with the exception, of course, of the inclusion of offences under the new Act. Under the 1939 Act the search could be made in respect of offences under the Act. This proposed section provides for searches in respect of offences under the 1939 Act, this Bill and scheduled offences, which broadly speaking are very serious terrorist type offences. In essence, there is no significant widening of the net.

The fact that the warrant can be executed by a sergeant instead of an inspector does not add to the dimensions of the search, as the searches will be determined by the situation on the ground, not by the fact that there are more sergeants available. The only difference that would make is that searches will be carried out more speedily and, hopefully, more effectively.

Obstruction, I am glad to say, has not been a serious problem and I am not aware of any large number of prosecutions for obstruction of the Garda in the course of carrying out their duties. I do not think it has been a problem. Even people one might not have expected have co-operated in these searches and I am certainly not aware that there has been any difficulty in that regard. Should there be a prosecution for obstruction it would be for a court to decide the appropriate penalty on the offence being proved. In deciding the appropriate penalty, the court would take all mitigating factors into account and would apply the penalty appropriate to the offence before it.

Question put and agreed to.

It is not agreed to.

Deputy Blaney is taken as dissenting.


Question proposed: "That section 6 stand part of the Bill."

This section creates certain offences relating to escape from custody. Escape and rescue from custody are already common law offences but aiding a prisoner to escape or to attempt to escape is a statutory offence and it arises under a whole series of very old Acts. Section 6 (1) provides in modern form an offence of aiding escapes from custody. Subsection (1) provides:

Any person who—

(a) aids any person in escaping or attempting to escape from lawful custody or, with intent to facilitate the escape of any person from lawful custody or enable a person after escape to remain unlawfully at large, or with intent to cause injury to persons or property in a place where a person is in lawful custody, conveys any article or thing into or out of such a place or to a person in such a place or places any article or thing inside or outside such a place, or

(b) makes, or takes part in, any arrangement for the purpose of enabling a person to escape from lawful custody, facilitating such an escape, enabling a person after escape to remain unlawfully at large, or causing injury to persons or property in a place where a person is in lawful custody,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.

Subsection (2) provides:

Any person who, contrary to any rules or regulations in force in relation to a prison, conveys or attempts to convey any article or thing into or out of the prison or to a person in the prison, or places any article or thing in any place inside or outside the prison with intent that it shall come into the possession of a person in the prison, shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

This subsection is to penalise the unauthorised taking of material into or out of a prison. At the moment under the Convict Prisons (Ireland) Act, 1854, there is a prohibition against bringing in and carrying out of unauthorised material, but that is only in respect of convict prisons. The Prisons (Ireland) Act, 1856, prohibits the taking of unauthorised material into a prison but it does not prohibit the taking of such material out of a prison. There is a gap there which subsection (2) seeks to close.

Subsection (3) empowers a prison officer in the interest of security to search a person when he is a prisoner in the custody of a governor of a prison. Those powers are already there by virtue of regulations but it is felt better to give them statutory form.

There are just a couple of questions on this section. I do not think we can have any particular objection to it. Indeed it is to be welcomed in so far as it spells out the law in regard to these matters. First of all, I take it from reading the section that it applies to all prisoners who become part of our general prison regime. To that extent in so far as it clarifies the law it is, perhaps, useful. I find a little difficulty about it because section 32 (2) of the Offences Against the State Act, 1939, provides: "Every person who shall aid or abet a person detained under this Act to escape from such detention or to avoid recapture after having so escaped shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding three months."

The question which comes to my mind is: is there duplication there? Section 6 makes no reference to section 32 of the Offences Against the State Act, 1939, and to that extent it seems to me that there is some looseness involved. Does it replace section 32 (2) or will both of them stand side by side? If they do, they seem to me to be somewhat contradictory. Perhaps the Minister would clear up that matter for us.

Secondly, section 6 (3) reads:

A prison officer may in the interests of security search any person at any time while he is in a prison or while he is in the custody of the governor of a prison.

My question to the Minister in that regard is: does that cover visitors to prisons? Does it cover persons visiting prisoners, or is it specifically confined to prisoners themselves? It seems to me that one way or another the wording is not exact, is not precise. If it is intended to cover only persons in custody in prisons it should say so, or if it is intended to cover both prisoners and persons visiting prisoners it should also say so quite specifically. These are the only questions I have at this stage.

Section 32 of the 1939 Act applies only to a person who is detained under section 30 of the 1939 Act. Section 6 of this Act covers all persons in custody whether they are in prison or in a garda station, which is essentially what section 32 is concerned with. To the extent that detention under section 32, the limited type of detention in a Garda station or other convenient place, is covered by section 6, there is duplication but that is the only area of duplication present.

It is undesirable nevertheless.

It is undesirable I agree, but to draft it out would lead to immense problems and would lead to all sorts of provisos. It would make it extremely difficult to read and it could well become unintelligible. In practice I do not think there will be any difficulty, nor will there be any undesirable features resulting from leaving section 32 because of its extremely narrow application.

The power to the prison officer to search covers power to search any person in prison. I think that is quite clear from the wording of the subsection:

A prison officer may in the interests of security search any person at any time while he is in a prison...

It is clearly intended to cover visitors. It can cover members of the Garda Síochána, members of the Defence Forces and other prison officers themselves, and it is so intended. The reason for the words, "or while he is in the custody of the governor of a prison" is that a prisoner could be attending court for his trial. While he is in the courthouse he is not in the prison, but he is in the custody of the governor of a prison. The power is to enable a prisoner to be searched while he is in the custody of the governor of a prison.

It is the use of those words that throws some doubt on the previous words.

The "or" clearly distinguishes the two situations.

In his reply to what Deputy Haughey raised about section 32 of the 1939 Act, did I understand the Minister to say that Act was confined in its application? Does it apply only to those held under the 1939 Act?

That is right.

Until this Bill becomes law, is there no offence existing under any other law for aiding and abetting an escapee who was duly and legally held in prison or in custody?

The law in that regard is not as clear as it should be. Aiding a prisoner to escape or attempt to escape is a statutory offence. Some of the statutory provisions dealing with it are contained in section 4 of the Tumultuous Risings (Ireland) Act, 1831, section 18 of the Convict Prisons (Ireland) Act, 1854, and section 32 of the Prisons (Ireland) Act, 1856. These are all very old statutes and it is confusing to have an offence spread between three very old statutes. It is preferable that it should be reenacted in modern form.

How did the Minister overlook the word "tumultuous" in drafting this package?

Is any attempt being made to substitute a new section for three sections of three different Acts which are extremely old? Is there any question of their being scrubbed? Why are they not taken away to tidy things up if they are not useful? This will supersede them all in its effect. The sections the Minister mentioned should be scrubbed and so should section 32.

Does the provision in regard to prison staff cover any member of the staff no matter how he is employed or for what purpose? People who look after the needs of prisoners and their maintenance are all prison staff. Are they prison staff within this definition? The Minister mentioned members of the Garda. Does this mean the prison staff can search each other at any time? This could become a bit of a lark rather than an operation.

"Prison staff" are not the proper words to use. The section mentions a prison officer. That is a clearly identifiable person who has been recruited into the prison service through the normal channels. They are the only persons with this power to carry out a search. Certain procedures are observed for persons coming into prisons. These procedures apply to everybody coming into a prison from the most senior Army or Garda officer, prison officer or civil servant, down to the newest member of the service. In that sense a prison officer may search prison officers.

The overall security responsibility in any prison rests with the governor and it would be for him to decide on any searches to be carried out other than the routine regular searches. I agree with Deputy Blaney that it would be nice to repeal all these old Acts. There are many very old criminal Acts on our statutes which have fallen into complete disuse and which are never operated. It would be nice to repeal them but it does not make the legal situation more difficult by leaving them there. When they are superseded by a modern version they fall into total disuse. I am not sufficiently familiar with the sections I mentioned to be able to say they could be repealed simpliciter. There may be other clauses or provisos in these sections which would have a life of their own and their repeal might be quite difficult.

The Minister might follow the codification of law reform I initiated.

If the impetus the Deputy started had been kept between him and me it might have been possible to do it.

I was worn out trying to get Bills through this House.

Are the penalties provided in subsections (1) and (2) parallel with the provisions for penalties in any or all of the three sections the Minister mentioned in three older Acts? While I accept that there is a security procedure in regard to visitors attending at prisons, does subsection (3) envisage a situation whereby they will undergo a rigorous check before they go into the prison and that at any time while in the prison they may be further searched? Is this regarded as a likely happening?

It is not envisaged that would happen but it could happen. The standard of scrutiny in a prison depends on the security considerations attaching to such a prison. The Deputy will appreciate that there have to be stricter security measures operating in Portlaoise and Limerick than, for example, Mountjoy or Shelton Abbey which is an open prison. There is a difference in approach depending on the situation in the prison. On the question of penalties, I regret I am not in a position to give the Deputy details of penalties fixed by the old Acts I mentioned but I am certain that they would be considerably less than the penalties provided here. The penalties provided here are serious because the offences in a modern context are serious ones and are likely to cause a lot of public concern when they have taken place.

The money part of it would not worry me but the stepping up in time would. While there is justification for the money increases, there is no justification for the time penalties being increased unless they are totally out of keeping and out of step with the relativity the Minister is so careful to try to carry through this measure. Will the Minister ensure that the provision in subsection (3) is not used in a way that will mean an even further imposition on the innocent visitor who has to run the gauntlet, in the interests of security when entering the prison? Will he ensure that it will not be an added deterrent to such visitors to make the infrequent visits they are allowed to make? So many visits turn into disappointment because the visitors find that having gone through the searches the person they went to see is not allowed visitors. Some of those visitors have to make long journeys and then suffer the disappointment of not being able to see the person they wish to see. I hope this section does not further discourage some of them from travelling. I hope the system is not devised to discourage them seeing their folks in the prison rather than to facilitate them.

I should like to assure the Deputy that the system is not so devised. The system is forced on us by the avowed intention of the prisoners at Portlaoise— I take it the Deputy is referring to that prison—to use every and any possible means of escape. They are also not prepared to conform to prison discipline in many ways. When one has a number of prisoners who have expressed the intention to try to escape then, naturally, a stricter security regime must be applied in that prison. If those prisoners were prepared to give an undertaking to conform to prison rules and not to seek to try to escape, then there could be considerable relaxation on the security at present in operation there. I urge the Deputy, if he has any influence with those people or with their families, to convey that message to them. It is no joy to me or to the prison authorities to have to enforce a strict regime in terms of security. This is forced on us by the avowed intention of these people to at all times try to escape.

In the past visitors have been used for the purpose of conspiring to escape. There was the notorious case of the woman who carried in explosives in her vagina. That case was rather horrifying. We have had instances of explosives being brought in concealed in the heels of shoes. These are some of the activities of visitors. When I mention these the Deputy will understand the need for strict and continuing strict security. It would make life easier for everybody if these people were prepared to give an undertaking not to escape, attempt to escape or seek to escape and to conform to prison discipline. If that undertaking should be given, then the security measures could be relaxed and that, undoubtedly, would be in ease of the prisoners and staff. The measures in operation at Portlaoise or at Limerick are not designed to impede visitors. They are designed with one objective in mind only, to keep prisons secure. The recent changes made in visiting policy were made to try to obviate too many visitors at the one time crowding into the prison visiting room. It would be easier for everybody if the prisoners would instruct their visitors to agree to what was suggested, that visits would be on a pre-arranged basis so that when a visitor arrived there would be no long delay and no undue crowds. If there is co-operation by the prisoners, a regime easier for themselves and the staff could be implemented.

Would statements or undertakings given by prisoners that they would not attempt to escape be of any real significance as to the outlook of any prisoner in any institution? Is it not an unusual situation to be relying on, the barring from something or other people who either give it or do not give it or declare it as their intention that they will try to escape? Is the Minister aware whether any of the escapees of the past were people who declared that they would not attempt to escape? How many prisoners are still in who have never attempted to escape but who have said they would attempt to escape at any opportunity? If it aids their aims and objects of trying to make a successful break, I would be surprised if prisoners would not in furtherance of that aim be declaring themselves as not desirous of escape in order to facilitate their aims of escape.

It seems to be an extraordinary setup that the decision either way should be of any significance in regard to the availability of visits, duration or the manner in which such visits may be conducted. I wonder whether, apart from the visitors, the inmates of prisons may as a result of this have body searches at any time of the day or night even if it is quite obvious that they may have been locked up in a cell since the previous search, or it is totally covered already? Is there not a danger of this sort of thing happening occasionally for reasons that we would not condone but that we might understand? With this more closely knit provision that is here now that would supersede or at least replace although not repeal the old three sections that were mentioned, can we have it from the Minister that visitors from a long distance will not find themselves at the prison having gone through the check to find that, as in one case I know of, the next visit for the particular member of the family is the 15th of next November? That happened last month, and these things do happen from time to time.

The Minister has in the past as a result of private representations to him cleared the way in certain respects. The Minister gave advice that anyone coming from a long distance should not come to the prison without first consulting with the governor's office or somebody in charge by phone to ensure that that sort of thing does not happen. Will the Minister take steps, now that he is getting this much more composite wider power of search of anybody at any time within the confines of the prison, whether they be staff, Defence Forces, Garda, visitors or prisoners, to see that that power will not be used other than in the absolute strict interests of security? Will the Minister make sure that the innocent visitor is not further punished by being intimidated by this sort of thing and if there is a certain amount of unavoidable intimidation because of the provisions and the closing of any gaps that were in previous provisions will the Minister make sure that disappointments, particularly for visitors from a distance do not arise at the prisons if at all possible? Surely there can be some way of having better communication between the prisons and the families of the inmates than perhaps has been obtained up to now.

I assure the Deputy that any searches that take place in our prisons are dictated only by security needs and the implication that unnecessary body searches take place is totally wrong and I reject it. It is a matter for the prisoners and their visitors whether they are prepared to keep the prison rules and not seek to escape. If they are, the entire situation can be looked at again. In relation to visitors coming and being disappointed, it is a matter for the visitor to communicate with the prisoner they wish to visit or with the prison authorities and find out how many visits are allowed, how often and for how long and on what days of the week. People come there seeking visits irrespective of prison rules, and I am afraid visits can be permitted only in accordance with the rules. That has to be the procedure and if people do not take the trouble to acquaint themselves with the rules, some people will be disappointed.

The Minister could tidy up the situation by simply deleting subsection (2) of section 32 of the 1939 Act. It seems to me that section 6 as it is now framed covers all eventualities and in particular as subsection (1) paragraph (a) refers to the position of a person who aids any prisoner in escaping or attempting to escape from lawful custody. Detention under section 32 subsection (1) of the 1939 Act would certainly be lawful custody and it seems to me to be quite clearly covered under section 6 of this Bill.

I will look at it on Report Stage.

Question put and agreed to.

I move amendment No. 4:

In page 5, subsection (1), to delete all the words in line 2 and in line 3 down to and including the word "questioned" and to substitute therefor the words "section 30 of the Offences Against the State Act, 1939 or section 2 of the Emergency Powers Act, 1976".

This amendment seeks to delete the words "any enactment for the time being in force under which persons may be arrested, kept in custody and questioned..." These words appear in lines two and three of this section, subsection (1). We propose to include in place of these words the words "section 30 of the Offences Against the State Act, 1939 or section 2 of the Emergency Powers Act, 1976." I understand the Minister to have said and, indeed, the explanatory memorandum says, that what is intended by this expression "any enactment for the time being in force under which persons may be arrested, kept in custody and questioned..." is the two sections to which I refer and which are included in our amendment. It is reasonably evident that that was probably the intention but it is by no means certain that a court would so interpret it.

It would have to because the three conditions under the section as drafted "arrested kept in custody and questioned" apply only to those two particular measures— the 1939 Act and the Emergency Powers Bill. I have no doubt that that is what is meant but if the Deputy wants to have it specifically written in, I will accept the amendment.

I am very much obliged to the Minister. We are making wonderful progress these days.

Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."

I want to welcome the clear indication given by the Minister. Undoubtedly, the explanatory memorandum as circulated by the Minister is quite explicit but I think quite properly these points were raised by Deputies on this side of the House as well, asking that the Bill should relate to section 30 and to the Emergency Powers Act, 1976. Therefore, I welcome the specific confinement as accepted by the Minister. It is one which certainly removes from our minds the initial misgivings we had, and it shows that the power of observation is not necessarily confined to the Opposition.

Go bhfóire Dia orainn.

Had the Deputy no misgivings about the Emergency Powers Bill?

The acceptance of the amendment by the Minister certainly tidies the whole thing up in no uncertain terms.

The section is, of course, greatly improved by the acceptance of our amendment.

It does not make the slightest difference to it.

It could be used against people arrested for drunken driving, petty theft, or a whole lot of other things.

It could not.

It could, but it cannot be now. I want to draw the Minister's attention to the fact that the maximum penalty under section 30 for failure to give a name, and so on, is six months. Section 30 is not repealed in the total sense. The Minister accepted our amendment on the last Bill to the effect that, while section 2 of the Emergency Powers Bill, 1976, was in force the powers under section 30 would not be exercisable. The effect of subsection (2) is to increase the penalty of six months for refusing to give one's name, be photographed, and so on, to five years and that makes the offence a much more serious one. It is a ten-fold increase in sentence. Section 30 in the past has not been regarded as a section under which a substantial crime is committed but a similar crime under this section will carry a five-year penalty which makes the crime a very serious one indeed with a very, very, serious penalty. This may not have been intended but anyone who is in custody under section 30 and offends against any of the sub-clauses (a) to (f) will be liable to a term of imprisonment for five years. If someone refuses to give his name or gives a wrong name is that such a serious offence that he should get five years for that alone?

I disagree with the Deputy when he says this was never a substantial offence. It always was and the penalties provided for obstruction in the 1939 Act were surprisingly small. Having regard to the powers which can now be exercised, particularly those with regard to the taking of swabs to enable modern technology to be used, obstruction could be extremely serious because modern technology could lead to the prevention or the detection of serious crime and obstruction which might inhibit that very desirable result must, therefore, be a serious matter. It is very important that there would be a large penalty to deter people from obstructing the Garda in the making of tests having regard to the vital importance of such tests. I think it is right the penalty should be increased and increased substantially.

There may be certain instances where a heavy penalty might not be inappropriate but they would be limited. Usually this section would be used where someone is brought in, asked his name and address and searched, or has his fingerprints taken. If he objected to his fingerprints being taken or to one of the other things that could be done to him under this section, unless he had some very nefarious purpose in not co-operating, five years is a very severe penalty.

I think the Deputy is overlooking the fact that there are two methods by which proceedings may be taken against him. He may be proceeded against summarily, when he can be fined or imprisoned, or he may be proceeded against on indictment. It is when the latter course is adopted the five years maximum applies. Again, it will be for the court, on hearing the prosecution and the defence, to decide the penalty appropriate to the crime. It does not follow that, because he refused to have his fingerprints taken, he will be sentenced to five years imprisonment. He may get a substantial sentence, depending on how the court regards the particular offence. It is only right in a matter so important as this that obstruction in the course of investigation should be marked seriously.

The Minister should explain what is involved in the three procedures set out in subsection (1):

make or cause to be made any test designed for the purpose of ascertaining whether he has been in contact with any firearm (within the meaning of the Firearms Acts, 1925 to 1971) or with any explosive substance (within the meaning of the Explosive Substances Act, 1883) and for that purpose take swabs from his skin or samples of his hair:

This sounds potentially pretty gruesome. Would the Minister explain exactly what it involves.

Nothing beyond what is stated can be done.

Could one also ask as an extension of that if, in fact, a medical officer would be present?

Not necessarily. What is involved here is not a medical operation. A swab from the skin does not mean taking actual skin. It means the skin would be rubbed with some sort of chemical substance. There would be no interference with the physical integrity of the person. A sample of hair would not be a very onerous requirement. There may have to be tests on clothing. Clothing might have to be sent for examination or there might be other chemical tests designed to discover if a person has been in contact with explosives. I am not au fait with the scientific details but I certainly know it is not necessary to remove the actual skin. Taking a swab is a common enough procedure and a quite painless one.

This is a very sensitive area. Our Garda have power to interfere with the person of the citizen. It is a very important power we are conferring on them here.

If I might amplify what I said, possibly I did not make it clear, a scientific test of that nature would be carried out by people with scientific training, forensic scientists or perhaps medical people. It would not be the Garda who would be undertaking these scientific tests.

Did the Minister say forensic experts?

I accept that. I accept also that this power has, to a large extent, been there since 1939; we have all lived with it. I want to ask the Minister this question, the answer to which I should know but do not: is there some general stipulation that the Garda, when exercising any of these powers, must only use the degree of force called for by the situation? I have a feeling that there is such an omnibus provision somewhere. If there is, it would be very important that we should advert to it because this is a sensitive area. If members of the Garda are given this power we should all like to be assured that they would use only the degree of physical force necessary on any occasion involved in their procuring the particular result they are seeking. Perhaps the Minister would say whether or not there is such a general provision.

There would be—I would just have to search my mind for a moment—as a matter of law. As a general legal proposition there would have to be such a provision because it would be unlawful to use an amount of force that would be excessive; it would then become an assault. The section gives power to "take, or cause to be taken". Once that power is given it has to be assumed that, in its exercise, no more force would be used than was reasonably necessary to carry out the power. There is a general, overriding legal requirement that force, more than is strictly necessary, becomes unlawful and an offence is thereby committed.

An offence or a right to civil action?

Also an offence because assault is a criminal offence as well as giving rise to civil action. Therefore, the rights to implement these powers carry with them the corresponding duty to exercise them reasonably and with only sufficient force as is necessary to exercise them. Therefore, there is the overriding legal constraint that, in exercising any of our rights, we can only do so lawfully and to use more force than would be necessary would be to act unlawfully.

May I take it from the Minister that subsection (1) will now read:

Where a person is in custody under the provisions of section 30 of the Offences Against the State Act, 1939 or section 2 of the Emergency Powers Act, 1976, a member of the Garda Síochána may do all or any of the following in respect of him.

That is right.

The matters of demanding the name and address, searching or causing to be searched are probably time-worn practices.

(c) photograph him or cause him to be photographed;

Of course, we should remember that it can be him or her in all these cases.

(d) take, or cause to be taken, his fingerprints and palm prints;

(e) make or cause to be made any test designed for the purpose of ascertaining whether he——

or she——

has been in contact with any firearm...

It might help the Deputy if I tell him that, by virtue of the Interpretation Act, the use of the male gender always imports the female gender.

I am merely reading it in because that is what it means.

There is no need to read it in. It cannot mean anything else.

It is just as well to have it quite clear that this does mean male or female. The subsection also says:

...or with any explosive substance (within the meaning of the Explosive Substances Act, 1883) and for that purpose take swabs from his skin or samples of his hair;

(f) seize and retain for testing anything that he has in his possession.

(a) and (b), yes; from (c) right down to (f), No. I say "No" to those for the very good reason that, where a person is in custody, is not guilty, has not been charged or had anything proved against him—therefore working on the assumption that a person is innocent until proved guilty, which, of course, is becoming a rather forgotten aspect of our way of life up to now—I contend that this photographing and causing to be photographed is wrong until such time as the person may have been found to be guilty and detained as a result of some charge or other having been proved. The taking of fingerprints and palm prints should not be insisted upon and should not be provided for unless and until a person in custody has been put there as a result of a charge proven.

With regard to the making and taking of tests designed for the purpose of ascertaining whether a person has been in contact with any firearm or explosives, which covers a very wide range, and for that purpose the taking of swabs from his skin, the Minister amazed me by saying that he was not terribly well up on all of what it means. He should have informed himself in this respect because it is he who is carrying the can in so far as putting this Bill through the House is concerned. With no reflection on the Minister, surely it is the duty of a promoting Minister of any legislation not only to satisfy himself as to what it means but to inform and educate the House and, therefore, the public, what is involved right down to the scientific, medical, or whatever type of jargon used. It should be recorded here whether he understood it fully, or we, as a result of his having related it to us. Small use it would be at a later stage to hear that a Minister and we, in all innocence, had passed something the inner details of which we did not understand.

The actual methods of doing any or all of the testing or swabbing implied in this may or may not be onerous. We do not know but we should know. It is not good enough that the Minister should come in here unarmed, not being in a position to inform the House about what he is asking us to consider, never mind pass. In the terms of the reply I thought I heard him give it would not necessarily mean that some medical person would have to be available. That is rather disturbing considering that the Minister followed that up by saying that he did not quite understand fully what might be involved but that he did not think it was onerous and so on. It may be.

This is coming back to where I interjected "she" as well as "he" even though we are supposed to read and understand it as applying to both. Females in custody who are not charged or proven guilty will be subject to all these tests without a medical doctor in attendance. Neither is there any indication that the tests will be carried out by female prison staff and it still remains a question whether they will be medically qualified. I should like the Minister to give us details of the testing. If he is not in a position to do this at the moment, perhaps he would take the trouble to become fully informed about the matter before the final Stages?

At the outset of this debate the Minister referred to "anyone in custody for any reason" but that is gone now. However, it does not take away from the fact that under these two enactments, in the Act of 1939 and in this proposed legislation, there is an extremely wide area where people may find themselves in custody. Will the Minister state if this involves persons in custody as a result of the operation of the 48-hour period plus the five days' detention covered in the measure we passed last week? If it involves all those who might come under that umbrella, the demands listed here, apart from the name and address, and perhaps the searching for the purpose of immediate security, are a total and complete invasion of the privacy of the individual. It could bring about a situation where there would be the most extraordinary array in a rogues' gallery for posterity. That would be wrong for two reasons. First, it would be wrong to the persons concerned who were innocent and, secondly, it would only add to the confusion.

Will there be copyright attaching to these photographs of people who may be pulled in under section 30 of the 1939 Act or section 2 of this measure? If there will not be any conpyright, will there be an assurance that such photographs and pictures will not be used for any purpose other than that of immediate concern to the prosecution that, presumably, will follow? If there are no charges, will the photographs—which should never have been taken—be returned together with the negatives to the offended person who was taken into custody? This may sound facetious but it is not so. I take the most strong objection to any police force in any country pulling in any person on something that does not stand up, with no charge sustainable, as I take the strongest objection to a situation where a person may be obliged at the dictates of the State, through the agency of the Garda Síochána, to leave behind photographs, finger prints, palm prints, swabs and so on.

Perhaps I should explain to the Deputy that these items of information would be part of Garda records——

I cannot hear the Minister. I have complained about this on other occasions.

Any information got on this on foot of these inquiries would be part of Garda records and, consequently, any documents would be subject to the Official Secrets Act. There is no question of their being disclosed other than in accordance with that Act. Information got under these procedures could be—I would go so far as to say has been—of vital importance in solving crimes, perhaps not at the time but a year afterwards.

This is the objectionable feature. To follow that argument through, why not have the entire population from the cradle to the grave photographed, finger printed, palm printed and swabbed for posterity in case this may be of help in the future in the solving of a crimes I have no doubt that it would be of help but the question is, does the likelihood of the benefit deriving from that kind of operation justify the perpetration on the individual of what is proposed here, even though the people are innocent?

The short answer to the Deputy's question regarding exercising these powers on the entire population is that these powers are only exercised in relation to persons who have been arrested by a garda who suspects that person has committed, is about to commit or has been concerned in the commission of an offence, or whatever is the more modern wording in the Emergency Powers Bill. It is not a question that these are people picked up at random. They are people arrested in very specific circumstances where there is reasonable cause for suspecting that they have been involved in terrorist type offences.

That is fair enough as far as it goes. It is a fair reason why there should be a division between those who have not been brought into custody and those who have. I say there are even more compelling reasons why those who have been brought into custody, who are subsequently found innocent, with not a shred of evidence to be found against them, why that category should also be removed from the obligation of having photographs on record for all time. This has been justified by the Minister on the basis that they were brought in under these enactments, that this is their hard luck. This is what we have been complaining about. No matter how well meant these powers are a large number of people will be brought in but found to be not guilty of any chargeable offence but they will have suffered the hardship, the indignity and the inconvenience of their being detained for two days or for seven days as the case may be. Why should there be visited on those people while in custody the provisions of paragraphs (c), (d) and (e) of subsection (1) of section 7? They will already have suffered the loss of their liberty for a period of up to seven days, that is, within the framework of what is here but not taking into account the possibility of what could happen. Surely if they are innocent of any offence under any of the Acts concerned it is adding insult to injury to say to them that because they were brought in at all they are to be treated differently from the rest of the population and that they must be photographed, palm printed and recorded for all time. As a legal man, the Minister must find it very difficult to attempt to sustain such provision.

In circumstances in which a person is found to be innocent there should be no record kept. This legislation can only have a bad effect because the fact that these innocent people are recorded puts them in the rogues' gallery for all time. Therefore, the legislation can only be counter-productive and detrimental to the observance of law and order in the future not only in respect of these extraordinary powers but in all respects. It can only tend to bring into contempt the whole idea of law to treat innocent people in this way when we know that at large among the general public are people who, if they were brought in, could be found to be guilty in so far as certain offences are concerned. These are the people who, in the interest of State security for the future could usefully be taken in, charged, convicted and then recorded.

There is the Minister's admission that the cradle to the grave regard is some sort of tag. Such tag is tantamount to tying a card to a person's ears or toes and the fact that it will be used only in respect of persons detained under the provisions before us in no way justifies it. How can the State be justified in doing those things to people when by being unable to show any cause to charge them they are lumped with people who had been found guilty, recorded and their case histories filed away for the curiosity seekers of future years? Such records would be of no value since they would show nothing, unlike, for instance, the person who is discharged from a mental institution and of whom it can be said has proved he is entitled to be out. The same applies to the measure before us. Those who will be detained but released without being charged with any offence can say that they are the only members of the population who are not guilty of offences. Despite this their records are to be filed away for all time.

I am sorry to interrupt the Deputy but he seems to be repeating some of the statements he has made already.

Hear, hear. I have got the Deputy's point several times.

I agree that there is a certain amount of repetition in my contribution but in latter years I have often advised my younger colleagues never to be reluctant to repeat something that is worth saying, regardless of how often it has been said already. Perhaps I am taking my own advice too literally. I apologise for that and shall attempt to refrain from repetition regardless of how worthy it may be. No doubt the Minister who, in the past, has shown himself to be very sensitive to the rights of the individual, particularly during his relatively short time in this House, is not sleeping very well those nights but is lying awake thinking of what these measures involve.

The difficulty is to stay awake here.

I commend it to the Minister during his sleepless hours in the night for his kindest consideration so that I will not be forced at a later stage to repeat what I have said now. Subsection (2) states:

Any person who obstructs or attempts to obstruct any member of the Garda Síochána or any other person acting under the powers conferred by subsection (1) of this section, or who fails or refuses to give his name and address when demanded, or gives a name or address which is false or misleading, shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

There we can conceive a situation wherein a person is in custody on the say-so of a garda who suspected "with reasonable cause" that that person may have been involved in the commission of an offence or that he had knowledge of the commission of an offence or that it was intended to commit an offence or any of the rest of the jazz we had in the Emergency Powers Bill. Can anybody justify that sort of treatment being visited on that sort of person who may be totally innocent of any of the suspected matters but who may be held for seven days during which photographs and finger and palm prints and swabs can be taken? Is there anybody here who would not object violently to that intimidatory treatment?

These demands in this section are not only completely unnecessary but they are useless. Yet if such a person objects to any of these procedures he or she will be liable to this intimidatory fine of £500, or 12 months inprisonment or both, or on indictment to a sentence not exceeding five years. The photographs and other records cannot be of any value to the State now or at any time in the future. The Government say this legislation is necessary to safeguard the rights of the community. Is this kind of intimidatory procedure safe-guarding the rights of individuals, this intimidation by the Establishment which will now reach a degree that it can be regarded as Establishment violence? Is it not around the most recent violence in the Six Counties that we have built our reasons for bringing along this repressive paraphernalia? This can only be wrong and the Minister is well aware of it. It far outreaches what the Minister and the Government set out to do. They are overplaying their hand and this will be the cause of defeating anything they had hoped to attain by these extraordinary measures.

The Minister has this week given the so-called concession of accepting amendments which he would not have dreamt of accepting last week. Much more is needed in face of the discontent of a large section of our people if this discontent is not to grow. We have all too much of this "no surrender" in another part of our country. We are doing the Minister a favour when we try to induce him to make changes. We are doing a favour to the Minister and the Government, not for the love of them but for the purpose of trying to alleviate and minimise the impact of this unnecessary, repressive legislation. This is the type of exercise we are engaged on through the Government's operations at the moment. If there has been some success as a result of some underground subversive movements by the supporters of the Government over the past couple of weeks, when supporters of those representatives here in the House began to——

The Deputy should keep to the section we are on.

A good idea.

If it were not out of order I would love to go back on some of the other sections for the edification and education of the missing Deputies who have now appeared. They are better than the vast majority of their colleagues who have not appeared at all. I am sorry if I have digressed from the section but it is so far-reaching that one can envisage the most outlandish situations. The Leas-Cheann Comhairle may be driving home next week or the week after when this legislation is in operation, and if a garda suspects with reasonable cause that this personage whom he may or may not know by sight has some knowledge of the commission or the intended commission of an offence he could be taken in legally and detained for a number of hours. His name could be demanded. He could be searched and photographed, finger printed, palm printed and tested. I do not know whether they will carry out TB testing and brucellosis testing.

Will there be lay technicians?

We will have to wait for the Minister for Agriculture and Fisheries to inform us about that. Then we will have to consult with the IVU and, no doubt, the farming organisations.

The Deputy must keep to the Bill.

That can be done under the Marts Act.

The Marts Bill was capable of being challenged successfully in the courts under our Constitution. These provisions cannot be challenged anywhere because we were muzzled before we started. The people who complained about the Marts Bill are now reaping the benefit of it, so much so that if one is for sale anywhere they are trying to buy it to try to make a few bob out of it.

We are a constitutional party, not a slightly constitutional party.

Deputy Blaney on the Bill.

They can take the piece of the Constitution which has been covered up here and keep it in their pockets until this has been declared null and void at some future date.

Is it the 1937 Constitution?

These interruptions are leading the House astray.

If the Deputy wants to go back further, I am in the humour for that.

The Chair is asking the Deputy not to do that.

I have been a long time here and Deputies know I can be provoked. To get back to what I was saying, the person who has the honour to be the Leas-Cheann Comhairle of this House could be lifted on his way home next week and taken in and finger-printed, swabbed and photographed. If he refuses to co-operate, as I would expect him to refuse knowing that he was innocent, he will have committed an offence for which he can be nailed. He will be in the rogues' gallery for the rest of his life and long after he has gone.

That is what the Government are doing, and that is what the people who are supporting the Government are doing, although they may not know it because they spent very little time in the House during the course of these proceedings. I would laugh if some of them were picked up in those circumstances and were put in the rogues' gallery even though they were totally innocent. Better still, perhaps, they would refuse to cooperate and they would be nailed for £500 and a year in jail. That would change their minds about supporting the lot in front of them. There are smiles over there now but there will be smiles over here if that happens, and stranger things have happened.

Why should a person who is taken in and ultimately released as innocent be liable to a fine of £500? Despite the depreciation in the value of money that is still a considerable amount. Even in these days of escalating costs and depreciation in the value of money, £500 is still a considerable amount.

The Deputy is repeating what he has already said.

I did not think I had dealt with the money part of it. When the late Frank Fahy was Ceann Comhairle he said that if the Chair said it was ten minutes to 11 o'clock it was that time. I never forgot that. I commend it to newcomers to the House and the not so newcomers. I suppose it is hard to expect them to accept that if it is only five past ten o'clock and he says it is ten past, it is ten past. This happened to me long years ago. There was a difference of only two minutes between us but it was there and I never forgot it.

This sounds like Alice in Wonderland.

Alice left Wonderland a long time ago. Is there any parallel for the penalty of five years for refusing to give your name to a garda in our existing law outside the enactments of 1939, 1972 and 1976? Is there anything in the existing laws whereby five years' imprisonment can be visited upon a person who is innocent of what he is being questioned about but refuses to give his name or gives it incorrectly for any reason, maybe for a joke or because he has had a few drinks? Is there anywhere in existing law where such a term of imprisonment can be imposed upon a person for simply remaining silent? We all know that the people in rural areas take it hard when a guard asks them for their name and address particularly when they are well acquainted with that guard. Although he is entitled to ask them for a name and address they, because of their acquaintance with the guard, think he is having them on. Such people may not give their name and address because they know the guard is in possession of that information. I would be amazed if the Minister could quote any law that imposes such a prison term on such a person who refuses to give that information. Is there any provision that has a tag of £500 for failure to give that information, one year in jail or both? I do not believe there is.

I have heard of Deputies who did not know their own address on occasions. I do not mean any disrespect; in fact it is one of the best stories I have heard about the House for a long time. The occasion I am speaking of did not occur yesterday so that it is not news but such a thing can happen. On occasions people do not give their name or address because they feel the guard knows that information already. The name and address requirement is not a very objectionable practice and people are more understanding of it. They know that the guard is required by the dictates of his own boss to seek this information even though he may know the person concerned very well.

While the provision for search or causing to be searched is irksome in certain circumstances it is not all that objectionable if it is done in a reasonable way. While the searching of a person and the demanding of the name and address of that person are acceptable how can one blame anybody who refuses to be photographed? Heavy sentences are handed out to persons who refuse.

I am sure the Deputy appreciates that he is going back again on what he has already repeated.

I am attempting to relate the exceedingly provocative and irritating circumstances in which under these special powers of 1939 and 1976 innocent persons may be pulled in, deprived of their liberty and, having added the insult to the injury of demanding photographs, fingerprints and tests are, if they refuse, guilty persons though they were innocent when taken in. As a result of the system they are guilty and are liable to severe penalties.

I am sure the Deputy will agree that he has already repeated that.

Not in that context. By this system we will be making innocent persons guilty and if they do not conform to the system they become convicts in their own right.

Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Wednesday, 15th September, 1976.