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Dáil Éireann debate -
Wednesday, 15 Sep 1976

Vol. 292 No. 9

Criminal Law Bill, 1976: Fifth Stage.

Question proposed: "That the Bill do now pass."

I reserve my right to speak.

What Stage are we on?

We are on the Fifth Stage of the Bill now. Comment is confined to what is in the Bill.

As far as the Bill is concerned, I understand from the lack of reaction from either side that the last amendment was accepted and in so far as it is an indication of some sanity returning to the Minister perhaps it is to be welcomed. At the same time we should keep in mind that the agreement to this amendment of having the new subsection inserted into the Bill should not make us overjoyed on this score although it is an indication of some sanity returning to the Minister and his colleagues. According to the last amendment, section 15 will cease to operate as soon as the Emergency Powers Act is declared to be no longer in force. That Act can, of course, continue in force by way of ministerial order and we ought not, therefore, to be too elated by the Minister's acceptance of the amendment. Indeed, it is being accepted by the Minister not so much in the spirit as in the letter and this may well be indicative of the intention to continue the Emergency Powers Act by order in which situation the new subsection will be a non-event.

The objections to this Bill are no less now than they were originally. The amendments made by the Minister, either on his own initiative or at the instigation of the Opposition, have not removed the objectionable features. I shall not go into these since they have already been well and truly recorded but I would like to emphasise the principal objections to a Bill which will be part and parcel of the daily lives of our people so long as it remains upon the Statute Book. The penalties of ten and 20 years are as objectionable now as they were originally. Section 2 provides for these increased penalties. The increase in money fines, while regrettable, is understandable and reflects in all probability the depreciation in the value of money. The addition of years, from two to 20, from one to seven and from two to 15, is highly objectionable. It is indeed unrealistic. A life sentence for premeditated murder generally works out at about seven years. Many of these offences will carry a penalty of 20 years.

While the Minister would be the first to jump in in defence of the impartiality of the Judiciary, nevertheless in some of his contributions he made it quite clear that he is more or less attempting to cajole the Judiciary into looking at the 20 years as the intention of the Oireachtas so that they will step up the period to what he would regard as realistic sentences in respect of offences which up to now only carried a sentence of two years. He was critical of the Judiciary because they did not apply the maximum sentence. Indeed, he believed two years was too little and so he made it 20 years to induce the Judiciary to come to their senses and inflict sentences of ten, 12, 14 or 20 years where at the moment they would be 18 months or a maximum of two years. This is a ridiculous way to legislate. I am not making this up. It is there for all to see and understand that this is the intention of the Minister in order to make the Judiciary do their job in the way in which the Minister would like them to do it. This is wrong.

Section 3 is no more acceptable now than it was originally despite having been amended. The news media are still in the situation in which they will have to study the ground, as it were, to find out whether they may or may not be caught under the section. The intimidation is still there. Even in its present form the section is patently intimidatory. The effect will be no different from what it would have been had the section remained unamended.

Section 4 deals with closing orders. I was not here when this section was being discussed. I am not sure if anything worthwhile was said or whether the Minister advanced any justification for it. It seems extraordinary that these closing orders should be extended to the point at which buildings may be closed for three years. I do not see how such a closure can be justified. I do not understand what useful purpose such an order will serve. I can only take it that the hope is that somebody or other will suffer through loss of the use of the building or a possible income from it. To me, this does not make sense.

Section 5 deals with searches. A great deal has been said but nothing has been done to rid this section of its most objectionable features. Regardless of the termination of the phoney emergency this will remain, no doubt as a monument to the Minister, a monument I feel he may not be all that keen to claim credit for in the future. We are stuck now with this and there is nothing we can do about it at this stage.

Section 6 deals with escape from custody. I take it the sentences proposed here are proposed for the same reason as the other extraordinary penalties have been proposed, that they will be a guide to erring judges to be a little harder on these things than they might otherwise be. It is a reflection on the wisdom of the Judiciary. The Minister would be the first person to uphold their worth. In these successive sections we have these exaggerated periods of detention and conviction by way of penalty not because we expect them to be applied but because of their exaggerated length in the Minister's estimation there will be a realistic sentence imposed. These exaggerated figures will be used to con the Judiciary into believing they should take note of our intentions here and that if we stated our real intentions it would not be sufficient to get them to move far enough ahead.

Section 7 is there in all its glory. The only thing one can say about it is that it is without doubt a permanent feature of our criminal law. The manner in which it can be applied to the general public is undoubtedly a denial of their rights not on any temporary basis or during an emergency period but as part and parcel of our permanent criminal law. Therefore, we regard this section as the one which really hits at the rights of the individual and no amount of attempted justification by the Minister or any other Government spokesman can take away from that fact. While in custody persons may be photographed, fingerprints and palm prints taken and other tests can be carried out.

Let me get back to the real denial of public rights and the imposition by way of law on freedom. Anyone who is in custody under section 30 of the 1939 Act or section 2 of the 1976 Act, even if entirely innocent, will, first of all, suffer the 48 hours detention—incommunicado no doubt —followed possibly by another five days of light sort of treatment. If at the end of that period no charge is preferred against him he is, according to the law, entitled to be released. But during the time it took to ascertain that no charge could be made against him his rights have been further infringed; in addition to the injury of his detention, there is the further insistence on his being photographed. Fingerprints and palm prints are taken and various other undefined tests made upon his person to be kept on the record for what time we do not know but it will certainly be kept there until after he has passed on.

We have been given to understand by the Minister that this interference with innocent members of the public and the recording of all of those things thereafter are in the interests of aiding detection of some future crime. This is the most repugnant part of all that has been discussed in relation to this Bill. It will stand as something by which the Minister will be measured in the future no matter where he may be speaking about the public and its well-being, society and its well-being. There is no reason on God's earth why we should have those tests following the detention of an innocent person, and that they should be recorded thereafter and put in the rogues' gallery for the rest of time. This is altogether wrong. It is unjustified and unnecessary and will serve no useful purpose in the future. It certainly will serve no useful purpose in regard to the time I am speaking about as the person concerned will be innocent.

I defy the Minister, the Government, their supporters here and elsewhere to justify what is proposed to be done under this section to people who are found without stain and without any charge capable of being made against them. No doubt the Minister will be quite happy that he has by weight of numbers pushed this section through the House. A whole series of offences are outlined in subsection (1) of section 8, not all of which are tied to the so-called national emergency nor are they confined solely to the Act of 1939, the 1976 Act, or even to the Criminal Law (Jurisdiction) Act, 1976. There is a whole litany there to be read without a doubt unnecessarily inserted to lend an aura of urgency and necessity to the pseudo-emergency. In that way they do not stand out as startingly repugnant as they would had they been introduced three or four months' ago before there was any attempt to declare an emergency or three or four months hence after the declaration of this phoney emergency.

The section with which we have just recently dealt stands out above all others in that it confers on the Defence Forces powers they were never intended to operate other than as an aid to the civil power, which they have been giving for a considerable time past at the request of the Garda. When this Bill is enacted they will be obliged to become what they never were, which they are not and have no wish to be, namely, an armed police force. We are introducing here an armed police force by bringing the Army into the realm of police work. Over the years we have heard of forces elsewhere of a para-military nature being used in a similar fashion. We know what happened as a result of the continuance of that type of operation. The Bill uses the word "conferring" but we are really condemning members of the Defence Forces to operate the provisions of this Bill. One would think we were doing them some honour when we use the word "conferring" in the first line in section 15.

I wonder if we have had any regard to the total cost of the performance? The Dáil and Seanad were recalled, the staff had to be available, but yet we are not able in these stringent times to pay overtime to the Garda. We are making the Army carry out work for which they were not prepared or trained and which they have no desire to do. Neither are the Garda anxious to have their job extended to the Defence Forces. The dislike of both forces for this new role for the Army is a mutual one.

The Ministers for Justice and Defence must be living in cuckooland if they are not aware of the imposition this will be on the long-suffering people in the Border areas. It is obvious that the Army will be armed and in the coming winter months there will be an operation no less intimidating on the southern side of the Border than what we have been experiencing on the northern side. This is a matter the Ministers concerned should have reconsidered. We are being bludgeoned by the sheer intimidation of the British Army and there is no doubt that our Army will be forced into a situation where their activities will be no less intimidating than are the activities of the occupying army in the Six Counties. This will be inevitable in their policing of the Border and the checkpoints that will be set up.

The Army, in a penny-pinching way, are being pushed into an ever-widening role of Garda activity. I suppose this will continue until there is an even more stringent ban on overtime for the Garda Síochána. Army personnel will be used to do the work of the Garda Síochána but up to now they have not been recompensed by way of overtime and I presume there is no intention of putting them on an equivalent footing with the Garda Síochána who have been receiving overtime for this kind of duty. The real answer may be that this is a method of having more Garda activity on the cheap but if that is any part of the Government's thinking the price we will have to pay in other ways will outweigh any saving.

It was pointed out tonight that the Garda have been restrained from cordoning off certain towns and villages after a bomb explosion. They have been intimidated in a way—they have been told to cordon off the area but not if it would involve payment of overtime. Is that the stage we have reached? It appears the Ministers for Justice and Defence have got things mixed up. There is a need for more gardaí but there are plenty of highly suitable applicants who are at present unemployed. There are more than sufficient to increase the strength of the Garda force but this is not being done. On the other hand, the Army has increased its numbers and has got better equipment. Apart from those assigned to special duties along the Border, ordinary policing activities by the Garda have come to a standstill. The Minister for Justice is aware of this, as are the members of the Garda Síochána. It is regrettable that the personnel strength in the wrong force was increased while the other is so short of manpower that we propose to convert our Army into an armed police force with all the dangerous consequences that may flow from it and with the dissatisfaction that must exist in the ranks. It must add to the frustration of the Garda Síochána who had been endeavouring to cover their additional assignments while trying, but failing through no fault of their own, to keep up with normal police work. This has been accelerated by a clamp-down on overtime that formerly was paid in a more liberal way.

It is a blot on the activities of this House that we unnecessarily declared an emergency, which is a pseudo emergency, so as to make possible the introduction of this package of which the Emergency Powers and this Bill are a part. Enough has been said already to illustrate how unnecessary was that Bill and no doubt the future will prove even more how unnecessary it is. The package concludes with the Bill which we are now about to finalise. Despite all the arguments, some reasoned, some not so reasoned, put forward in relation to it, the Bill is going through in practically the same form in which it was introduced. This is happening despite the unrest in the Labour Party and also among some members of the Fine Gael back benches. However, they are following their Leader and no doubt are prepared to vote the Bill through. Obviously, the Labour Party have suffered excruciating agony in wrestling with their consciences during the past few weeks. Perhaps it is in a sense a great relief to Labour to know that after tonight such wrestling is no longer of any avail.

I am sorry to interrupt the Deputy but, clearly, he is straying from the subject matter of the Bill and that is what the debate is limited to at this stage.

If so, it is the first time that I have strayed from it. I have been endeavouring to keep closely within the confines of the measure despite the fact that it is only part of a package. The Labour Party have enough problems on their hands without my adding to their troubles. I apologise to them if, during my contributions, I have been responsible for stretching the time of their agony longer than might otherwise have been the case. Perhaps, though, this will have due effect in time.

Lumped with the Emergency Powers Bill and with the declaration of a so-called emergency, this Bill will be seen to be a blot on the operations of this House. We shall live to regret putting through this measure in the vacuum of the other two but we shall regret even more putting through a measure which involves putting on our streets and roads an armed police force which in effect will be the result of the various sections dealing with the Defence Forces. I trust sincerely that, apart from being a blot on the activities of both Houses, the damage that will be caused by this package will not prove to be irreparable in the sense that no amount of repealing or of declaring the so-called emergency to be ended can undo. Regardless of whether this package is merely a subterfuge for the purpose of drawing attention from our real emergency— the emergency in relation to our economy—it is not justified in any sense.

I urge the Government that having put those measures through, to go to the country. I have no doubt as to the answer they would get from the people because the people will not stand for measures such as these being effected in their name.

At this late stage I shall be very brief so as to avoid repetition. When these measures were being mooted the Leader of this party on the first day on which the Dáil was recalled indicated clearly and without qualification the views of Fianna Fáil on this Bill and their approach to it. During the course of the debate we have voiced our criticisms in as fair and as forthright a way as possible. We said that certain sections of the Bill were objectionable to us and we gave the reasons for these objections. We had difficulty in relation to the definition section and we endeavoured in so far as possible to urge the Minister to see our point of view in regard to illegal organisations.

In so far as section 3 is concerned it is fair to say that most of our objections were met. We went on then to section 7 where, again, reason prevailed. The next stumbling block so far as this party were concerned was in respect of section 15 which dealt with the giving of power to the Defence Forces to arrest and search in certain circumstances. We opposed that section in toto. We opposed it for reasons that were honest and sincere. Since these reasons are on the record of the House it is not necessary for me to repeat them.

This Parliament has made a decision regarding that section and that is that it will remain in the Bill. On Report Stage the Government went a little way towards helping us to live with the section: since it will be part of our legislation we will be bound to see to it that it is respected and honoured.

After three long and arduous weeks of intensive debate on legislation that we have teased out line by line, indeed word by word, I shall not endeavour at this stage to make any political point but merely say that we are not opposing the passing of the Bill. In relation to our objections I shall be honest enough to admit that more have been met than have not been met. On behalf of my party I wish to place it on the record that we are not voting against the Bill.

I wish to follow the previous speakers and be brief, and that includes Deputy Blaney, because proportionately to his previous speeches, Deputy Blaney was quite brief. I welcome the Opposition's support in principle and I am glad to know that the Final Stage is not being opposed.

We have had a very thorough debate on the Bill, as Deputy Collins has said. It has been teased out line by line, and that is what the parliamentary process is all about. There was an element of surprise and, from some quarters of the Opposition, traces of triumphalism—I am not saying Deputy Collins was guilty of it— when the amendments were met, and this showed misunderstanding of the parliamentary process. The process of debate is to expose the sections in their full meanings and, in the light of the view then available, to decide whether proposed amendments improve the Bill or not.

I indicated early in a television interview that I would consider reasonable amendments and I qualified that by saying that amendments, to be reasonable, would have to be such that they would not take from the principle of the Bill or weaken the legislation that I was proposing. I said in that connection that the principles were inviolate and this is the point the Minister for Defence made and which was represented as being a different standpoint from mine. In essence there was no difference between our points of view.

It would be wrong if a Minister proposing legislation said he would not consider any amendments. That would be an abuse of Parliament. Naturally, proposing a Bill as serious as this, one which had the consideration which the Government gave to this Bill and indeed to the whole package which has gone through this House, it would not be possible to give in on the principles enshrined in the legislation. I want to make that very clear and to put it in proper perspective.

The matters which caused most controversy were in sections 3 and 15. When I was dealing with section 3 in Committee I said the comments made on it outside the House had been extravagant. I refrained from using the word "hysterical", but in retrospect I think that would have been a more apt adjective to have used to describe the reaction to it.

There was no hysteria here.

I did not say in the House. Outside the House the comments from some quarters were hysterical and unjustified. As I explained when dealing with that section, the offence of incitement has always been with us as a common law offence, and essentially what was being done in section 3 was to state that offence in statutory form, using the form of words relevant to the present context. Whom we want to get at are those who recruit or assist in the activities of an unlawful organisation, who incite support for an unlawful organisation. "Inciting", in law, has the meaning of the ordinary dictionary usage of the word—to urge support for, or to encourage, all these things. I felt it was important that this should be restated in specific form in the statute.

The offence of incitement, like any other offence known to our law, can be committed only by somebody doing it expressly, and that was one of the expressions objected to. If it is not done expressly it must be done by implication. That was another phrase objected to. Incitement has to be committed verbally, or by written document, or by propaganda, or by advertisements. It can be done in all of these ways and these words have now been removed from the Bill. But that does not remove them from the law of the land. Incitement still can be committed in any of these ways. This is an indication that the reaction to this section was hysterical in the sense that it was not based on a realistic appraisal or assessment of the legal situation. Perhaps I am at fault for not having explained earlier what the legal situation is.

It is probably the fault of The Washington Post.

It could well be, but the essence of what we wanted to get at is retained in the section. There is one way in which the section differs from the existing law in regard to incitement and that is that it has been broadened to cover the person, for instance, shaking the collection boxes with the words on it "Support the IRA". That is an example of how support for the IRA could be sought and now it will come within the ambit of this section.

It does not entail a lot of imagination to consider how in other ways the offence in that regard could be committed, and of course all citizens, irrespective of their vocations in life, now have an obligation to pay attention to this section as passed in its amended form, because the effect of the section has not been impaired. The constraints it imposes on all citizens to be careful not to offend against it by inciting or inviting support for an unlawful activity or inviting or inciting persons to take part in, support or assist activities, are there.

"Activities" is an important word to remember. "Objectives" is to be distinguished from "activities". The fact that an unlawful organisation can have objectives which may be shared in more or less similar form by a perfectly lawful organisation does not mean that to make reference in support of that objective willy-nilly brings a person into conflict with the section. The section is opposed to supporting activities, not to supporting objectives.

As I have said, I am satisfied with the amendment. What we had hoped to achieve in that section I hope we can still achieve.

The other section which caused most controversy was section 15 which in a very limited way gives certain Garda powers to the Army. It was debated on its merits until the Report Stage when Deputy O'Malley raised the red herring argument that what was behind the section was an intention by the Government to cut down on Garda overtime—that it was a move to try to take the gardaí out of certain parts of the country, replace them by the Army and thereby save the Exchequer. That was not a real argument and I do not think it was put forward seriously by the Opposition. If it had been seriously meant I have no doubt that the spokesman would have advanced it when we were dealing with the section in Committee when it was debated in detail and at great length. Indeed the point was not made by Deputy Blaney, who kept a very careful Skibbereen Eagleish eye on the whole proceedings. It was not adverted to by him until he had heard Deputy O'Malley making it in the dying hours of the Bill. That shows it was a point without any real weight.

Lest anybody might be misled, particularly members of the forces in question, I want to reassure them that there is no question whatever of this new power being sought from the Legislature in order to economise and save on overtime, or of any gardaí being removed. I repeat unequivocally that the primacy of the police as the law enforcement agency of the State will be preserved. Their role and their presence will not be reduced. If anything it will be increased where necessary, and proof of the Government's intentions in this respect is the fact that an extra 500 gardaí are being recruited to deal with problems arising in non-Border areas. The primacy on the police will be maintained by this Government and its role as an unarmed force will also be maintained.

There is another matter I want to emphasise again, at the risk of boring my listeners, because it is often necessary to repeat oneself at some length to get a point fully across. This principle of the primacy of the police is categorically and unequivocally being upheld in this section because the role of the Army in this new context can only come into being on a request from the police. They have no independent police role. It is not a question that the section is saying: "From the passing of this Act the Army may do such and such". What the section says is that from the passing of this Act, provided a police superintendent or somebody not below the rank of police superintendent requests the Army, the Army then have certain limited powers of a police kind.

The second constraint and the second proof that the Army role is subordinate and limited is the fact that the powers given to the Army are limited to the offences under section 8 which, as I said, are broadly a range of terrorist offences. Deputy O'Kennedy pointed out that some of these offences might be committed by persons who would not be terrorists in the normal meaning of that word. That is perfectly proper. If we could know that the offence we were moving against, either to prevent it being committed or in the immediate aftermath of its commission had not been committed by terrorists, we would not involve the Army. Of course, one cannot know that. That is the reality of the situation. His was a debating point and it quickly appears as such.

I accepted an amendment to this section moved by the Opposition which will have the effect of giving a similar lifespan to this new Army power as to the Emergency Powers Bill. When both Houses of the Oireachtas annual the Emergency Powers Act the Garda will no longer have the power to request——

Or if the Government decide not to renew the Emergency Powers Act.

It is only when the Act is in force. That would be a matter of interpretation. I would interpret it as meaning that the section would only have effect as long as the Act is in force.

That is right. There is no disagreement.

I think we are ad idem on that. In any event, to all intents and purposes the Act will not be in force when the Government order is not renewed, but it will still be on the statute book. There is a distinction there. Because this is a power that is wanted to deal with the present emergency situation we are in, it is only right that it should fall when that emergency situation comes to an end, and that will be when both Houses of the Oireachtas pass appropriate annulling resolutions. It is, I am sure, the sincere hope of everybody in this House that the emergency will not last as long as the last emergency and that, when it becomes a dead letter in fact, we will ensure that it also becomes a dead letter in law, and not have any ludicrous legal positions arising therefrom.

I am satisfied that the Bill as passed, and the earlier Bill as passed, and the resolution, provide the State with invaluable weapons in the fight against terrorism. It is important that the forces of the State and the legal armoury of the State should be adequate to deal with the problems which face us. It would be intolerable that democracy would not take these basic steps to defend itself through its legal system, and that it would tolerate a legal system which would be less than adequate to give the protection it requires. We are not protecting something abstract. We are not protecting abstract institutions or something abstract such as the State. As was pointed out in the Seanad, the State is the people. We are dealing here with the lives and fortunes of the citizens of the State.

Deputy Carter was the last speaker to make the point—it was made by others in this debate and it is still valid —that we are faced with the age-old dilemma of how far does a democracy go to protect itself without unduly interfering with the rights of citizens. I submit very positively to the House that this Bill goes an appropriate distance and holds the balance in favour of democracy while, at the same time, taking the powers necessary to safeguard the privileges democracy has for us all. It is a matter of judgment. I am satisfied the correct judgment has been made in this case. I am also satisfied there is great public support for our judgment in this regard.

Question put and agreed to.
By agreement the Dáil adjourned at 9.30 p.m. until 2.30 p.m. on Wednesday, 20th October, 1976.
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