If somebody completely innocent is pulled in under section 7 and is kept in detention for seven days and perhaps on the fifth or sixth day an effort is made to take fingerprints and so on, he will be very likely to protest violently. If force must be used who is to determine what is a reasonable amount of force? Suppose an innocent man is pulled in on suspicion because of his associations, when that man is released where would he go with a complaint that unreasonable force was used?
Criminal Law Bill, 1976: Committee Stage (Resumed).
The question as to whether adequate and reasonable force was used would be a matter that would be decided subsequently if the person took action complaining that unreasonable force was used. It would be decided by a court.
The police will be the only people who are entitled to or who can give evidence before the court.
Why is this section necessary at all? The principal purpose of the section seems to be to give the Garda power to search vehicles and persons in vehicles. The section gives them that power if they have reasonable cause to suspect that an offence has been or is about to be committed under one of the provisions which are set out in the section. Most of us thought that the Garda already had this power. If that is not so, the insertion of this section in this legislation, and indeed other sections that have been inserted in other legislation recently such as the Drugs Bill, would seem to indicate that we need a comprehensive Police Powers Bill because we seem to be legislating ad hoc in order to confer particular powers from time to time on the Garda Síochána. I could well visualise a member of the Garda being completely confused from time to time as to under which particular section of which particular statute he should decide to take action. The section itself does not present any difficulties to us, but that question does arise and I would like the Minister to let us know why the Garda have not already got this power and why has it to be set out in this very detailed specific way in this section.
Does the Minister agree that at a very early stage he should come before the House with a comprehensive police powers measure? From the point of view of the effectiveness of the Garda as a security force and, secondly, from the point of view of the ordinary citizen and legal practitioners it is becoming increasingly important that there should be some codification so that everyone will know exactly where he stands in regard to the powers of the Garda to search either vehicles or premises.
The powers being given to the Garda now were, oddly enough, not already covered by legislation and I think most Members were surprised to learn that this was so. They have power to stop vehicles under the Road Traffic Act but there was no power to search the vehicles and any searches that took place were carried out with the co-operation of the public. As I indicated in my Second Stage speech, this co-operation was at all times forthcoming and there was, therefore, no difficulty. However, once the gap was there, it was felt desirable that it should be closed and the Garda should have legal powers to enable them to deal with a person who might not be co-operative.
The idea of a comprehensive police powers Bill sounds attractive but I do not think it would improve the position. Every existing statute would have to be searched to see what power the Garda had under it and this would then have to be transferred into a comprehensive Bill. In doing that one tries naturally to devise an omnibus provision and that could lead to great difficulty and, after the Act had been passed, I am quite sure some situation would arise not covered by the Act. As a matter of practical procedure, I cannot see any alternative to giving the police the powers they need to implement whatever legislation comes here from time to time. In addition, a sort of omnibus measure covering past and future events could inhibit debate here. If power were already provided there could be a feeling in the House that the power being granted in the comprehensive Bill was too wide or too narrow. Thinking about it for the first time these difficulties would be very great indeed, but the idea is an interesting one and I shall keep it in mind.
The Minister must acknowledge we are getting into a fairly confused sort of situation. We are dealing with a Drugs Bill and under that the Garda will have power to stop and search vehicles. They will have the same power under this Bill, plus other powers. What will be the situation of the Garda, on the one hand, and the citizen on the other? Will the garda have to make up his mind whether he will search the vehicle under the Drugs Bill for drugs or under this Bill because he thinks someone in the car has committed an offence under the Offences Against the State Act? What is the citizen to think? Is he being stopped and searched because he is suspected of being a subversive or because he is suspected of having drugs? There is a great deal to be said for the Garda having powers spelled out very clearly in a composite measure. The Minister's argument that a comprehensive measure would be found to be inadequate is not very convincing because, if a comprehensive measure were found to be inadequate from time to time, surely the present situation in which we have isolated powers dotted all over different statutes is much more likely to present inadequacies.
Deputy O'Kennedy and Deputy Blaney rose.
I am sorry, Deputy O'Kennedy, but I was about to call Deputy Blaney.
This section is very similar to section 5 and the probability is that what is proposed here has really nothing to do with an urgent situation but will become the law to be applied in future. Police powers are being sought and, beyond being justified because of an alleged emergency, these are powers that would not be sought or, if sought, would certainly not be given by this House at a time other than this trumped up emergency we are supposed to have. Only the Minister and the Government know anything about this emergency. If there were an emergency, there would be some point in seeking these powers. Providing these powers is bringing us straight into the realms of a police State and the Minister or anybody else will not convince this House or the public that this will not happen. The Garda will be empowered to stop any person anywhere at any time. This is just not good enough. We have survived without that up to now and I do not see why we cannot survive without it in the future.
Under subsection (3) the Garda may use reasonable force. This provision is very similar to that in the Emergency Powers Bill. If it is thought to be required in this bogus emergency situation, then let us have it in the Bill already passed but do not incorporate it in this measure. The references in the earlier subsections are more objectionable even than those in the Emergency Powers Bill because there is no effort to present what is proposed here in the light of there being a special situation. As far as we are concerned, this will be for all time. In subsection (2) we have the same objectionable wording as that in the Emergency Powers Bill: "Where a member of the Garda Síochána who with reasonable cause suspects...". It is changed around here. Under the earlier Bill it was "suspects with reasonable cause" but I dare say the interpretation would be the same. If the Garda have the slightest suspicion cars will be pulled up and searched and, so long as this Government continues, we will have the amazing situation of the Garda "with reasonable cause" suspecting or "suspecting with reasonable cause" having the power to stop and search vehicles and persons in those vehicles. This may be done at any time, anywhere, to anybody in any circumstances whatsoever.
With the Emergency Powers Bill being through, I take it, by the day of the all-Ireland final, would the Minister ever get them on the roads leading out of Dublin that evening to make what we are talking about here really obvious? Indeed, he should get them in their cars on the roads into Dublin on that day; pick out that day particularly because it will happen on such days, as happened before with even less powers at their disposal. Without doubt, in some of those thousands of cars moving in and out of Dublin on that day there will be one that contains somebody or other on whom the guards would like to get their hands. Therefore, there would be reasonable cause to suspect that a car coming to or going from the all-Ireland final would contain some person who could be apprehended under this or a previous measure. So, stop the lot and search the lot. Compel them to stop and use whatever force is necessary.
I see Deputy Luke Belton smiling. It is no laughing matter. I am merely instancing the crazy situation for which we are providing in the immediate future. Only a fortnight from now it could be done. It has been done on such occasions already without the existence of this power. What will it be like now that we are providing the power, not alone in this Bill but already under section 2 of the Emergency Powers Bill? All that is required is that any single member of the Garda force "who, with reasonable cause suspects", and all the rest of it, which would not let a fly through a screen in so far as there being any way out of it; there just is not. This is a complete and absolute road block in the literal sense.
I totally object to this interference with the rights of the individual. God knows we have had sufficient interference in our short history without adding more by our own say-so and operations in this allegedly democratic institution. It will not be democratic too long if we continue to churn out laws of this nature, not for emergency purposes, as provided for in the Bill we passed the other day, but for permanent operations. Then there are those who blandly stand up and say this is needed, with all sorts of niceties being added as to why we should have it in that way. It is police state control, do not have any doubt about it. If at present it can be said that our police will not do this or that, we are now providing powers under which they can. Therein lies the danger. We should not be providing powers that will make it possible to have that type of police state operation—a "Big Brother" job—we have sufficient of that and certainly we do not want it provided for in this manner, not alone in the other Bill for an emergency situation but in this one for all time. "Big Brother" is the operative thought behind this type of legislation. No number of reasons advanced could justify that sort of thing. The Minister particularly will be responsible for the introduction and furtherance of the opportunity to practise police state operations here. We do not need it, we do not want it and we should not give it.
It would appear that the provisions of this section, which confer the power of search on the Garda, are to be confined to the various offences set out in subsection (1). May I ask the Minister if, in pursuance of these powers, a member of the Garda, having reasonable cause, searches a car or some other vehicle and finds, for example, stolen property, drugs or contraceptives—if that is an offence—is he then entitled to proceed with the search, proceed with the search of other persons, to use reasonable force and all the other powers conferred on him under this section? Is the State then entitled to use that evidence—which I would submit is improperly obtained—to support its prosecution, on indictment, or charge of receiving stolen property, stealing property or for illegal possession of drugs?
The search would be under section 8 and the Garda would be carrying out the search under the powers of section 8. The search would be quite lawful. If, in the course of that search, a guard were to come on stolen property, he would be committing an offence himself if he did not move on foot of what he found because he would then be guilty of felony. Therefore, it is quite clear that any other offence that might come to light as a result of the exercise of the powers under this section would properly have to be investigated by the guard and would be a proper subject for a charge. Likewise, any searching of persons in the car would be done as a result of the original stopping of the car, which would have been done under the powers in this Bill. The fact that other matters were found incidentally, subsequently, would not have any effect on the legal rights of the guard to continue the search under the powers conferred on him by this section.
Of course, that is what I was afraid of, that this whole package is likely to be used and abused by members of the Garda Síochána, indiscriminately and without reasonable cause, to search persons, to use force in searching persons and vehicles to discover information which may have nothing at all to do with the present state of emergency. That is absolutely inevitable; it must happen. The guards are only human beings and they will go on searching, without having reasonable cause, looking for matters to which they are entitled under this section. The whole process of the law will be abused. Information and evidence will be sought to support prosecutions having nothing at all to do with an emergency or security.
I want to reject quite categorically the Deputy's suggestion that the Garda powers under this section will be abused or used indiscriminately. It is an unwarranted suggestion and made without any foundation whatsoever. Nothing whatever in the tradition or activities of the Garda up to now could give any basis for making that suggestion.
That is wrong.
May I ask the Minister why what he wishes to do in section 8 is not capable of being contained within section 5, or an extension of it, with the control that these things may only be done on the direction or under the authority of a warrant? This is objectionable enough but the idea that we can have all of this in addition to the powers in the Emergency Powers Bill is too much. Why is section 5 not sufficient, in addition to the Emergency Powers Bill, to do what is required?
Section 5 is designed for a completely different purpose and gives completely different powers. Section 5 gives powers to search specific places as named in the warrant and section 8 enables the vehicle checkpoint system to be operated——
This is what we are objecting to. We are objecting to random searches.
Many checkpoints are set up as security measures for the protection of citizens. They are operated on occasions such as all-Ireland finals, rugby internationals and similar occasions. They are set up as a security measure; they are there for the security of all the citizens, not to harass the drivers. There are two completely different powers envisaged in the two sections. It would not be possible to provide for the random type of vehicle checkpoint search under section 5.
This question of convenience runs through the entire measure——
It is not a matter of convenience.
What is it then?
It is a matter that it is not practicable, it is not possible. Section 5 requires that a search warrant has to be issued by a superintendent in respect of the place to be searched and issued to a Garda sergeant for execution. The Deputy is asking that that procedure be undergone for every car coming into Dublin, for example, on an all-Ireland final day.
I realise it is much more convenient from the point of view of the Minister and the authorities to say: "Let's knock all of them to get the one person." What I am suggesting could be justified on any day when there is heavy or even normal traffic coming into Dublin. Any garda could conform to the requirements of the section by saying that he had reasonable cause to suspect that one car coming into or leaving the city on a certain day came within the ambit of the provisions of section 8. On that basis every car coming into or leaving the city could be stopped and searched and if the owners were not prepared to allow this they could be compelled by the use of reasonable force to have their cars searched. At that stage there could be an open-ended provision allowing for the searching of the persons in the car.
I am sure the Minister would argue that that would not happen unless in the course of the search of the car there was further cause as to why the person should be searched. There is a very fine line here. It does not prevent the indiscriminate searching of any car and, possibly, the people in the car. There is no point in saying it will not happen because we are making provision for it here. As the Minister has pointed out, the Garda are already stopping and searching cars without authority. Here we are giving them absolute, total, global authority. Irrespective of how they apply the provisions, they are so completely covered there can be no come-back by any person, no matter how aggrieved he may be about the manner in which he was compelled to allow the search to be conducted. One would imagine the public were the servants of the Garda instead of the other way around. In all the legislation we put through this House it seems that all levels of our public service are being provided with instruments in law to ensure that it is the public who are the servants instead of the reverse. In this case there is no doubt that we are providing here the blueprint for a police state in its worst form.
The Deputy is repeating himself. He has made that point on a number of occasions. I would ask him to please desist from repetition.
It is in every section of the Bill.
I have told the Deputy that he should avoid repetition.
Probably soon there will be laws that will apply to this House, controlling it in the same way as is happening outside. The powers being provided here are not necessary. They are an imposition on the public and they are a danger to the future well-being and to the rights of our people. The Minister should be ashamed of himself.
I am not satisfied with the Minister's assurance that this section will not be abused. It is inevitable that over-conscientious and over-anxious members of the Garda Síochána will use this section in the investigation of offences and crimes that have nothing to do with this alleged emergency.
Has the Deputy any evidence that the Garda Síochána in carrying out searches up to now have abused their powers?
According to the Minister they do not have any powers.
I am satisfied that innocent people will be harassed by over-conscientious members of the Garda Síochána——
I reject that.
——to justify the powers conferred on them and to justify the case made by the Minister and others in this House.
I do not see how Deputy Blaney or anyone else can object to a situation where the Garda Síochána would have the power to put up road blocks in the case of an important occasion, for instance a rugby match, when there would be a stream of vehicles coming into Dublin from the North and elsewhere and where the Garda were apprehensive about the situation. I cannot see why anyone should object to their searching vehicles in the interests of the security of all of us.
Have we not provided for that in the Emergency Powers Bill?
I do not think so. I am as conscientious and as anxious as anyone that the ordinary citizen would not be harassed, as Deputy Brosnan pointed out, or that the Garda would not be excessively zealous in the exercise of any powers we may confer on them under this section. I am prepared to accept the section because I have seen road blocks set up by Garda on these important occasions. It has given me a sense of security to see the gardaí out on the roads endeavouring to the limit of their ability to prevent some of these appalling and horrible occurrences. I wish in every way that is necessary to control and limit the powers being given to the forces of the State but in the situation in which we find ourselves I cannot see any particular objection to the powers proposed here. We are in the threatening and intimidating situation in which on any Friday or during any weekend we could have an incursion of evil-minded persons into our cities or into any part of the country. Surely we will not prevent the Garda having reasonable power to try to circumvent such atrocities. I do not wish to prevent anybody on this side of the House giving expression to legitimate fears. Indeed, as the debate has progressed those of us on the front bench have been firm advocates of the retention of the maximum amount of freedom for the individual and the restriction of harassment to the greatest extent possible but in this regard common sense should prevail. I will support any measure which enables me to walk the streets of this city with some sense of security.
There is one further point I wish to make, that is, that in the sort of situation the Minister has been talking of and to which I am now adverting there is underlined the importance of bringing in suppression orders against some of the organisations who might perpertrate atrocities. The powers we are giving here to the Garda would be supplemented considerably if the Minister took the additional necessary step of identifying certain organisations and suppressing them so that the Garda would be able to have the full panapoly of power available to them to deal with any members of those organisations whom they encountered in these sorts of situations.
I was amazed to note the list of Acts to which this section relates. For example, the Fire-arms Acts 1925 and 1971, the Larceny Act, the Offences Against the Person Act, 1861 and several others. The reason I was amazed was that I understood the Garda always to have had power to search cars under the conditions we are talking of. Indeed, if at any time I had been asked to allow my car to be searched, I would have considered myself obliged to co-operate with the Garda. However what concerns me is the casual type of search that is carried out. If people wish to come here carrying explosives, they will not carry them in the boots of their cars nor will they travel on the main roads. Perhaps this type of detail is something which the police are capable of dealing with but I suspect that the type of casual search carried out by the Garda is a waste of time because in the knowledge that the search is casual, people of evil intent would be tempted to take risks. They would be likely to travel by way of backroads. As I have said here already, a friend of mine and his wife were blown up by an explosive which had been tied to the chassis of their car. The device was intended to blow up the place at which the wife worked. The point is that the explosive was not placed in the boot of the car or on the back seat but was concealed underneath. That is why I say that if there is to be a search, it should be a thorough one.
The same applies to the searching of cars entering the precincts of this House where an usher merely looks into the boot. To me this is a silly exercise and is a waste of time on the part of those whose duty it is to conduct it. If anybody wished to use my car for the purpose of sending an explosive in here, he would not put the device in a place as obvious as the boot.
Now that the Garda are being made aware of the powers which have always been there, I trust that they will not abuse them. In this context I do not entertain the same fears as those expressed by Deputy Brosnan for the reason that I understood these powers to have been available all along. I was of the opinion that after a murder had been committed, for instance, the Garda had power to stop cars and search them and anybody travelling in them. However, I trust that the people will appreciate the real purpose of emphasising those powers and will give to the security forces any co-operation necessary in the conducting of searches.
Listening to Deputy Haughey, one noticed a certain similarity in his approach and that of the Minister. It is an approach which is very dangerous because it indicates that this phony, pseudo emergency has caught on and that we are thinking in terms of protecting Dublin and other areas by the vigilance of the security forces in executing searches of cars approaching our cities and towns. By all means let us have those searches but there is no need for a sledge hammer to permit them to be carried out since there are powers in existence which can be used for this purpose. If this is the only matter which concerns us in the field of the security of our cities and towns, is there any reason for going beyond the first two paragraphs—(a) and (b)—of subsection (i)? These paragraphs give reason for the fears that have been expressed and for what Deputy Haughey said. Does the Minister say that at the moment the gardaí have no right to stop anybody?
No right to search.
The Minister has indicated that the powers of the Garda are defective in so far as carrying out global searches are concerned, searches of persons as well as cars. I have not much confidence in the efficacy of checkpoints as far as protecting a city is concerned. It may be that they give some sort of feeling of security to the people, and perhaps that is good in itself, but I personally would not have much confidence in them. This is evident from the continuance of violence in the Six Counties in the past seven years. There, no cars were allowed into towns and yet there were blow-ups in the middle. On big days in Dublin—of course there are big days outside Dublin too—I would not accept checkpoints at the bounds of the city as being of much security value.
Why not use the powers the Garda have already under other Acts, under the Emergency Powers Bill and elsewhere, without having to impose this subsection as permanent legislation? There have been laws which have fallen into disuse in a generation. Why not develop the situation we have instead of imposing other measures as permanent legislation? This seems to me to be superfluous and dangerous.
I am dissenting.
I move amendment No. 5:
In page 6, to delete lines 14 to 16 and substitute the following:
"9.—Where in the course of exercising any powers under this Act or in the course of a search carried out under any other power, a member of the Garda".
This is intended to put beyond doubt that the provisions of the section apply only to the exercise of lawful powers. The words in brackets in the section "or otherwise" might be construed as including an unlawful search and it is extremely doubtful if the courts would so construe it or would permit any action to be taken on foot of a search that was unlawful. The words "or otherwise" are not specific enough and the amendment is designed to cure that. The section and the amendment refer to "powers" as distinct from searches. It is possible an article might be seized or obtained under, for example, section 7 (1) otherwise than in the course of a search.
During the course of the Second Reading this side expressed as strongly as possible our concern at the provisions of this section. Indeed our views have been strengthened with the publication of the views of the Incorporated Law Society which are similar to ours. They expressed concern at the portions of the Bill which would directly affect the independence of the legal profession. In my opinion, the proposed amendment of the Minister allows the provision still to be too wide. The amendment appears to suggest to the public that the subsection is to safeguard the independence of a solicitor or barrister and so to protect the rights of an accused person in relation to his legal advisers. This matter is of some significance when it is recalled, as reported in the newspapers, that in a recent case in the Special Criminal Court when the presiding judge directed that certain papers be returned to an accused person, that direction was obeyed reluctantly——
Reluctantly? How does the Deputy know that?
That is my interpretation of the newspaper reports.
The newspapers did not say "reluctantly" as far as I recall.
The reports I read indicated there was reluctance to return the papers. Even with the Minister's proposed new subsection, the section would appear to me to take away from the Judiciary the right to give such a direction. It is arguable that the subsection leaves it open to a person, not necessarily with any knowledge of the law or even of the facts of the offence with which an accused person was charged, to decide on his own initiative if the document was not made solely for the purpose of giving or communicating legal advice. All this could be precipitated on the basis of "the reasonable suspicion" of the unqualified searcher.
The Minister must be aware of a common situation when a solicitor has an interview with an accused and possibly takes a statement from him. A note of the interview with the client and his statement will often be forwarded to a barrister to get his advice. That having been obtained, the solicitor would then naturally wish to communicate those views to his client in custody awaiting trial. In the first instance, this bona fide confidential advice can be seized on the representation of a third party to the searcher who in turn can say his suspicions were genuine because he believed the representations of the third party were genuine.
It should be fairly clear that the wide wording of the earlier part of section 9 would allow this confidential advice to be used as evidence in any trial, including the forthcoming trial about which the accused and his lawyer have been in correspondence. If this subsection as presented now is passed, it means an accused person is faced with a new danger, and one which could effectively destroy the presumption of innocence every accused has and which we would all like to see him having in this jurisdiction.
The Minister and the Government must be aware of the very frequent cases where an accused will give an account to his legal advisers of his connection with the crime with which he has been charged in order to get legal advice on whether or not he should plead guilty, for example, when his trial comes for hearing. If such a statement is seized under section 9, clearly it can be used in evidence. The only protection against this is the suspicion of the searcher which, under the subsection he may have obtained from a third party, that the document was not solely intended for the purpose of giving or getting legal advice. Once the searcher has claimed such a suspicion, the document is liable to be seized and used in evidence. If the searcher maintains his view that, at the time he seized the document, his suspicion and only his suspicion was genuine, there seems to be no way in which such a document can be ruled out as evidence, even if it is a totally genuine correspondence between a member of the legal profession and his client.
I am fairly satisfied that this amendment will not meet the genuine worries which are shared by many with regard to the contents of this section. I am not at all happy that the distance the Minister has come in his amendment will satisfy his own colleagues in the legal profession who are members of the Incorporated Law Society.
The Minister's amendment goes part of the way but, in the absence of legal knowledge——
If I may interrupt the Deputy, I think we are discussing amendment No. 5a as well as amendment No. 5.
Can we discuss it if it has not been moved?
We are discussing amendments Nos. 5 and 5a together. We can have separate decisions if necessary.
The amendment seeks to remedy the principal objection we have to the section, that is, the seizing of legal documents in relation to the defence of the person involved. I do not like the word "retain" which indicates that a document would be in the possession of the prison officers, or the Garda, or the court officers, as the case may be, depending on where it was seized. If it is a question of whether a legal document should or should not be retained, this indicates to me that it has been in the possession of the person who seized it. A legal document could be misused by the people who seized it, even if it were in their possession for a very short time only. They may have time to have a photostat copy made, or they may have had time to get to the kernel of the defence of the person in custody.
How is the officer who seized the document in the first instance to find out whether it is a legal document if he does not read it? If he does read it, he can glean from it all he wants to know about the approach to the defence. The legal profession, of which the Minister is a member, would take great exception to that. The amendment actually concedes that, because it says he has the right to retain a document. That is the only thing which concerns me as to whether the amendment is actually a proper safeguard against the main objection to the section.
Our difficulty here is to give what Deputies opposite and the professional bodies would like, that is, absolute confidentiality in regard to documents during visits to prisons. Unfortunately, if that were to be given, there would be a conflict with security. There have been instances where the high degree of confidentiality, the privileged position afforded to legal advisers, has been abused. For the information of the House I might indicate that, only a matter of some days ago, a solicitor was fined £250 by the President of the High Court for unprofessional conduct which involved a breach of prison security. He was also prohibited from entering Portlaoise and Limerick jails.
I assure the Minister that we want to be as helpful as we possibly can.
I understand that.
Could the Minister say if that person is now liable to be brought before the courts in the ordinary way?
No, because there was doubt in the law at that time. One of the doubts has been cured by an earlier section. In any event, it is no answer to say a person can be brought before a court or a disciplinary body. We have to stop the abuse at the time or before it happens, because that is when the breach of security can take place, and that is when there could be a danger to the security of the institution. We are in the dilemma that absolute confidentiality and security are incompatible. There are no two ways about that. As far as I am concerned, absolute confidentiality has to give way in the interests of security.
Will the Minister take a question? Have his amendments drawn further comment from the Incorporated Law Society? Is the Minister aware of any views they may now hold on the section as it will be if amended?
The Deputy referred to the Incorporated Law Society's memorandum to me, but he did not refer to my reply in which I dealt in some detail with their criticism of section 9. I presume a further reply will be coming to me from them.
Have they studied the proposed amendments and sent the Minister any comments on them?
Not that I am aware of. What I said to the Incorporated Law Society, and I think it is relevant to say it again here, is that there have been abuses. I have indicated a particularly serious one which has now been punished. I am not suggesting there is any widescale number of abuses. The number is extremely small. The vast majority of legal practitioners discharge their professional functions honourably. On the other hand, when serious security issues are in question, I cannot ignore the fact that abuses have taken place and that provision for absolute confidentiality could permit abuses to happen in the future. The general right to search and seize articles from legal advisers unfortunately cannot be waived.
One would gather from the tone of the debate here that prison officers are avidly awaiting a chance to read a document and pass it on to the prosecution. I want to reject that sort of idea. This has not happened. Lawyers who have been in the habit of visiting prisons regularly and have been in contact with prison officers will be aware that they have been received with scrupulous decorum and that the privacy of their documents has not been abused. There is no intention of changing that practice. If there could be a formula which would provide a statutory guarantee with regard to confidentiality and, at the same time, recognise the realities of security, I would be glad to hear of it. Quite frankly, I am certain it is not possible to reconcile the two positions. The amendments I put down, particularly amendment No. 5a, are designed to go as far as I possibly can in that regard, but we have to retain the ultimate power to seize and retain a document in the interests of security.
The Minister is agreeing that the amendment does not prevent the seizure of a document?
No, it does not.
It only prevents the retention and by that time it could be scrutinised.
That is assuming that a document that is seized and given back will be scrutinised for what I might say will be illicit purposes but the whole history of relationship between prison officers and visiting legal persons suggests that that will not happen. It is not part of the tradition. Confidentiality and respect for the privacy of legal documents has been a feature of prisons officers' relationship with the legal profession.
This is the section which has given rise to much concern by the Incorporated Law Society of Ireland and lawyers in general. The Minister's amendments, or anything he has said, will not allay their fears and suspicions. The section, even with the amendments, makes it impossible to operate properly the Judges' Rules which are there for the protection——
They have nothing whatever to do with the Judges' Rules.
I repeat, makes it impossible to operate rules which are there for a long time for the protection of prisoners, detainees and persons in custody. The Minister says it is impossible to have absolute security and preserve absolutely the confidentiality between a solicitor and his client or a barrister and his client and I agree but the Minister would be well advised to err on the side of absolute confidentiality rather than to insist on this absolute security.
The members of the legal profession can and should be trusted as much as prison officers to preserve and protect the security of the State. I am not satisfied and neither are members of the Incorporated Law Society of Ireland that in the operation of this Bill abuses will not arise, inadvertently perhaps. I ask the Minister what will happen in the case of a prisoner who makes a confession which he proposes to hand to his legal adviser when he visits the prison. In the course of that confession the prisoner might admit to an offence but that confession might inadvertently and innocently, but not maliciously, be found by a prison officer or a guard or a member of the Defence Forces in the course of the detention or search of a person detained or in the course of a search of a visitor to a detained person. Would that not inevitably come improperly into the hands of the authorities? Will that not be admitted as evidence against the accused person? That is one of the many ways in which this is open to having innocent persons and persons in custody having evidence admitted improperly against them. That is why we are all concerned about this.
I understand the Minister's dilemma. The Minister has certainly gone part of the way to try to meet the situation and having heard what was said this morning, would the Minister bear in mind what we have said? Will the Minister try to get the views of the Incorporated Law Society of Ireland on his proposed amendments? I do not think we have had those views so far. Perhaps during the course of the debate in the Seanad the Minister might improve the situation, if he can, bearing in mind the security involved and professional etiquette.
I have invited the views of the society and indicated to them that I will certainly consider them.
I move amendment No. 5a:
In page 6, between lines 27 and 28 to insert the following subsection:
"(2) If it is represented or appears to a person proposing to seize or retain a document under this section that the document was, or may have been, made for the purpose of obtaining, giving or communicating legal advice from or by a barrister or solicitor, that person shall not seize or retain the document unless he suspects with reasonable cause that the document was not made, or is not intended, solely for any of the purposes aforesaid."
I move amendment No. 6:
In page 6, lines 36 and 37, to delete "in his possession" and substitute "in his possession without that permission".
This is purely a drafting change. It is to complete the sense of the provision and it does not add anything at all to the section.
I move amendment No. 7:
In page 6, to delete lines 41 to 51 and substitute the following:
"(2) (a) A person who is in or in the precincts of a prison, Garda station, or courthouse and while there intends to visit or meet, or has visited or met, a person in lawful custody in that prison, station or courthouse shall not have in his possession any representation or note which is referred to in subsection (1) of this section without the permission specified in that subsection, and any person who has any such representation or note in his possession without that permission shall be guilty of an offence if he has been informed orally or by written notice that possession of any such representation or note without that permission is forbidden.
(b) Notwithstanding paragraph (a) of this subsection, if a person applies for the permission specified in subsection (1) of this section at the first available opportunity after arrival at the prison, Garda station or courthouse, he shall not be guilty of an offence under this subsection unless and until the permission is refused and he continues to retain possession of the representation or note."
This is to insert two new subsections. These amendments are all of a drafting nature. This one breaks up the existing subsection (2) into two paragraphs as set out in the amendment and introduces the words "meet" and "met" in the new subsection (2) (a). These appear to be necessary to cover a situation for what occurs and that could not really be categorised as a visit in the sense of a person coming into the prison for the purpose of visiting and meeting somebody. It introduces the words "without that permission" in subsection (2) (a) because they are necessary to complete the sense and it makes clearer the let out for the person who declares that he has the representation or note in his possession on arrival.
Yes. It is intended to tighten up and tidy the general effect of a section.
Would it apply to persons only visiting persons in custody or to persons in custody?
It only applies in a custody situation.
Persons strolling into a court will not be searched?
Persons strolling into a court would not be.
He would have to be visiting some persons in custody?
It would be clear that a person in the precincts of a prison and while there intends to visit or meet a person in custody is covered. That would be the condition before a search could be carried out.
I move amendment No. 8:
In page 6, between lines 51 and 52 to insert the following subsection:
"(3) Nothing in this section shall make it unlawful for a person to have in his possession in a courthouse any representation or note which is referred to in subsection (1) of this section and is intended for production, use or reference in any proceedings that are taking place, are about to take place or have taken place in that courthouse."
This is to insert a new subsection. The subsection is to cover the case where the representation or note is bona fide in the possession of a prisoner or his lawyer in a courthouse where it is intended to be used in the course of proceedings before the court. Again, it is to ensure that no injustice will take place and to give a let out to people who are innocent.
This is a technical change to declare the offences of kidnapping and false imprisonment, and section 10 of the Criminal Law Jurisdiction Act offences—which can be broadly termed as hi-jacking offences —to be felonies. I know that there is general feeling in law reform circles that the distinction between felonies and misdemeanours should be abolished, and it may be asked why declare the two offences felonies when it is proposed to abolish that category? In the abolition of the category the incidents that attach to a felony will have to be preserved in law and until such time as the distinction is removed, and felonies and misdemeanours are the same, with all the same powers and general legal consequences, it is important that the serious crimes of kidnapping and false imprisonment should be categorised as felonies, so that they can attract the various consequences that attach to a felony, the principal one being the right of arrest for a citizen. Subsection (2) provides that a person guilty of kidnapping or of false imprisonment shall be liable to imprisonment for life. This is to put into statutory form what is already a matter of common law, but it is to make the penalty life imprisonment because they are such serious offences.
This is a section to provide more severe sanctions for what is commonly called the bomb hoaxer. I am sure Deputies will agree that that is an offence which needs to be dealt with severely because of the amount of economic harm that bomb hoaxers can do. I feel there will be a general welcome for this provision.
We welcome very much the provisions of this section— as we did on Second Stage—which as the Minister said is designed to deal with bomb hoaxers. We said and we still believe that the section is long overdue, and certainly the whole House, and the country, will agree that inconvenience is being caused to the general public, the amount of very valuable Garda Síochána time that can be and is being wasted by a person who wrongly indicates that there is a bomb in any place, is sufficiently serious so that the present punishment of a fine of £10 or a month's imprisonment is insufficient. I suggested during the course of the Second Stage that it might be strengthened up by inserting in clause (a) of section 12 the word "recklessly" so that the offence would be if a person either knowingly or recklessly made such a false report or statement. This might be dealt with perhaps on Report Stage. If the Minister has not considered it by now he might consider it on Report Stage or in the Seanad.
As a matter of law the word "knowingly" includes the element of "recklessly".
I move amendment No. 9:
In page 7, between lines 29 and 30 to insert the following subsection:
"(2) Subsection (1) of this section shall not apply in any case where the sentence being served or to be passed is a sentence of penal servitude for life or imprisonment for life."
I will take the section and the amendment together because when I speak on the section I can make the point of the amendment. Subsection (1) provides that any sentence imposed on a person for an offence committed in the course of serving a sentence will be consecutive on the sentence he is serving, subject to the qualification that two sentences imposed by the District Court cannot exceed 12 months. This is to take account of the constitutional position in relation to sentences in that court as provided under the Criminal Justice Act, 1951. It was suggested in a newspaper comment on the section that it did not include life sentences and the amendment which I am now moving is to deal with that anomalous position.
Where a person is already serving a life sentence and is convicted of an offence, or where he is serving an ordinary sentence and during that sentence he is convicted of an offence for which he must be sentenced to life, it would be anomalous if not ridiculous to have a provision that in either of the cases mentioned the new sentence has to be expressed to operate from the termination of the sentence being served, so the new subsection has been introduced to provide that subsection (1) shall not be applied in any case where the sentence being served or to be passed is a sentence of penal servitude for life or imprisonment for life.
I do not follow the Minister too clearly. Am I right in assuming that section 13 is necessary to clear up some doubt in the existing law?
There is no doubt. In practice what often happened was that the court did not specify that a sentence imposed for an offence committed during the course of an existing sentence was to be consecutive and without such specific direction by the court it was concurrent and what often happened was that the sentence did not mean a thing.
The power of the section is restricted to dealing with the case of a person who commits an offence while in prison serving a sentence, therefore it is a very narrow, limited operation. To some extent it restricts the freedom of the court to exercise discretion. The Minister in the section is making it mandatory, if the court finds a person guilty of an offence while serving a term of imprisonment, that the term of imprisonment to be imposed as a result of the conviction must be consecutive to the term that the person is actually serving, or if he is serving one sentence and is due to serve another after that, that it follow the later sentence.
I am not clear on the need for it or the legal desirability of it. I can see that the Minister does not want to have the court, in the case of a person who has been found guilty of committing an offence while in prison, impose a sentence which runs concurrently with the existing sentence and is therefore meaningless. One can see that that is a reasonable proposition in normal circumstances. There is no point in the court imposing a prison sentence for an offence committed, if it will simply run concurrent with the sentence which the convicted person is already serving. However, is it not possible to visualise, even if some technical offence is committed and the offender is found guilty, the judge taking all the circumstances into account and feeling that the case could properly be met by a concurrent sentence? Such a sentence is a common feature of the normal law.
If a judge felt that a concurrent sentence, or a very short extension of the existing sentence would be adequate, there is a device whereby the court can, in fact, achieve that by imposing the appropriate sentence and then suspending it for whatever period is appropriate.
If there were a mandatory sentence the court could be caught.
Yes, but there are very few such offences.
I can see the need for it and I am sure the courts will operate it satisfactorily and find a formula to enable them to meet peculiar circumstances in particular situations. The amendment is just plain common sense. If a man is already serving a life sentence there is no point in adding on another sentence to the end of it. The only way in which such a sentence could be made effective would be by giving the man another life. We accept the amendment.
This is purely a drafting section. The 1972 Act extends the definition of documents contained in the 1939 Act to include such things as photographs, discs, tapes, films. Sections 13 and 14 of the 1939 Act require printers of documents to record the names and addresses of the persons for whom they have printed the documents and their own names and addresses. Unless the old definitions were retained for that section an extended definition would not mean anything. It would be ridiculous. It is purely a drafting amendment.
This section proposes to give certain powers to the Defence Forces to arrest and search in certain circumstances. These new powers have been the subject of criticism and that criticism implies that an armed police force is being constituted. It also implies that there will be soldiers on our streets acting as policemen in a way that has not happened up to now. It is suggested that this is opening the door to further possible powers to the military. I should explain the reason why the Government decided to make this change and the nature of the change because if both are understood the apprehensions expressed will be seen to be misplaced and unjustified. At the moment we are in a state of emergency, a state when there have been many acts of gangsterism and terrorism throughout the country.
May I ask a question? Does the Minister mean "technically"?
Actually and technically. We know that in an adjoining jurisdiction there is an armed conflict taking place which has over-spilled into this jurisdiction. It is important that the State should be in a position to protect itself and, protecting itself, means protecting its citizens because the State is the sum total of its citizens and those citizens want to be protected. Accordingly the Government have a duty as the people temporarily in charge of the State to utilise all the forces available to the State and designed for the protection of the State.
Our Defence Forces are designed for the protection of our State. We have this force of some 14,000 persons uniformed and disciplined. It is important to remember that these are uniformed, disciplined people who have sworn to serve the State. It is not an army of mercenaries recruited for a particular operation. It is a permanent defence force organised on strict military lines, disciplined and highly trained, a highly responsible force which from the day it was set up in difficult times has given loyal service——
Would the Minister take a question for clarification? When he talks about the Army, in the Bill it is described as "Defence Forces". Do those forces include members of An Forsa Cosanta Aitiúil and of the Naval Service?
I understand it could include the FCA.
Either it does include or it does not.
It does include. The Defence Forces are all the people recruited under the Defence Forces Act. All the members of the Defence Forces have taken an oath of loyalty and traditionally—tradition is important in the personality of any such body—they have served the State loyally. The Government consequently felt that to have such a force available, uniformed and disciplined, and not to utilise it in situations where it could be properly more fully utilised would be negligent on the part of the Government. We have a very long Border and Deputies familiar with the topography of the area understand precisely the difficulties of patrolling the area with its hundreds of crossings, its twisty roads and varying terrain. It is most difficult to patrol from a security point of view. The primary law enforcement agency are the Garda Síochána. They have always been an unarmed police force right from the date they came into being until now and I assure the House there is no question of the policy of maintaining them as an unarmed force not being maintained.
They are our primary law enforcement agency and will continue to be so. On them falls the primary burden of providing security and enforcing the law in this difficult area I have described, an area involving the Border, many hundreds of miles long, with hundreds of crossing points on it, embracing a very difficult, isolated and, in many instances, lonely terrain, lonely in the sense of being situated quite a distance from Garda stations or urban areas. Naturally, in regard to the limitations on the size of our force very often they are stretched, in terms of man-power in performing their duties, in such an area notwithstanding the fact that the force, for some time past, has been at its highest level since the inception of the State—with a further 500 men being recruited—and notwithstanding the fact that there are more men stationed on the Border than have ever been stationed there before. There have been instances in which the absence of a garda at a particular time has inhibited the carrying out of a security operation to the fullest and maximum extent. The Government felt that the military presence in that area—and they are stationed there in considerable numbers—should be utilised to supplement the Garda operation and that they should be given certain powers to act in strictly limited circumstances.
Is there any period specified?
The constraints on the circumstances—and I will answer Deputy Brennan's question now— under which the military can act are set out in section 15. The military can act only to use the powers conferred on them under section 15 whenever they have been required to do so by a superintendent of the Garda Síochána. He makes a request to the members of the Defence Forces for their assistance, for the period specified in the request.
It could be a year.
Therefore, it would be a matter for the police on the ground to specify the period of the request. It is not envisaged that it would be for a year, that, if you like, these would be requests made to deal with an ad hoc situation, not a request to deal with a situation on a continuing basis. That is the way in which the powers will be exercised. If it were to be otherwise there would have been no point in mentioning a period at all in the section.
Therefore, the first constraint is that the military powers are not independent military ones, in the sense that the Garda have independent powers under the Acts setting them up. They are subordinate powers, subordinate to the Garda Síochána and, because they are subordinate, will remain, and have to remain, the principal law enforcement agency of the State. They will have the overall control of the enforcement of the laws of the State. They will decide, in their judgment, if a situation is such that they require military assistance, using the powers proposed to be conferred by section 15. Of course, there can be situations where the Garda can call up the Army in aid of the civil power, as heretofore in the normal way, and not by way of a requisition under section 15. In such a situation the Army will come to the assistance of the Garda, as has been happening all along, but their role will be passive in a legal sense, that is, they will not have any powers of search or arrest.
I do not envisage any significant difference in the modus operandi along the Border consequent on the passage of section 15. I have no doubt that, in the vast majority of cases, the military role will continue to be passive in practical terms though, if they are on the scene in pursuance of a requisition, their presence would not be passive legally and they would be entitled, if the need arose, to exercise the powers here. I do not envisage any difference in the scene, so to speak.
The first constraint is that the new powers to the military are under the control of the Garda. The only person who can requisition the military, issue the request which gives these powers, will be a member of the Garda Síochána. By that provision the primacy of the Garda as the law enforcement agency of the State is being specifically and very definitely preserved. Therefore, to suggest that a second police force is being created is, I think, altogether an exaggeration and misrepresentation of what the section contains. There is one police force only, the Garda Síochána. They can call in the Army to assist them in certain instances and, in some of those instances, they can make a specific requisition for Army assistance which will enable the Army, in response to that request, to exercise some of the powers the police possess. To suggest that, in that limited way, a second, armed police force is being created is, I submit, a gross exaggeration.
The second constraint is that the powers which are being conferred are limited ones. They are already limited in the way in which they come into being. They can only come into being —I feel I must keep repeating this—in response to a requisition from the police. That is the only way they can come into being. That simple mechanism preserves the primacy of the police. The second constraint, then, is that when they do come into being in that limited fashion, they are exercisable, not over the whole broad range of our law, but in regard only to matters set out in section 8. That is a further argument against the exaggeration that we are creating a second police force. There can be no question of creating a second police force because it is of the nature of a police force that they have a function within the entire spectrum of the legal system. But the powers given to the Defence Forces to arrest and search, in the circumstances set out in section 15, relate only to the offences described in section 8 which. I think, I have accurately called in broad terms "terrorist offences".
That is the situation. I might say that I envisage the powers not to be used extravagantly; that they will be used only when there is a need for them. We are conscious that they are new powers. We are conscious that new powers such as these—which have given rise to genuine but, I feel, totally misplaced apprehensions —should be used sparingly. It will be alleged that the police do not want this extension. As far as I am concerned, that argument is not valid. But, even assuming it to be valid——
Is it accurate?
It is not accurate either. Even assuming it to be valid, there will be members of the police, the same as there are members of the general public, who do want to see these powers being given, who do not understand fully what is involved and who do not appreciate their very limited nature. It would be extraordinary if there were not some members of the police with such views. It should be a matter for gratification that it is a view that might be held because it will ensure that the giving of the powers—and it will be for the police to give the powers to the Army—will be done very sparingly and in circumstances in which the security situation requires them; when there is a need on the ground. Therefore, I do not think there is any need for worry on the part of the public.
I do not foresee a situation in which, after the passage of this Bill, we will be held up by soldiers whenever we drive around the country. The situation will continue to be exactly the same. The Army will be called out, in aid of the civil power, as they have been heretofore. There will be police presence at road blocks. If the Garda think that in a situation which they see developing the Army should have the new powers, a requisition to that effect will be made. The Army will then come out and will be in a position at road blocks in the same way as they are at present. Certainly, it would be the intention always to have a garda present. But, as I have indicated, because of the difficult nature of this terrain, the extended nature of the Border and our comparative scarcity of man-power resources, this might not always be possible. We have to decide whether it is better to have a military patrol without a guard and detect a terrorist or have the military patrol standing idly by and the terrorist drive off cocking his nose at them.
I do not think any citizen would want to see that situation but I regret to say that situations akin to that have taken place. At the moment a soldier has only the common law power of arrest when he sees a felony being committed or in similar restricted circumstances. This is to extend and make them effective when the Garda Síochána consider they want them on the scene with these powers.
I am satisfied that this limited power, exercised in this limited way, is a proper response and utilisation by the Government of the resources at their disposal in a time of emergency.
We are opposing section 15 of the Bill. The purpose of this section is to give power to the Defence Forces to arrest and search in certain circumstances. Since the debate on the resolution declaring a state of emergency all members of the Government including the leader of the Government have used the word "Army" rather than "Defence Forces". We now find that this has been a misuse of the Army in that members of the FCA will have the same power under the section as will members of the Naval Forces and the Army. The words "Defence Forces" are used here.
We are very gravely concerned and worried about the implications of section 15. As I said before, we are equally concerned about the motivation of the Government in bringing in the section in this Bill. In his defence of the Bill, the Minister did his best to say that the section is in response to the declaration of the state of emergency. This is not so, it is wrong. Everyone knows that this Bill has been ready since last March. It is not an emergency Bill; it will be with us permanently. The Minister said that this section was necessary because of the so-called state of emergency but if that is so, why was this section not in the Emergency Powers Bill? If it were in that Bill, it would have a limited life span. It would automatically lapse when the emergency legislation lapsed or when the Houses of the Oireachtas declared that the emergency was over. This is permanent legislation and it is intended that this Bill will remain on our Statute Book as part of the substantive criminal law of the State.
That is one of the reasons we are opposing this section. If the Government insist on having this section in the Bill, I want to give the House notice that on Report Stage we will have some amendments. We will strive to ensure that this section will remain in operation for 12 months only unless it is renewed by resolution of the Oireachtas for a further period of 12 months.
The present situation is that the Garda Síochána can call on the Army for assistance. Where this is likely to occur, particularly in Border areas, if an incident occurs the garda on the spot can call on a contingent of the Army to give the assistance the Garda officer considers necessary and which he requires. The basic functions of the Garda Síochána and the Army are totally and absolutely different. Because they are different functions, the Army and the Garda have different traditions and training and different roles to play in the administration of justice and in the keeping of the peace. The Garda Síochána are justifiably proud that they are an unarmed police force. Everyone knows they do not wish to become an armed police force. Indeed, a great degree of the public acceptability of every member of the Garda Síochána has been that during the years the public have come to accept them as an unarmed police force. I have no doubt that this general acceptance by the public of the Garda Síochána as an unarmed police force has much to do with the success of the police in their dealings with the public.
During the course of the debate here this morning the deputy Leader of Fianna Fáil, Deputy Brennan, expressed a view which many share, namely, that the people generally have co-operated with the Garda Síochána at all times even when they knew the police did not have powers. Because the Garda Síochána were so acceptable, when ordinary members of the public were stopped and asked if their cars could be examined and checked they responded magnificently.
By definition the Army was founded under a completely different concept and it is to be, and should be, used for different purposes. I have pointed out before that the Army is the ultimate line of defence which any country must have to protect its geographical and national integrity. Any member of any army is a person who, in the normal course of events, is issued with a gun. Members of our Army are issued with modern high velocity and high calibre weapons. The function and purpose of having a gun is that if the occasion requires it can be used. If it is used the person on whom it is used is liable to be injured, disabled or killed.
The first matter which should give this House and all Members reason for thought, particularly the Minister charged with looking after the laws of the country and the protection of the citizens, is that practically every member of the Garda Síochána is completely and utterly opposed to the powers being given to the Army under this section. These views must be given the most serious consideration by all Members of this House, particularly the Government.
The Minister and the Government have said that a state of emergency exists. They told us that it was necessary for the Houses of the Oireachtas to pass a resolution to that effect, even though a senior member of the Government, the Minister for Foreign Affairs, has described the emergency as just a technicality. Even if the state of emergency did exist and if the Minister genuinely believes it, his first consideration should be to the general public, that they will respond to the declaration of the state of emergency and that they will give the security forces, particularly the Garda Síochána, far more co-operation and help on a voluntary and on a totally free basis. The public will totally accept the Garda Síochána who must perform their own duties but it is not certain that they will give the same degree of acceptance to the Army when they have to perform functions properly the preserve of the Garda Síochána.
It is not enough to say that any law-abiding citizen will give automatically to the Army the same degree of support that he is prepared to give to the Garda. One can envisage situations in which innocent people driving home at night would resent being stopped, questioned and searched at the point of an automatic rifle and possibly by very young members of the Army. These people would not be likely to have any objection to being stopped by a member of the Garda and questioned about themselves, their passengers and their cars. Members of the Army performing these tasks would not be likely to have any training in this type of contact with the public. In saying this I am not complaining in any way about the Army. I do not think that in the circumstances envisaged in this section any member of the Army would go out with an intention of creating ill will among the public. However, I consider the Minister to be imposing an improper and unfair burden on them by asking them to carry out functions which are not really theirs.
The Minister for Justice and the Minister for Defence may well tell us that the Army are prepared to assume these functions, that they are prepared to accept any criticism which their acts may bring about. I accept totally that the Army are prepared to assume any functions imposed on them by the Houses of the Oireachtas but this is not the point. The point is that at a time when the Minister says it is necessary to declare a state of public emergency, he is using the last line of defence within the country—the Army and the FCA—and that as a result of what we fear may happen there may result the denting and blunting of the overall effectiveness of the Army by reason of the general public not accepting armed soldiers operating in an area which rightly is the preserve of the Garda.
We are very strongly of the view that this section, if it is to be brought in at all, should have been included in the Emergency Powers Bill but if the Government insist that it is to remain in this Bill, we shall propose during the Report Stage that a time limit be imposed on the life of the section. We shall propose further at that stage that if the section comes into force only the Minister as the one answerable to this Parliament will have the power to operate the section.
The Minister has taken some trouble to assure us that there will not be an armed police force in the country but this assurance cannot be accepted if we are to have the Army and the FCA working without the supervision of the Garda in carrying out duties which properly are the duties of the Garda.
This party appreciate fully that there are difficulties in relation to security operations along the Border. We appreciate that there is a great strain on the number of personnel available in this regard and we are aware fully of the responsibilities of the security forces in that area. However, we do not think that the way to tackle the problem is to put into permanent legislation a section of this nature. It is a provision which is wrong in principle and which will do far more harm than good.
During the course of the debate in the past couple of weeks we had the odd contribution from members of the Fine Gael and Labour Parties and from these contributions one got the impression that under section 15 the Army can work only in conjunction with the Garda. This is not so because having been called out by the Garda, the Army will be left to do a job of work. A few minutes ago I understood the Minister to say that in the ordinary course of events we will not see members of the Army performing Garda duties. In this regard I might say that as an ordinary citizen driving from my home to this city, a journey of 165 miles, I see more members of the Army than I see members of the Garda.
This section is not here because of the so-called state of emergency. It was mooted by the Government, not between the time of the deaths of the British Ambassador and the civil servant and now but many months ago. It has been included in this Bill, a Bill which could have been taken in June last or left until the House was due to resume in October. Therefore, there is no point in the Government endeavouring to tell us that the section is put forward for the purpose of dealing with the emergency situation which they say exists. If it related to the emergency which the Labour and Fine Gael Parties—sorry, the Fine Gael Party—say exists——
Which some of them say exists.
——it should have been in the Emergency Powers Bill. We are opposing the section and will vote against it. In addition, we shall table amendments for Report Stage on the lines I have indicated.
We do not like this section. I agree with Deputy Collins that at least one would have expected it to have been included in the Emergency Powers Bill but we know that it was drafted some time before there was any thought of declaring a state of emergency. This is rather ominous and gives credence to the opinion that it is merely a device to supplant the Garda and to avoid Garda recruitment.
Whether these are the motives that led to the insertion of this section, it is objectionable to the people. Bringing armed members of the Defence Forces on to the roads and giving them police duties creates a war atmosphere which is abhorrent to our people. They are being given police powers which have been given to the Garda under section 8 to hold people up, to search people, cars, boats, aeroplanes and to use "reasonable force" if necessary. They can arrest people and do everything the Garda are permitted to do under section 8.
God forbid there should be a situation when it would be necessary to give these powers to the Defence Forces. In present circumstances the Government should at least consider deferring the operation of this section until it became necessary. Part of the emergency legislation package will expire on a certain date and the greatest distance any reasonable Opposition would be prepared to go is to provide that the Minister would operate this section by order of the Oireachtas. Importing it into perpermanent legislation is wrong. It could be understandable that the Government would want to give these powers to the Garda, however the justification for that is exaggerated.
At the moment we find that at police checks the Garda are supported by members of the Army and although they give the fearful appearance of war, carrying arms, the Garda presence minimises it somewhat. But the appearance of members of the Army on their own carrying firearms at the ready creates an atmosphere of war which we have tried to keep away. In this, we are going a long way too fast to do something that is not necessary.
When the Minister was explaining this provision he revealed that the numerical strength of the Garda on occasions might not be sufficient to deal with a given situation. I suggest that that is the real cause for this section. One garda accompanied by a number of members of the Defence Forces can carry out a number of duties and this would enable the strength of the Garda to meet any imaginable situation. As some of us painfully know, there is a vast difference between being approached by an unarmed policeman and a number of members of the Defence Forces with firearms at the ready. Some of us who visit the North have become accustomed to this climate of war and trouble. It is a horrible atmosphere which we should try to avoid for as long as we can.
As I have said, because this legislation is not part of the emergency package, this part of it should be brought in only by way of order debated by the Oireachtas, and it should be only of a limited duration. The Army can be brought in at the request of a Garda officer not below the rank of chief superintendent but the period of the operation is not specified. It could be open-ended. It could be for a week, a month, a year. The Army during this period can if necessary use what is termed "reasonable force".
What an armed member of the Defence Forces would regard as reasonable force as compared with a garda is open to interpretation. It is left entirely to the persons carrying out these duties. I do not cast aspersions on members of the Defence Forces, but will they be trained for these duties or are we to send out the FCA in the role of B Specials to carry out duties for which they have not been trained? What will the set-up be if the Minister does not accept an amendment and this becomes law?
A situation might arise when it would be necessary to call in the Army but that situation does not exist now and the Minister should be prepared to accept an amendment to the effect that this will not be done until a draft order has been debated by the Oireachtas. That is as far as any reasonable Opposition would be prepared to go in regard to such a dangerous and objectionable section. I do not think either the Defence Forces or the Garda want this. I suggest that this is merely a device to obviate the necessity to recruit more gardaí. This is a device to have police work done cheaply by members of the Defence Forces. It is a dangerous precedent and one which should not be embarked on unless it can be shown to be absolutely necessary.
I should like the Minister to show the same consideration as he did for amendments suggested by the Opposition yesterday for the reasonable amendments we have in mind for Report Stage, and to put the section in abeyance until such time, if it ever arrives and we hope it will not, when such powers might be needed.
First of all I should like to debunk and to take exception to Deputy Brennan's suggestion that this section is intended to obviate the necessity for Garda recruitment. This is a simple matter of statistics and facts. One senior Garda officer might feel the right number of police should be 8,000. Another senior Garda officer might have an opinion that the number should be greater. Whether you pick 8,000, or 12,000, or 13,000, or 14,000, the fact still remains that, on an occasion such as the murders at Glencairn of the British Ambassador and Miss Cooke, the necessary manpower would not be available.
We have 14,700 Army personnel available around the country. States far larger than this State, with far lesser problems, have the tradition that, when there is a problem that cannot be dealt with by the police force, the army are called out. In America they have State troopers. In Germany they have a squad which deals with riots in cities. In various countries much larger than ours this is a fact of life. Whatever is a reasonable assessment of the proper number of Garda spread out all over the country doing ordinary police duties, that number is not sufficient when it comes to the point of having to deal with an act of subversion such as the murders I have just mentioned.
In that sort of situation if it is our ordinary democratic decision to call out the Army to supplement the Garda, we must call them out in a very measured way. Deputy Brennan said it was intimidating when, as he passes through Northern Ireland, army forces come and interrogate him in his car with loaded weapons, perhaps, in close proximity to him. Of course that is so. It is important to say that the powers being given here have no relation at all to the powers given to the British Army in Northern Ireland. They are merely powers of search and arrest. The Army are called out by the Garda, as has been pointed out by the Minister for Justice when, in their wisdom, they decide that is necessary.
On the occasion of the murders at Glencairn it would have been necessary to have checkpoints at a huge number of points on the roads. Because Dublin city is right beside that location, and because the countryside to the west and south is available for escape, a huge number of people would be required. At present for the Army personnel to have any powers at all, they must be accompanied by at least one garda. That means their efficacy is completely restricted. Happily we have brought them up to 14,700 from 8,900 when this Government took office. Happily many of them are now well out of recruit training and are seasoned men just like young gardaí who are three years out of Templemore. We can put these people out, by direction of the Garda, to do checkpoint duties on all these roads.
The question the Opposition must pose to themselves is: are they whole-heartedly against subversives or are they not? Are they prepared to go the whole way with all the agencies of the State and fight subversion with everything we have within the limits of proper democracy, or are we to fight it with one hand tied behind our backs?
Within the limits of democracy?
Within the bounds of democracy. I have pointed out that much larger nations than ours with a normal police force—about which I could not agree more; the Opposition can argue as to whether it is too small or too large——
Considerably outside the bounds of democracy.
I did not interrupt the Deputy. Much larger nations find it necessary to call out the army to provide services when there is an extraordinary spate of crime. The emergency which exists at present is there because—and this is the mildest way it could be put—of the extraordinary spate of subversive crimes.
The Government want to ensure that the relevant Garda superintendent can ask for services from the Army when the number of police he needs to do the work he wants done is so restricted that he cannot put one policeman with every four or five Army personnel, as was described by Deputy Brennan. That is where he laid the egg which I am now going to hatch out. We intend that there shall be a plan whereby the Army can go to specified crossroads and specified places and do certain duties, all agreed before through plans and operations of the Army, and all agreed before and organised before with the Garda, so that these villains cannot escape and so that there is a much greater chance of apprehending them and bringing them to justice. Do the Opposition want that to be the situation or do they not? They have to make up their minds about that.
I want to comment on a rather odd statement made by Deputy Collins which he did not attempt to substantiate. He said this was all given birth to many months ago. What does he mean by that? I know of no instance at Government meetings or anywhere else when this proposal was mooted many months ago. I know of no instance when it was mooted publicly many months ago. I know of no instance when it was mooted in this Parliament many months ago.
I want to make something else quite clear. Throughout these debates during the past fortnight, the Opposition have been trying to suggest that the murders at Glencairn were an isolated incident and that, as a result of that isolated incident, the Government suddenly over-reacted. If they go to the Taoiseach's speech introducing this parcel of legislation, they will find he said the murders at Glencairn were the culmination of a spate of terrible crimes which have gone on over the years. They were not even a flash point. They proved the necessity for emergency legislation. I do not know what Deputy Collins means by "many months ago", or whether he is trying to imply some sort of illicit dealing or underhand thinking by the Government. I should like him to tell me what he means in that regard.
I was a bit shocked to hear Deputy Collins saying citizens would not give the same co-operation to our Army as to our Garda. Since I became Minister for Defence, and before that, I have been quite clear in my mind that the great majority of citizens have a great degree of affection and respect for the Irish Army. If there has been any odd, queer thinking in relation to the Irish Army, it has come not from this side of the House but from the Opposition. Perhaps there are historical reasons for that. I do not know. When I meet people all over the country they are absolutely delighted when an Army person does well in some athletic contest. They are pleased to see the Army on manoeuvres, like to meet Army personnel and ask me about the Army. In my view there is a great respect for the Army among 90 per cent of our people.
I have no doubt that on the very special occasion when a crime is committed which needs a much greater degree of manpower and the Army are standing on their own at a checkpoint and ask a decent citizen where he is going and for permission to search the boot of his car they will get the same reaction a garda would get if he asked the same question. They are our Army and they typify our proper patriotism—there are many degrees of patriotism here at present—and I have no doubt they will get full co-operation from our people. In relation to what has been said about training of the Army for this work I should like to state that the Army have gone out with gardaí on thousands of occasions in the past year. They provided bomb disposal services and one NCO and five soldiers acted with one garda at checkpoints on 7,500 occasions last year.
We have a different system from the British. We instruct in detail at least once a month. An officer is instructed by the legislative division and he instructs ordinary NCO's at least once a month but on every occasion that a batch of men leave barracks with the gardaí they get a short two to three minute instruction on their duties, their powers and their responsibilities. I will not go into the details of that system because it would not be correct to do so but we believe it is a better system than the British one. Under the British system a yellow card is put into a fellow's tunic with his instructions and he is meant to know everything on it. Therefore, to some extent one throws away the responsibility of the senior officers and one's political responsibilities in as much as one gives the soldier a yellow card. Our system is more detailed, is better and produces better results. The experience over the last number of years on instances that have occurred proves that.
There is no question of the Army being used as bully boys taking over police duties or anything like that. When the superintendent of the day in the situation as it is needs certain services he can ask for them. They would have been planned before. Would we not be a silly State if we had 14,700 men all fit and well, men who joined the Defence Forces with proper patriotic ideas, all well trained and indoctrinated with proper patriotic ideas, if we did not use them against people who have murdered 1,600 people and injured 18,000 in the last seven years?
One wonders whether one should get back to the provisions of the section or whether one should comment on the statements made by the Minister for Defence. I should like to put a few questions to the Minister for Defence and he can deal with them subsequently. That Minister said that normally what is done when the Army are called out is that they get a two to three minute instruction and that they find this more effective.
They get that instruction on every occasion but they get a much more detailed instruction at least once a month.
That may be.
That is not may be; that is.
That system which the Minister announced relates to the existing power of the Army when they are called out in support of a civil power?
The Minister must accept then that that is a different position entirely to the Army being called out or requested by the chief superintendent and acting on their own. I should like to know from the Ministers for Defence and Justice what regulations will be made, what guarantees and restrictions will be applied not just for the convenience of the Army, not just so that it will be done better than it would be by the British Army but for the protection of the public in the discharge of this new function of the Army. The Minister talked in a bland and general way about other more powerful states doing this. Of course, they do but he will find that many other more powerful states have a role for the army that we do not have. Equally, they have a role for their police that we do not have. The American or German examples were not the best examples for him to quote because the police force in America is an armed one and ours is not. There is a definite difference between calling out an army in support of an armed police force and calling out an army in substitution for an unarmed police force. The Minister should take account of these facts when he throws such casual examples across the trail.
The Minister for Defence should stop talking about the Army. It has been clearly acknowledged this morning that we are talking about the Defence Forces and that includes the FCA but the Minister for Defence made no reference to the voluntary Defence Forces at all. We do not have to make imputations on any body, but we have to note the fact that this legislation will enable a chief superintendent to call any element or section of the Defence Forces, in this case it could be the FCA, to operate the powers given by virtue of sections 8 and 15. There is no point in the Minister saying he is thinking of the Army, that brave body of 15,000 men which he has referred to so consistently. I do not know how many are in the FCA or what training they have. I do not know what instructions they get or how disciplined they may be as a professional body of men, and the public do not know either but the Government are asking us to transfer these powers to them operating independently of any police authority.
I mention those points to show that the Government are not clear in what they want in this regard as was proved in relation to other aspects of this legislation, happily now amended. If they are not clear, it is our obligation to ensure that their minds are clear before this legislation passes through this House. I hope we can persuade them to drop the section or at least to persuade them to see the extent they are extending the role of the Army and Defence Forces generally and how they are introducing them into an area of ordinary police work that was never within the anticipation of those who established the Defence Forces. Certainly, it was not contemplated up to this time. We are not talking about emergency provisions; we are talking about the permanent criminal law.
I should like to take up the Minister for Justice on a number of things he said and ask for his response. He said that the functions now being transferred to the Army would be exercisable only in regard to subversive activities as indicated under section 8. "Subversive activities" is a phrase we hear more and more to justify the Government's stance on many aspects of this legislation. Some of the offences in section 8 cannot be defined as subversive activities exclusively. It is possible that subversives engage in those activities but the Minister will know that there are many aspects of the ordinary criminal law with no relationship to subversive activities. First of all, we have an offence under the Offences Against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act. That does relate to subversive activities. There is an offence under the Criminal Law Jurisdiction Act, 1976. There is murder, manslaughter, or an offence under section 18 of the Offences Against the Person Act, 1861. There are countless offences under those sections that have nothing whatsoever to do with subversive activities. Does the Minister accept that?
Does the Minister accept that the vast majority of charges brought in our courts in the history of this State, even for murder, manslaughter or offences under section 18 of the Offences Against the Person Act have nothing to do with subversive activities?
That is a different question but in the present context for which we are legislating many of these offences are terrorist offences. We are not legislating for 30 years ago.
The Minister thinks in terms of the present context. We are talking in terms of what we are doing here permanently to our law. What happens for the next 30 years is related to what we are doing here now. If the pattern of ordinary crime over the next 30 years is to be similar to the pattern of crime over the last 30 years, I say without doubt that ordinary criminal offences that have no relation to subversive activities will entitle the Army to act under the powers being given to them under this measure. The Minister cannot deny that. There are many people serving sentences at the moment for manslaughter in prisons which have nothing to do with subversion. One of the regular charges where a person who has been driving a motor car dangerously and as a result of which somebody has been killed is a charge of manslaughter.
It is not. The regular charge is dangerous driving causing death.
I have defended numerous cases where manslaughter was the charge.
Not numerous cases. The Deputy may have defended some but the general charge is dangerous driving causing death and it is only in exceptional cases that manslaughter is the charge.
I will accept the Minister's qualification that the regular charge is dangerous driving causing death, but the charge of manslaughter is still being brought. People have been charged with murder and have been convicted of manslaughter who have had nothing to do with subversive activities and the Minister tells us that this section is concerned only with subversive activities. Offences under section 18 of the Offences Against The Person Act, 1861 are the offences generally referred to as wounding with intent or malicious wounding. There is no doubt that there are a large number of people serving sentences in Mountjoy or elsewhere on conviction under this Act. That is now being included within the scope of the powers being given to the Defence Forces. The Government will have to clear their minds much more than they have done when they ask us to accept legislation of this sort.
The Minister for Justice this morning referred to the powers which the Garda would be giving the Army under this section. The police do not give any powers to the Army. They have no right to give powers to the Army. They create a position where the Army discharge powers that we give to the Army. The Garda do not confer any powers on the Army and both Ministers here will acknowledge that. We as the people who are giving the powers cannot hide behind what the police, the Army or the Defence Forces may do. We have to look to our responsibility and see how we can control and regulate the use of the powers we are giving to them. Did the Government consider that under this legislation they were extending powers into the area of ordinary criminal law that was never anticipated to the Army? While the Minister for Justice may say that we are not concerned with the last 30 years, I feel that we are, as those years indicate a pattern which will probably give us a fair indication of what the next 30 years will be like apart from subversive activities.
There are areas in our cities for which the Minister for Justice has a very special obligation, where violent crimes are an unfortunate pattern and are on the increase. The Minister will have to recognise that he will need to get at the social causes that are breeding grounds for these crimes of violence. The Minister for Justice may say that hopefully the next 30 years will not be like the last 30 years but to judge from the present pattern my view is that they will be worse unless the Government take some positive steps to eradicate the causes. These crimes of violence, malicious wounding, manslaughter, or anything else are coming within the ambit of powers given to the Army. The Minister asks the rhetorical question: would we not be foolish Government—I think that was the word he used—with these 14,000 fine young men if we did not use them? With that kind of mentality on the part of the Minister for Defence, is there any reason why we could not say we would be a foolish Government not to use them to the fullest extent under these powers in the ordinary area of criminal activity?
"Silly" was what I said.
We would not want to rely too literally on what the Minister for Defence says because he is the one who told us we would be wasting our time discussing this at all; not one iota would be changed. Has he, I wonder, any comment to make on that now?
I will make it later.
I will give way to the Minister if he wants to make it now.
If the Deputy reads the section, he will see there is no material change in the wide world.
Did the Minister's colleagues not take him into their confidence? We will have to forgive him. We do not take what the Minister for Defence says too seriously.
There is one Deputy in possession, Deputy O'Kennedy.
The Minister for Defence has fooled everybody. Nothing has changed. The Minister for Defence is right. Maybe Deputy Blaney was right. I think what the Minister for Defence actually said was that to have such a force and not utilise it would be negligent on the part of the Government.
It was I who said that.
Apparently the suggestion is now that these young men in the Permanent Defence Forces are not being fully availed of and the normal unarmed police force is under pressure and so we should call in the Army simply because the Army are there and do not have enough to do; they are not at full stretch like the Garda.
We come back then to the point we made at the beginning of this package. If you are short of manpower, the way to cure that situation is by recruiting more gardaí and giving them the special training normally given to a civilian police force, with full awareness of the limitations on their powers and of the tradition, which is something you cannot give by way of specific instruction in two or three minutes, to quote the Minister for Defence built up over the years in regard to the way in which that force will exercise its powers. That is why we say a civilian police force is the only force which can properly be given the powers now being transferred to the Army under this section. Remember, these powers were not even possessed by the civilian police force up to this. We have accepted the need for giving these powers in certain circumstances, with qualifications.
The Minister for Justice made an extraordinary statement this morning. He said: "I do not envisage any difference in the scene by virtue of the introduction of the Army". Could anything be further from reality? The position now will be that the Army can appear independently and exercise powers which up to the passing of this Bill the police never had. It is very important to recognise the powers that are being given to the Army under section 8. They will be able to search vehicles and the people in those vehicles if they have reason for believing they have committed an offence or are likely to commit an offence. Up to this moment our unarmed police force did not have these powers. Now we are giving these powers to the Army and the Army will operate independently once they have been requested by the police.
The Minister for Justice is apparently so blind that he can see no difference as between the police operating under existing powers and the Army coming out on our roads with completely new powers. It should not demand any great imagination to see the very considerable difference. Those of us who find ourselves in the vicinity where an offence has been committed will henceforth find ourselves stopped by the Army independently of the Garda Síochána. This is something the Government should consider. I pass by Portlaoise going to and returning from Dublin. Offences, like escaping from prison, have been committed from time to time in the vicinity and henceforth I and other citizens travelling along the road will find ourselves stopped by the Army. This will create very serious hazards. Their training is not such as to qualify them to act as a civilian police force. They are an armed force and the less we see of them on our roads in the course of our daily activities the better we like it and the better it is for the welfare of the State. Under existing laws we have accepted the presence of the Army in support of the civilian police force in certain instances but we do not want to see these young men being called out simply because they are available and because our police force is apparently inadequate in both personnel and equipment.
The Minister for Defence said—I do not see the logic in it—that after the murders of the British Ambassador and Miss Cooke it did not matter how many gardaí you had you still would not have enough to man road blocks and so on. If we have so many men available in our Defence Forces, I can see no reason why we should not increase the number in our civilian police force to enable them to discharge their particular functions.
I had been referring to one phrase of the Minister in the course of his introduction to this section this morning. I see he has gone again and there is no point in repeating it in his absence. This section is a major change of the existing law. It constitutes a major change in the functions of the police and of the Army. One does not have to say anything critical of the Army or of the police to note that these changes have to be introduced with great caution, after considerable thought, and must be regulated very strictly. For the first time we are introducing a situation in which the Army, admittedly after request, and that is the only qualification there is, from a chief superintendent of the Garda Síochána, can operate independently of the Garda not alone in relation to subversive activities— on which the Minister seems to rely— but also in relation to numerous offences which may have nothing whatsoever to do with subversion, whether manslaughter, wounding with intent—unfortunately, the kind of offences with which we have all become too familiar in more recent times than we were, say, ten years ago. We are also all too familiar with them in our courts. I would venture to suggest that before this era of subversion got under way approximately 40 per cent of those serving sentences for any appreciable term in our prisons were people who were detained under the Offences Against the Person Act, 1861, those serving longterm imprisonment for manslaughter or murder.
This Bill proposes to give these powers to the Army, powers which, up to the passage of this Bill, even the Garda did not have. The Garda never had powers to search vehicles or people in vehicles whenever they had reason to suspect, with reasonable cause, an offence had been committed. If the Minister will look at section 8 (2) it says:
(2) Where a member of the Garda Síochána who with reasonable cause suspects that an offence to which this section applies has been, is being or is about to be committed requires a person to stop a vehicle with a view to ascertaining whether——
These are powers being given to the Army under section 15 when this Bill comes into operation. It might well happen that the ordinary motorist going his way along the roads can be stopped by an Army patrol because of an offence that comes within the ambit of section 8. It might well have been an offence of having been in contact with a firearm, but it could also have been an ordinary offence of manslaughter or malicious wounding under the 1861 Act. A person who was in no way associated with that offence, who happened simply to be in a vehicle somewhere adjacent to the scene, can be stopped and put through all of these rigours, not by the Garda but by the armed Defence Forces and that includes, repeat, An Fórsa Cosanta Aitiúil. What training have they to undertake such an exercise?
At the risk of repetition, it is not good enough for the Minister to say: "Oh, it will not happen that way", or: "We will ensure it does not; does everybody not know that is not going to happen anyway"? All we can rely on is what the Bill says, and it refers to the Defence Forces, the Offences against the Person Act, 1861, manslaughter and murder. Therefore, this power can be brought into operation under those sections.
We have justifiable cause for concern particularly in view of the statements made by both Ministers that what one must do is maximise the personnel resources available. That is a fair summary of what they have said. Therefore, if one has these resources available in the Army or police, one must maximise them, use them to the best advantage, utilise them fully, irrespective of whether the surplus happens to be in the Army or vice versa. That is bad law. It is bad practice. It is just too bad that we have to pay the price of the Government's economic problems and mismanagement by introducing the Army into a police role instead of recruiting sufficient people into the police to do the job for which they have been trained and qualified. We are not here concerned with maximising the personnel available to us for the purposes of the Minister for Finance or of anybody else. We are concerned with employing the police in an unarmed police role, the Army in an army role, in support of that role. If one wants to increase recruitment to the Army or police, by all means do so. In doing so the Government certainly would have the support of this side of the House. It has been put on record here by our spokesman. In fact, that is what we called for by way of amendment to the emergency resolution. Therefore, we are committed to supporting such a move.
In relation to the Army role in all of this, everybody knows at present that the main concern of the ordinary citizen, doing his ordinary job, living his normal life is normal security; not in the sense of national security, personal security. That is the main concern of many of our people living in the suburbs, towns and elsewhere.
Going back to the Larceny Act, 1916, section 23 brings the role of the Defence Forces into focus again. Basically that is the section which creates the offence of robbery. We are all aware that there is too much robbery taking place, particularly in our suburbs, about which people living alone are very concerned. They want to see police presence to guard against an increase in crime. There is no better way of doing it, as some neighbours living close to Ministers living in Dublin will testify, than by police presence. Recently when the Minister for Foreign Affairs moved house from, was it, Goatstown to Belgrave Square, the neighbours in Goatstown were very sorry to see him go because it meant the police went with him. Those in Belgrave Square were very happy to welcome him because it meant the police came with him. That in itself proves the case that police presence is what is wanted to guard against such things, not Army presence.
If one is talking against robbery, we do not want to see the Army, armed or otherwise, even having the power under this statute which the Minister sets out in section 8. We do not want to see them play that role. It is not enough for the Minister to say: "Oh, they will not. Deputy O'Kennedy is being unreasonable and taking debating points." When the Minister introduces it in legislation, then I am entitled to criticise it, not merely by way of debating point but by way of pointing out that now we, who relied so much on an unarmed police force and who think we need more of them with better equipment, must register our protest against the right of the Army, an armed force, to be called in in that situation simply—if I might quote the Minister for Defence—so that the Government would not seem to be silly not making use of this magnificent squad of young men. Did he say indoctrinated?
I said: "We would be a silly State." The Deputy keeps using the word "Government". I said: "We would be a silly State not to use the 14,700 young men."
But he did use the word "indoctrinate". I wrote it down.
Certainly, but I said: "silly State".
Of course, the Minister knows what that means? Does he?
I did not refer to indoctrination in regard to the Army. I referred to the indoctrination of young people to join the IRA.
No, Sir, I think the record will show that it was the Army to which the Minister was referring at the time. We can have a group of indoctrinated young men carrying out tasks which it is not their function to do. One may assume that 97 per cent of the fears I have expressed will not be realised but even if only 1 per cent is realised that is something this party are not prepared to concede. Even if none of the fears is realised, the fact that the Government are so oblivious as to introduce this function for the Army is cause for concern.
If we are to see more of the security forces on the streets protecting the normal civil liberties and the security of our people, we want to see that role as much as possible given to the police force that has been created to deal with such matters. As much as possible we want to see the Army confined to the role they are well equipped to do, namely, securing the safety of the State in a different sense rather than interfering with the functions of the police. The Minister on reflection should give way to our opposition to this section.
Those of us who have some little experience in this House and in the Army do not like to see legislation of this kind being written into a Criminal Justice Bill. As an ex-member of the Defence Forces, I admit there is a case to be made for calling in the Army in certain circumstances. Members will recall the time when Mr. Moran was Minister for Justice when he introduced into this House a Criminal Justice Bill that was kicked out by the then Opposition. They were such liberals at that time they did not want law and order; they kicked out the Bill and the then Minister had to withdraw it. If we had that law it would have been a considerable help in dealing with disorder and with the petty crimes that have taken place in the meantime.
It is regrettable that we must have this legislation but given the circumstances in which it is introduced one can admit that there is room for it. What Fianna Fáil object to most strongly is the manner in which it will be administered. The main point at issue is that at the behest of a superintendent the Army can be called in. Long ago the phrase "he called in the cavalry" was frequently used and perhaps this is what will happen in the future.
It is open to question whether a superintendent should have this power. We believe it should rest with the Minister responsible, the Minister for Defence, in conjunction with the Minister for Justice. He could come to this House with a proposal or if he wanted legislation by order he could make the order and place it before the Dáil. We object to the shortcuts being taken in this matter. We accept that it is the obligation of the Government to preserve law and order but they also have an obligation to preserve human rights. Almost invariably the two obligations are in conflict in the times in which we live. To enshrine in our permanent legislation the calling in of the Army at the behest of a member of the Garda Síochána is going too far even in our circumstances. The power should be left with the Minister for Defence in conjunction with the Minster for Justice. There is nothing wrong in that. It will not weaken the Bill or take from the powers that are there.
I submit that what the Government are proposing may prove to be a dangerous precedent. If the Minister for Justice were in Opposition today he would press strongly that what we are doing is short-circuiting the ordinary administrative justice and this can be a dangerous precedent even in an emergency. This is why we are asking the Minister to look at the matter again, not to put the House in the situation that we pass legislation that is later found to be bad law.
We have been blamed for preserving emergency legislation during the years but those of us who have lived with it and who were active in politics or in the Defence Forces realised that there was need for such legislation. That being so, we have come to accept that extreme laws of this kind are necessary in our circumstances but there must be a point at which we stop. If the Minister looks back he will see that during the years the law was balanced to a degree, that it could be said of the then Governments that they tempered the wind to the shorn lamb. There is no such element of care in this legislation. A superintendent at any place on the Border might call in the Army but he might do so in error. The Army bear arms and arms are dangerous if used in the wrong way. This could get us into serious difficulties later. As administrators it is our duty to do our best to frame laws that can be used in such a way as to bring balance into a situation. At the moment it is completely unbalanced. There is the ordinary criminal legislation in existence. As Deputy O'Kennedy said, the position has become untenable in the last few years. Regrettably house robberies have become an everyday occurrence. These crimes may be regarded as being petty and I am not blaming the Minister entirely for the situation that allows them to be perpetrated. But we must recognise that the situation exists. We must, then, go outside the bounds of ordinary law to appeal to parents to watch carefully the company which their teenage children are keeping thereby endeavouring on their part to bring about an end to the petty larcenies and robberies and to the muggings. We know that the Garda have been so busy dealing with other matters as to have to neglect the petty criminal side. This Bill is not merely to deal with emergencies. It is to become part of our permanent law. In these circumstances section 15 should have been framed within the context of the Emergency Powers Bill.
The Minister should reconsider this section. He should reconsider who should be responsible for calling on the Army for help in the first instance and, secondly, who should be responsible for the administrative side of their functions once they have been called in. I say this because a conflict could arise in this area. As I have said here often in the past in relation to various matters, Departments of State tend to be too isolated from each other, to be too introspective, rather than to be endeavouring to work together. I shall not harp back on that point. Suffice it to say that it would be much better if we had an inter-mixing whereby there would be special units in each Department to deal with general matters such as that which we are talking of here as well as matters associated with trade and commerce and so on.
It is unwise to over-work emergency powers. The function of government is, on the one hand, to protect the State and, on the other, to protect human rights. Although at all times in history the human rights aspect was overlooked to some extent it is something which is as important as the concept of the protection of the State. We should endeavour to accomplish a balance between the two areas and to achieve an acceptable degree of security in both areas.
There are many other elements of this section on which one could elaborate. We have sufficient experience of Northern affairs to be wise enough to frame legislation which would have the effect of advancing our prospects in the areas of peace and security. I am not finding fault with the general aim of the legislation but I am concerned with the methods being suggested to achieve those aims. This is a matter which should concern not only those of us here but also every member of the community. I appeal again to the Minister to reconsider the method suggested in the section for achieving the aims desired.
I wish to add my voice to what has been said by Deputy Collins. In the first instance I would ask whether this whole package has been introduced on foot of what, according to the Minister for Foreign Affairs, is a mere technicality. Have these powers been asked for by the Garda or are they being imposed on the Army by the Government? Perhaps the change in the role of the Defence Forces is one of the most serious steps that can be taken especially when the change is to be on a permanent basis. In this regard the statements from the Minister for Defence and the Minister for Justice are alarming in the extreme. We are told that the FCA are now part of the Defence Forces and, consequently can be called out to undertake the duties in question. The Minister for Defence has told us that only a two-to three-minute briefing will be given to personnel called on in these circumstances. Is this considered an adequate period of briefing for people unaccustomed totally to this type of work?
On Second Reading the Minister for Justice said it was only right and proper that a large uniformed disciplined force should be utilised to a greater extent by extending their powers to enable them actively to assist the Garda. He went on to say that members of the Defence Forces are to be given powers exactly similar to those of the Garda. However, this is not what is proposed. In addition to the powers vested in the Garda, the military will be in possession of firearms and will obey the orders of their superior officers. Therefore, there is a major difference in the powers of the military as set out in this section compared with the powers of the Garda.
Obviously, the Minister for Defence has not much grasp of the situation because he spoke of the problems of the Defence Forces, their activities and the nature of those activities in instances in which they will be called out. He spoke of a yellow card system but said there was no need for the pinning of yellow cards to the coats of the personnel involved. I agree but there is the over-riding factor that once the military are called out and posted their deployment can mean many men operating individually in a variety of places so that they would have to take it on themselves to make decisions since, in effect, they would no longer be under the command of a superior officer who, while they were dispersed on this type of duty, might be at a distance.
The House, and through it the public, must be made aware by the Minister of the type of duties that will be imposed on the military, the conditions to be observed in the firing of ball ammunition and so on. The public should be made aware of the circumstances in which the military can fire and they must be told that nothing but ball ammunition will be fired. The Minister must clearly outline the resulting danger from the additional powers given to the Army. Up to now we had an unarmed police force and there was a balance between security and defence, the Army playing a low profile role.
In the Bill a member of the Defence Forces may use reasonable force, and so on. Is that the sum total of what the Army may do? Does "reasonable force" mean the force of arms? Is there something hidden in the Bill in this respect? Paragraph (b) of subsection (3) states:
A member of the Defence Forces may use reasonable force in order to compel a person to comply with a requirement to stop a vehicle, and such force may include the placing of a barrier or other device in the path of vehicles.
We should be told what that means. If the military can use other force it should be clearly spelled out so that the public would be fully aware of the extent of the force that can be used under this Bill, which brings a new dimension to the role of the Defence Forces.
It was interesting to hear the Minister saying that the FCA would be part of the Defence Forces in this context. Will they be adequately trained for this work? Will there be special courses of training not alone for the FCA but for the regular Army who, according to the Minister, get only a two-to-three minute briefing by superior officers before an operation? Although the FCA are highly efficient, as are the regular Army, are they trained for this special work? We want the Minister to elaborate on this as well as to tell us the duration of the time of their service on such duties. Can we have an assurance that there will be some type of regularisation so that both Garda and Army will be on the same wavelength? We have seen the confusion that exists in other parts of our country and the resultant dangers. Paragraph (b) of subsection (4) states:
For the purpose of arresting a person under this subsection, a member of the Defence Forces shall have the same power to enter and search any building or part of a building or any vehicle, vessel, aircraft or hovercraft or any other place as a member of the Garda Síochána would have in like circumstances.
In regard to the powers conferred here, will there be further regulations governing the actions of the Army? We must be given a global picture of the implications of this, of the extent of Army intervention. We should be told that their role in this will be no more and no less than that of the Garda. Unfortunately, as we know, it will have to be more because the Army will be armed and they can use the force of arms. The public must be made aware of the extent to which they can use force.
The force the Army can use is contained in subsection (3). There is no need for me to read it into the record because it is already in the Bill. It does not include such things as breaking open a prison, or the burning and destruction of buildings, or such other matters as are covered by calling the Army out in aid of the civil power. Troops may be called out under this Bill who cannot enforce law and order in the same way as troops called out in aid of the civil power with a garda. The limitations may deprive the Garda and the State of the type of support this House agrees with, that is, troops being called out in aid of the civil power for the restoration of public peace in the manner duly described which has been in operation here for quite a considerable time.
Perhaps the Minister will give us some clarification on the points I have raised so that we can have a more detailed look at the entire situation. Under section 5 a person may be held in custody for up to six hours.
I am sorry to interrupt Deputy Dowling but we are dealing with section 15 and I am anxious that he should confine his remarks to that section and please avoid repetition.
A person arrested under subsection (5) of section 15 may be detained for a period of up to six hours. That is too long a period for the military to detain a person. In the North the military have power to detain a person for four hours. If six hours are added to the 48 hours and the additional five days, there is a further extension of the period during which a person can be detained in custody.
The Minister has made most alarming statements on the question of troops being unsuitable, the FCA, quite apart from the permanent Defence Forces who have not got the necessary training. Will they be trained at Templemore? How will they be trained? Will there be a coordination of effort? Will the Minister indicate the conditions which will be written into the Defence Forces Regulations so that Members of the House and the public will know the exact circumstances in which the Defence Forces will operate?
As most Deputies now know, we on this side of the House had two major objections to this Bill as presented in its original form. The first was our objection to section 3 and the sweeping and indiscriminate terms in which it was originally framed. Fortunately, the dangers we saw inherent in section 3 as originally drafted and put before us have now been obviated. We have already expressed our satisfaction at the change which has taken place in that regard, but we are still left with this last objectionable proposal. This was always our second major objection to the Criminal Law Bill.
We now come to what I think is our final confrontation with the Minister and the Government on section 15. If we could persuade the Government at this stage that this section should be dropped, and that they should bring the same change of mind to bear on this proposal as they did on section 3, we on this side of the House would be quite prepared to let the Bill go forward onto the statute book with a reasonably easy mind. As I have already said, there are aspects of the Bill which we do not particularly like, which we find distasteful and which, in normal circumstances, we would not tolerate for a moment. Now that section 3 has been amended and the dangers we saw inherent in it dissipated, we feel the Minister and the Government should come this final step with the Opposition and have a serious fundamental look at exactly what is being proposed here in section 15.
If they would meet us on this section, we could say to the people and to the nation that this Criminal Law Bill has the almost unanimous support of the Dáil. That would be a very considerable weapon for the Minister and the Government to have at their disposal in combating lawlessness and violence. I want to make that suggestion to the Minister now that he has moved a certain distance from his original position on this legislation. There is everything to be said from this point of view for going this final step with us and avoiding this final confrontation which, unfortunately, we see looming up on section 15.
Speakers on this side of the House have argued cogently and, to my mind, very decisively against the provisions of section 15. I have nothing very much to add to what has been said except to reiterate in outline our approach. First of all, there is the inexplicable aspect that the Government and the Minister are making this Bill part of our permanent law. That has not yet been adequately explained. In fact, no real attempt has been made to explain why this unusual and dangerous proposal has not been put on all fours with the emergency powers legislation, and why this power should not be expressed at the very least to be of limited duration, to be for a period of 12 months initially, renewable only with the consent of the Oireachtas expressed in some shape or form.
That is, perhaps, one of the most intimidating aspects of this proposal. It is to become part of our permanent law. There is no suggestion that it will be done away with when the emergency under which the Government say we are suffering at the moment passes. It will enter on our statute book as a permanent and immutable part of our criminal law. I do not think the Government and the Minister have made any attempt to say why this proposal should not be expressed to be of limited duration. I am reinforced in urging that argument by the enormity of what this proposal means to our community. It is a fundamental change in our society and in our way of life. It represents a very deep seated alteration in the type of community we had hoped to establish for ourselves in this part of Ireland. It is a fundamental far-reaching change and as has been pointed out it in effect vitiates the claim we could always make that we had here the sort of society where we could have an unarmed police force. We will no longer be able to claim that and we will no longer be able to say we can claim that in the short term, that when this present emergency passes away we will go back to the normal situation. We are, in effect seeking to legislate for all time without any limitation in time in what is proposed.
This is a very serious far-reaching change in the type of community in which we are going to live. The present situation which prevails in most Western democracies is the right one: there is an historical traditional separation of function and forces in the security area. On the one hand, there are the police who are responsible for the maintenance of law and order, for dealing with the public and combating crime. On the other hand, there is a different type of organisation, a different type of force, a military force, an armed force, which normally in parliamentary democracies is kept in reserve and has a very specific, limited constitutional function. That force is there to protect the State in time of war and protect the community from its foreign enemies and, in the internal situation, to be the line of last resort, to be the force that is only had recourse to when everything else has totally failed.
That separate distinct function has been traditionally reserved in the free democratic societies of western Europe for a long time. It has been built up over centuries and has been found to work satisfactorily. It is something I believe should not be interfered with except in the most dire, difficult and dangerous circumstances. I do not believe that we have those sort of circumstances here at present. On Radio Éireann the Minister said that in his view the Garda Síochána had the situation under control here. If the Minister wants to get away from that statement, we will accept his reversing of it. If it was something he said without having full advertence to what it really meant in the course of an interview that is one situation but he has not at any time during this debate gone back on that statement, that the Garda in this part of the country have the situation under control. If they have the situation under control, why is this fundamentally drastic step being taken?
I want the Minister to deal with that matter because it represents, as things stand, a very real anomaly, a real gap in the logic of this argument. I am not going to dwell for one moment on the idiotic statement of the Minister for Foreign Affairs because if one keeps talking as much and for as long as that man does one is bound to say something idiotic from time to time. I am not going to dwell for a moment on the silly statement that Minister made in Killarney, that this state of emergency was only a technicality. Fortunately, the Minister for Justice, in reply to a question put by Deputy Gerry Collins, swept that nonsense aside and indicated that this emergency in his view is not a technical emergency; it is a real emergency. At least the Minister for Justice has been consistent in that regard. We do not agree with what he says; we do not agree that there is a real war-like type of emergency prevailing here. To follow his own statement up he has said that in his view the Garda have the situation under control.
All that causes me to query specifically why this power is thought to be necessary with all the implications it has for us as a community. I mentioned the impression in some people's minds of a creeping militarism taking over here. Some people react very positively when they see the Minister for Defence posturing in war-like situations, when they see the Taoiseach appearing in armoured cars in other military-like surroundings. People have this sub-conscious feeling that there is in this Government this militaristic tendency, whether the Government are conscious of it or not. I am afraid this measure is going to accentuate and exacerbate that feeling in the public mind. If people get that feeling, it will be very dangerous and as far as the Minister for Justice is concerned the introduction of this measure will be counter-productive. As the Minister has stated, and as we all agree, if he is to succeed in combating lawlessness and illegal activities, then he must have public support in a physical and moral way. If people get the impression that there is some sort of military tendency in this Government and a wish to impose some sort of military regime on us, that would be very detrimental from the Minister's own point of view.
I genuinely believe that the Minister for Defence has not done any good in some of the contributions he has made. He interprets his role as Minister for Defence completely incorrectly and is inclined to do some crude old-fashioned sabre rattling. As Minister for Defence, his job is to be a civilian administrator of our Defence Forces. He should eschew all these military trappings. I make that criticism of the Minister for Defence in all good faith and I trust he will accept it as being made in good faith. I believe that the arguments against the Government proceeding with this proposal in total are overwhelming. As far as we are concerned on this side of the House if these powers were to be introduced on an expiry basis, if they were to be introduced and expressed as being of limited duration just as the other emergency powers are, it would go a long way to meeting our objections to them. We are also very worried about the way in which these police powers are going to be handed over to military personnel. It seems to us that once the chief superintendent requests the assistance of the military after that the military are on their own.
Once that request is made and acceded to they have, in effect, police powers. If there was some limitation on the time that that request remains operative, it would go some way to assuage our fears in that regard. But then there are two very intimidating aspects of the proposal. First of all, the law will be permanent. This provision in regard to the Defence Forces will be there for all time and, secondly, once an officer of the Defence Forces accedes to a request from a Garda superintendent, there is no limit to the exercise by him of all the powers normally given to the police—search, arrest and so on. I suggest that it would be acting in a very sensible and responsible way if the Minister either dropped this section altogether or limited it to a very considerable extent along the lines we have been suggesting.
Deputy Dowling has opened up for us a very terrifying vista. It seems that in this part of the country we would be in the same sort of situation in which, unfortunately, the people in the North have been for so long, with the Army in the streets using their weapons and having the powers of search and arrest. As time goes on we in this House will be involved in this situation. Questions will be asked about the actions of the military under this section. Allegations of all sorts will be made and Deputies will ask questions about the behaviour of our Army in certain circumstances. Can the Minister not see that we will have a very unhappy and undesirable chapter in our relations as a community with our Defence Forces? We will be brought into an entirely new situation in so far as relations with the general public, public representatives, and everybody else is concerned. Can the Minister satisfy himself that it is absolutely necessary and essential at this stage?
Nobody will be satisfied with the Minister saying that he thinks it will be helpful or desirable. This is such a serious fundamental step that the Minister must satisfy us that it is essential in the public interests and for the security of the State. We do not believe this and, therefore, unless the Minister can come forward with some specific proposal we have no option on this side of the House but to reject the section outright as it stands and to suggest that with all the new powers that the Garda have been given they should be well able to cope with the situation. This is the last crunch between us and the Government and if the Minister could be persuaded at this late stage that the sensible and reasonable approach which he took to section 3 should be extended to this section, we could wrap up this Bill and send it off to the Seanad with the almost total approval of the Dáil. That would be something of considerable assistance to the Minister and to the security forces in trying to continue their struggle against crime and lawlessness in this part of the country.
The Opposition has constantly over the last hour said things as if they were true, on the basis that if you say something often and convincingly enough people will believe you. Nothing has changed about the situation. Members of the Opposition have wanted to know why the Garda cannot be increased by 1,000 or 2,000 men. When we have the sort of crime that we have to combat, crimes such as bombings in provincial towns or in Dublin—38 people died in the bombing of Talbot Street, Nassau Street and Monaghan —a cordon must be set up involving thousands of men. If the police force was doubled and taking into account the police duties they would have and were spread across the whole Twenty-six Counties, you could not produce within hours the cordon that would be necessary in order to make these people believe that if they do any bombing again they will be caught. The only reserve of men we have to do this is the Army.
We have had a series of small niggling points as to what terrible things might happen. Deputy Dowling started by criticising the fact that before any group of soldiers goes out in aid of the civil power a few minutes' instruction is given to bring them up to date on the constant instruction they have been having. Last year there were 12,000 Border patrols of the Army, and 7,000 military parties were provided to give assistance at 11,500 checkpoints and in those joint Garda-Army operations a close harmonious situation has developed and a great friendship has been forged between the men and the officers of both forces. The Opposition will do more harm in our fight against subversion if they do anything to upset that harmonious relationship. We have the officers to instruct the NCOs and the men of the Army. Almost four out of five of the senior officers in the Irish Army have had service overseas in Cyprus and the Middle East in an exclusively peace keeping capacity. These men shed the highest of lustre on our reputation as a State and we are regarded by most united nations people as the best force that were there. The best officers that served with the United Nations serve with us and they have the duty in this horrible time since 1969 of instructing the NCOs and men in peace keeping duties. They have done this duty well. The fact that somebody criticises me for saying that they will have a few minutes' instruction before going out on any job is nothing but prevarication. The question of the degree of force and the presumption by Deputy Dowling that Defence Forces Regulations will have to be changed——
Would the Minister be worried if he had a fully qualified surgeon about to operate on him who was only given two minutes' instruction before the operation?
After constant and detailed instruction and after briefings that go on during the training and after the training of recruits, a short briefing is added before a man goes out, even if there is a bomb down the street. The short briefing is the thing that is picked out as being the only thing that happens, whereas it is nothing more than a debating point worthy of a secondary school.
Every operation is different.
Order, order, Deputy Dowling had a good hearing. The Minister without interruption, please.
The full instruction is there and the officers to instruct the men are there and have instructed the men constantly. Deputy Dowling for the second time during this series of debates presumed that Defence Forces Regulations would have to be changed. The first thing I want to say about these regulations is that they are regulations for the instruction of Defence Forces personnel under the Defence Act, 1954. They are founded on law. The Attorney General's Office, the military authorities and the Department have produced these regulations for the guidance of those concerned. Once this Bill is enacted there may be need for a change in phraseology, or there may not, in one or more Defence Forces regulations, particularly in regard to CS 1. The position legally is that, whatever changes are necessary, regulations as far as force and firing are concerned will remain totally unchanged. The position will be exactly as it is now. With regard to a person who meets an armed patrol, the only difference will be power to search and arrest, followed by a handing over to the Garda.
A new Defence Forces regulation will have to be made.
The Deputy presumes a new regulation will have to be made.
I say positively it will have to be made.
I do not accept the Deputy's contention that a new Defence Forces regulation will have to be made.
Under what regulation will they act? It cannot be CS 1.
There may be a change of phraseology in CS 1 or an addition to it but that change or addition will make no difference whatever to the present situation in relation to the use of force or the firing of ammunition.
That is bunkum. CS 1 refers to the restoration of public peace. Troops are called out to aid the civil power and, under this, the troops will not be called out on that basis.
Deputy Dowling must cease interrupting.
The Deputy is entitled to express his opinion. I am telling him what the position is and will be. The existing law will pertain. In regard to holding persons for six hours, the implication by the Opposition is that every person held will be detained for six hours. Nothing could be further from the truth. They will be handed over as quickly as possible.
To the Garda Síochána. If there is a murder committed and an area is cordoned off, and the Army happen to be part of that cordon and believe in their wisdom they should hold a suspect, the Garda will not be more than a mile or two away, if even that, and the Deputy knows that well. This will not be up on the top of Carrigtuohill. The Garda will be there. Six hours will be the absolute maximum. Every suspect will have to be released after six hours, if not handed over as quickly as possible to the Garda.
Where will the Garda be? They will be intermingling with the Army. The Garda will have their own check-points and they will be close to the Army at all times. That will be the position. It may not suit Deputy Blaney.
Interruptions are disorderly and will have to cease.
Deputy Blaney obviously does not like what I am saying.
I do not because the Minister is talking the greatest rubbish.
If I were coming through Dundalk and I was asked by a member of the Army to open the boot of my car I would do so. If he asked me to accompany him to the Army barracks and stay there, I would do so, because I remember that two people were killed and many injured in Dundalk some months ago and that demands from me that I shall not be so "uppity" as to refuse to co-operate with either the Defence Force or the Garda. Perhaps Opposition Deputies do not like what I am saying. I would put it to the Opposition that there is at the moment a great probability that these murderers will perpetrate further crimes and, because of the size of the police force, escape the consequences of those crimes. If we did not utilise the Army, with all the safeguards written in, we would be trying to fight these people with one hand tied behind our backs. We have to use all the resources of the State. This is the last resource. If people can get into Dublin and kill people and go out to Glencairn and kill the British Ambassador, a man under the strictist security with anything up to ten or 12 people on him, and not be brought to justice so far, to use Deputy Haughey's words, is this not the last resource? In my opinion it is and the State must bring in whatever resources are available to ensure such people are brought to justice.
I shall not refer to what Deputy Haughey said about my posturing and the Taoiseach travelling in an armoured personnel carrier. So long as I am Minister and the Army ask me out I shall leave my desk and go out. If a photographer takes a photograph of me talking to an Army officer, that is all right. I do not mind. If he does not take a photograph, I do not mind either. But Deputy Haughey went further and said we would have the same situation here as far as the military were concerned as that which exists in Northern Ireland. That is absolutely untrue. The military in the North have quite extraordinary police powers. They can do most things on their own, things that are not included in this Bill at all. If utilising the Defence Forces acts as a deterrent, and I believe it will, because the chances of being apprehended will be multiplied, then it is the duty of the State to utilise the Army and all the talk by the Opposition about small arms and so on just does not matter. What matters is that if there is another Glencairn not only will there be the maximum number of gardaí around Dublin to try to get these fellows before they get away out there will also be the maximum number of Army personnel.
The basis of this case is that the Opposition are not prepared to support this section because we believe it introduces the Army into a police role. The Minister for Defence says that he does not care what the Opposition say. We do not care what the Minister for Defence says if we believe this section will do what we think it will do. The Minister for Defence said our members keep on saying things as if they were true. Let me say to the Minister for Defence that we simply say things because we have concluded from a reading of the section that what we are saying is true. It may not be but we have got to speak to the belief we have.
We do feel that the role being given to the Defence Forces under this section can lead to their increasingly widespread use as a police force. It may not do so but we feel this can happen. This is one of the reasons we are opposed to it. In the last three quarters of an hour the House has heard quite a few former members of the Defence Forces speak against the use of the Army. On the other hand, earlier on, we heard the Minister for Defence ask the question: are the Opposition whole-hearted in fighting subversives? That is the kind of question that can make mischief in this House. Obviously, the Minister for Defence either would like the Opposition to be on the side of the subversives or he is asking the question so as to imply that, perhaps, Fianna Fáil are on the side of the subversives. It is no harm to remind the Minister for Defence that, at a stage when some of his closest colleagues were opposing security measures in this House a few years ago, the Army were playing a major role assisting the Garda outside this House in protecting it. There should not be any suggestion of a doubt about the attitude of our party on the question of subversion. The Opposition are entitled to disagree with a proposal without having their motives questioned.
We maintain that there can be only one security authority and that is the Garda. We believe that under this section the Army can assume an independent role. If that is so, we are not prepared to support it. We are in total agreement with the two Ministers opposite who said that in serious situation the State should use all the forces available to it. We believe that the use of the Army to aid the Garda in situations of short term emergency is one thing but to make the Army a permanent unit—as is done in this section— as part of a police force is quite another. It is that aspect we are quite firm in opposing.
The Defence Forces cover quite a wide field—the Army and, as members on this side of the House have said, the FCA. Quite obviously, also whatever naval forces and air services we possess are involved. It must be made clear to us that where the Army operate in their role of assisting the Garda there will be a Garda presence, that there will be no doubt that it is the Garda who are in charge. If the Minister is not prepared to approach it from that point of view, I am afraid we will not be able to support this measure.
A lot has been said on this section. As Deputy Haughey has said, it is the crunch section. I suggest there is no point in talking indefinitely on it. It is quite clear that we are not in agreement on the manner in which the Defence Forces may be used in these circumstances. We believe that the role of the Army is primarily in defence of the nation against enemies, foreign and domestic, as they say, but that the role of the Garda is one specifically to deal with criminal and subversive situations, that the Army should be supporting the Garda in that role. That is as far as we are prepared to go at present.
When dealing with section 8 this morning I expressed grave misgivings about the capacity and ability of members of the Garda Síochána to carry out the extra powers conferred on them by that section without inflicting grave injustice and oppression on innocent people. I do not share the complacency of my colleagues, Deputies Haughey and Brennan about that section. Under this section the same powers, which are global, are being given to members of the Defence Forces who, by training, tradition, education or vocation, are not equipped to exercise them. They never asked to be peace-keepers. They never asked to co-operate with members of the Garda Síochána when they joined the force. In every country in which the Army have engaged in this type of activity, the pattern has always been the same as in the North of Ireland. I have no doubt at all that, instead of achieving the results which the Ministers for Defence and Justice promise, this whole package will achieve the opposite and lead to further frustration, violence and terrorism.
Of course, we have received assurances from the Minister and the Government that this legislation will not be used oppressively. The very fact that these assurances are given is a condemnation of this legislation by the Government and Ministers. It is an admission on their part that the legislation is capable of being used oppressively. Otherwise, why the assurance that it will not? Of course, if laws can be used oppresively—I may now be quoting or paraphrasing somebody—then they are bad laws. This is one of the worst parts of the whole of this obnoxious legislation. Ministerial assurance is no use. We had ministerial assurances at the beginning of this debate, now almost three weeks ago, that we would have ample time to debate this matter fully. We had a shameful example here last Friday of the worth of these ministerial and Government assurances. I want to protest now in the strongest possible terms at the treatment which I and some of my colleagues received at the hands of the Ceann Comhairle and the Minister for Justice who is apparently not listening——
The Deputy appreciates that he should not refer to the Ceann Comhairle in this way in his absence——
I am sorry the Ceann Comhairle is not here but I must make my protest now. It is part of what I am talking about, this suppression and oppression. Without even the slightest gesture of embarrassment or surprise and with indecent alacrity, the Ceann Comhairle responded to the request of the Minister for Justice to bring an end to the debate.
The Deputy will appreciate that criticism of the Ceann Comhairle, particularly in his absence, is not in order.
I cannot keep waiting. I have been here for the last three days and this is the first opportunity I have had to speak on the matter. I have not mentioned it now just because the Ceann Comhairle is absent from the House. I intervened in the debate in the earlier stages and I addressed myself mainly, if not solely, to technical matters which I considered important. I was concerned about the wording and the machinery of the Bill, about the nuts and the bolts of the Bill. I asked the Minister a number of questions which he failed to answer; he treated them with silence, if not contempt. For that reason I was anxious to make some contribution to the debate last Friday but I was not allowed to do so. The Minister accused me of collusion with Deputy Blaney in a filibuster——
The Deputy will appreciate that we are moving away from the matter under discussion at the moment.
It was a disgraceful performance. It caused an outcry and I hope that outcry influenced the decision of the Government over the weekend to have some sense and to see the light. I hope they will see the light in relation to this section also.
Subsection (6) puzzles me. It states:
A person effecting an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is effecting an arrest as a member of the Defence Forces because he suspects the person being arrested of being in the act of committing, of having committed or of being about to commit, as the case may be, an offence to which section 8 of this Act applies.
In all the sections in this and in the other Bill where the question of suspicion and cause comes in it is always prefixed by the word "reasonable". I should like to know why there is not an obligation on the person who effects an arrest under this subsection to have reasonable suspicion. What standard of suspicion is intended here? Is it a greater or a lesser standard than the "reasonable" suspicion referred to in other sections? Is it a defence for a member of the Defence Forces in a possible action taken against him for assault or for false imprisonment? That may be an unnecessary and naive question but it worries me and I should be glad if the Minister would answer it.
I support this section. As I listened to the debate this morning I found the Fianna Fáil position becoming more confused. If they have detailed objections or amendments I should have thought they would have disclosed them by now for Report Stage. It is appropriate that we should debate in depth a measure as serious as this and the House is doing so.
The points made by the Minister for Defence and the general information given to us strengthens the case in favour of the measure. I think all Deputies would not like to see a situation where the separate respective responsibilities of the police force and the Army would not be clearly delineated, observed and separated by the Executive. However, there are circumstances now, as there have been in the recent past, where bringing the Army to the aid of the civilian force is warranted and quite inescapable. Deputies should pay tribute to the several thousand of our troops who carry out Border patrols every day and night and the many hundred Garda Síochána in the Border counties who must undertake this appalling work. They do so at the risk of their lives and indeed some of them have lost their lives; I am referring to members of both the Garda Síochána and the Army.
It is remarkable that despite the large number of patrols undertaken in recent years—a figure of 12,000 was given—both the Army and the Garda Síochána have operated on this side of the Border with the total support of the local population. They are depending on that support in their security operations and, with respect to Deputy Blaney, we should not say anything in this House to put that support at risk. That is what we could easily do.
What support does the Deputy mean?
I am inferring that there are enough cowboys around from Donegal to Dundalk——
The Deputy should be careful about the cowboys.
I think we all know what I mean.
That is not what the Deputy said. He had not mentioned cowboys when I asked him what support he was talking about. How can he be serious in what he has said? Is he just acting the ass? Is it a case of a bob each way?
The Deputy need not worry about that.
The Deputy mentioned my name and I want to know what he meant.
I want to mention one key aspect that is a matter of concern, namely, the possible use of firearms in certain circumstances. Not being a member either of the Garda or of the Army, I am not aware of the precise regulation or of the circumstances in which the Army in such operations may meet force with force. One presumes that the regulations permit a degree of force based on the degree of force with which the Army are faced. However, there might well be circumstances in which special care should be taken if we are to devolve this power on the Army. I refer specifically to the possession of firearms in what one might regard as circumstances in which the use of firearms are not necessary. Can the Minister tell us whether the troops on all occasions will carry firearms and also what will be their orders in relation to dealing with situations in which individuals may not only try to resist arrest and to escape but to fire on the troops? I am aware of many members of the Garda who have narrowly escaped death or serious injury when fired on in such circumstances. There have been instances in which their car wind-screens were pierced by bullets. There are gardaí who consider themselves to have escaped death or injury miraculously on occasions. In relation to effecting arrest there may be some cowboys along the Border whom it would be difficult to hold for a couple of hours, let alone for six hours, especially if their associates are nearby. Some of them, should they come across the Border, are capable of taking on any army. The Minister has been reasonably reassuring but, perhaps, he would outline in more detail the circumstances in which, in particular, the use of firearms could eventuate.
In asking for these details we are conscious of the fact that it would be irresponsible of us as Dáil Deputies to seek information which might prove to be of direct assistance to subversives by enabling them to know when or when not to pull the trigger. Consequently, we appreciate that for security reasons the Minister may have to be circumspect.
Have not the ordinary citizens a right to this information?
I suggest that the ordinary men and women in this country are overwhelmingly in support of these measures. That has been the reaction I have got both by way of correspondence and verbally.
What about the Labour Party members?
These interruptions must cease.
One must distinguish between political prompts and reality.
Is the Deputy telling us that the members of his party are overwhelmingly in favour of this section of the Bill?
Deputies are allowed make their own speeches. They must allow the Deputy in possession to make his contribution.
As this is Committee Stage, we are merely putting a question to the Deputy.
There is an overwhelming acceptance of the need for measures of this nature. That has been the view of most people I have met. If it is necessary to give these powers to the Army, they must be given to them.
The Deputy must have been very selective in relation to his inquiries.
I wonder whether he has travelled far from Dublin since this legislation was introduced?
If Deputies would listen, they might find that out.
I support the measures but I am under no illusion as to the dangers inherent in the measures. Indeed, a person would need to be stupid not to see those dangers but our job here is to ensure that the measures are there to be used when necessary. So far I have not heard what one could regard as coherent and logical reasons from Fianna Fáil as to why this measure should be opposed.
If, apart from coming in now to examine his conscience, the Deputy had been present during the speeches from this side, he would be aware of our reasons for opposing the measure.
I understand that the embarrassment to Fianna Fáil in relation to voting against the section is growing by the hour because they know that the Army will note very carefully some of the implications of what is being said by the Opposition.
The Deputy knows very well that we support the Army.
Yes, but I am merely saying that they will take a careful note of some of the implications of the views of the Opposition on this section.
Cross-talk in the House always leads to this sort of disorder.
One would have thought that since Fianna Fáil are unhappy with the section they would have attempted to table amendments to it either on this or on Report Stage. It would be interesting to hear from them on, for instance, the type of defence regulations which Deputy Dowling had in mind.
There are ample circumstances in which can arise the implementation of this section. If we are to permit situations to develop where either members of the Garda are shot because of the inhibitions we might have in relation to these measures or citizens are attacked and shot by terrorists, but by the time a joint Army-Garda patrol arrives the individuals have flown back to Northern Ireland, or to some other country, them, as far as I am concerned, the protection of property and of people's lives, even by extreme measures of this nature, is necessary.
I would hope—and I put this to both Ministers—that very shortly we will see the day when this section of the Bill can be deleted. We have to be extremely careful that the separation of both forces, with their different traditions, training and so on, will be maintained. There are undoubtedly circumstances which can be advanced by Deputies on both sides in which it would be necessary to have the Army, under direction, operating on a separate basis in support of the security operation. There has been an area of sensitivity here from the Fianna Fáil point of view with which I would not cavil but we have had instances of ruthlesseness displayed in operations in which those people would disregard whether it was a Garda car or something else that was in front or behind the car driven by the British Ambassador. There have been many cases of attacks, particularly around the Border, where they did not inquire as to the colour of the police or the Army. Whoever came in their way got in front of their pistols or larger weapons.
In terms of the overall situation, I am prepared to accept that there must be flexibility given to the security forces. That is logical. It is unpleasant, abhorrent in many respects in terms of the structure of the State, but I cannot see any option in this. I have spoken to many people in regard to this section and I am of the opinion that the Government's decision is merited. I do not think there is much to be gained by the kind of comments made by Deputy Haughey in regard to the personality of the Minister for Defence. That kind of argument is not in the interests of the House, of the Garda or Army. We in Ireland attack each other sufficiently without attacking the people who are charged with the security portfolios, and I was surprised that Deputy Haughey, a former Minister for Justice, saw fit to do so.
I was amused to hear Deputy Desmond refer to cowboys. It did not clarify matters as to his feelings. If one wants an example of the Rhinestone Cowboy one could not go to a better place than Deputy Desmond's hacienda at Rathdown. The liaison of the Left have done a lot of compromising.
I had the pleasure of listening to the Minister for Lands in the Seanad saying that many of us on this side who should have contributed were silent and that that might be construed as being in favour of the proposals in the Bill. I represent a constitutency with a big Army vote and I am glad of the opportunity to give my views. The Minister for Lands did not say that many of us were denied the opportunity to speak the other night when the guillotine was applied.
I then put my views on record and said I hoped we would put our views in regard to this proposal. I detest the Provisional IRA, the UVF and all their kindred bodies, but I am against this section which changes the whole status of Army life. It has been pointed out that it will be of a permanent rather than a temporary nature. The lot of the Army will be that of a police force. On 1st September the Taoisech said the object was to make the Army act as a police force. He said it was not the object to have an Army of our strength marching up and down being an ornament. In other words, in the eyes of the Taoiseach the Army would be an ornament if they did not engage in police activities.
I am sure those who answered the advertisement "Join the New Army", did not know they were being conned to "join today's Army and be in the police force of tomorrow". I am confident this is not wanted by the Garda. I discussed it with some of them and their attitude is that the force should be strengthened and more men put on the beat. The long-term good of the country would be best served in that way.
What will happen to the Army when the so-called emergency is over? Will they be sent to join the thousands of others who are unemployed, as happened when the last emergency was over? The Minister should realise —he has, judging by his acceptance of some of our amendments—that he must have 100 per cent support from the public for legislation such as this. Public opinion has been coloured by the role of the British Army in the North and we can go back far enough to the frightful memories of their predecessors in this State prior to independence.
The Army do not want this legislation. I know the attitude of those of them in the Curragh who have been forced to take up the duties of prison warders. They were hopeful these provisions would not be of a permanent nature. Men joining the Army would not join a police force if they had a choice. They are poles apart. Another point is that this decision will undermine the good opinion of the public as far as our Army are concerned.
When the type of security the Government could muster at the court-house which was blasted failed and the number of personnel made available to guard the British Ambassador failed, how can they expect to cast an effective nationwide net of security with the aid of the Army and be successful? This is part of a window dressing campaign. The Cabinet decided to call out the cavalry. The long-term use of the Defence Forces will now be brought into play to buttress the poor performance of those who always place themselves on record as being the sole supporters of law and order.
I am sorry the Minister for Defence, who should be very much involved in this debate, could not find the time to stay here and hear what is being said. If we are in an emergency situation and the Government must use all the powers and resources at their disposal, money should be no object. I should like the Minister for Defence to answer one final question. Will the members of our Army who will now find themselves doing police duties side by side with members of the police forces be paid the same rates of overtime as are available to members of the police force. These are the questions being asked by members of the Army in my constituency who are not subversives but ordinary people doing the day's work they enlisted to do. These are the questions I should like to hear answered.
A number of points have been raised in the debate so far and I will endeavour to deal with them. First of all, may I comment on what I consider to be an unfortunate tone in the debate starting off with Deputy Collins's contribution and exemplified in the contribution by the last speaker? This seems to be the total sense of alienation or nearly antipathy which the Opposition apparently feel for the Army and the Army's role in the nation.
That is totally unwarranted.
It is not true.
Let me develop my point.
What the Minister has said is damaging enough and it is totally untrue.
Deputies must learn to listen and then they can answer.
When a Minister of State makes a statement like that we are entitled to protest.
The entire tone of the Opposition's debate, the whole thrust of the Opposition's debate, is somehow that the people have something to fear from our Army because they are being given these new powers, that our Army cannot be trusted. Deputy Power compared them with the Army in Northern Ireland, and he even went so far as to draw attention to the experience in this country, before we won our independence, at the hands of an army. Is it any wonder that I rise with some sense of outrage and shock that this general tone and thrust should be informing the approach of the other side of the House? When the Minister for Defence said the Army are held in affection by the great majority of our people, he spoke accurately. The Opposition would do well to reflect that that is an accurate view of the feelings of the vast majority of the people.
Absolutely. We endorse that 100 per cent.
There is no question about that.
There is a feeling of affection and total trust. Like Deputy Power, I have the honour to represent a constituency where there are three garrison towns. I can assure him that the feeling of the people towards the Army is one of affection and trust.
We agree with that 100 per cent.
Deputy Collins implied that somehow the Army will suddenly lose that feeling of support and trust overnight. He said the public might not support the Army in the same way and that the public will not accept the Army operation in the police area. This has the implication in it that somehow the Army will be oppressive that, as I said earlier, a force something like a collection of foreign mercenaries will be inflicted on the people. The soldiers in our Army are our relations. They are Irishmen like the rest of us and they are as sensitive to their obligations and their rights and duties as citizens as any of us. To suggest that in some way their performance of their duties will be in the mould or way of a foreign army, as Deputy Power seemed to imply is usually unworthy and seriously insulting to the force.
I did not imply that. The Minister is implying something I did not say.
As the Minister for Defence pointed out, there may be historical reasons why the feeling on the far side of the House for the Army may contain an element of alienation——
Here we go again. Flash back 50 years.
——a feeling of what use or abuse may be made of the Army. It is significant that there was so much neglect for so many years of the Army. When this Government took office, the numbers were inadequate and the equipment was inadequate. Those two things, of course, contributed to inadequate morale. The present strength of the Army is the highest peacetime strength ever. The equipment available to the Army has never been better. The morale of the Army is 100 per cent. This reflects the complete identification of this Government with the Army and an acknowledgment of the importance for us of the Army in our State. We trust the Army and we are prepared to build the Army up, to give the Army the equipment and to keep the Army morale high.
It ill-becomes Deputy Haughey to come in here and sneer, as I heard him doing, and suggest we are introducing some idea of creeping militarism because the Minister for Defence identifies with the Army and because the Taoiseach identifies with the Army. To suggest this is some form of creeping militarism is unworthy of the Deputy. Indeed, it carries with it the implication somehow that this could lead to a situation of constitutional instability. I would remind the House that never have our Army endangered the constitutional stability of the State. The last time there was any danger to the constitutional stability of this State was in recent times and it ill-behoves Deputy Haughey of all people to make slighting references to creeping militarism.
For God's sake will you deal with the section?
The Taoiseach has identified publicly with the Garda in a way none of his predecessors in recent times had done. He was the first Taoiseach to take the trouble to go to the Garda depot and present Scott medals to Garda and take a passing out parade. Is he thereby to be accused to some sort of creeping alliance with police and in some way bringing us nearer a police state, the equivalent, in police terms, of this creeping militarism Deputy Haughey sneered about? I am afraid that for historical reasons the Opposition are incapable of identifying fully with the Army. We on this side of the House can do so, and we are satisfied that the vast majority of the Irish people have affection and trust for the Army.
Various points were raised during the debate. We have taken positive steps to indicate our concern for the Army and the needs of the Army, and similarly for the police. Their numbers are at the highest level ever. Their equipment is second to none now and was never of a higher standard in the history of the State. This shows our concern to maintain the State's protecting forces at a high level of efficiency and to keep them in a position where they can help the State in a time of emergency such as now.
Another indication of what I might call the cavalier attitude that could be adopted by the Opposition towards the Army leads me to accept a point made in the course of the debate, but not for the reasons it was made. It was suggested in the debate that giving powers which might be used by the FCA was even worse than having those powers exercised by members of the permanent Defence Forces. I take that point and I will introduce an amendment on Report Stage to limit the powers to the permanent Defence Forces.
So will I.
The reason I am prepared to do that——
The Minister does not trust the FCA.
——is not that I do not trust the FCA. I had the honour of serving in the FCA. I do not trust all future Governments if they should not be of this persuasion over here as to how they might deal with the FCA because only some years ago— the Deputy who was in charge of Defence then is in the House—the FCA were abused because IRA men from Derry were given arms training in a military installation here under the guise of pretending they were members of the FCA.
The Minister does not trust the FCA.
That is so serious that the possibility of it being excluded in the future must be written into this legislation. For that reason I am confining the powers to the permanent Defence Forces. It is not that I distrust the FCA but, on the evidence of past performance, I would distrust future Executives of a different persuasion to this as to how they might treat the FCA, or rather abuse the FCA.
It is not apt or appropriate that the powers contained in this section would be put in the Emergency Powers Bill. The Emergency Powers Bill is presented pursuant to the emergency resolution and because it contains matters which require the immunity given by Article 28 of the Constitution. The operation of that Article excludes constitutional challenge for the matters in the Bill and prevents a citizen challenging the Bill. I am sure nobody here would want to restrict the right of a citizen to challenge the powers under section 15 and that would be the effect if they were to be put into the Emergency Powers Bill. It would be entirely inappropriate that a piece of legislation which does not need the immunity given by Article 28 should be put into a Bill where it would have that immunity and thereby remove from a citizen the right to challenge it if he wishes.
The Minister is now acknowledging that there is immunity under Article 28. He never acknowledged that before.
The suggestion that the powers should be exercised by a Minister for Justice is window dressing on the part of the Opposition. It is impracticable that powers which are of their nature operational should have to await the approval of a single person, the Minister in question. The proper person to exercise these powers is the Garda officer in charge of the situation on the ground. It is his job, his responsibility and his knowledge that will decide when these powers should come into operation. Furthermore, that principle preserves the primacy of the police as the law enforcement agency of the State. That principle is maintained by the provision that the powers are requested by a superintendent. In the same way at the moment if the military are needed in aid of the civil power it is the Garda who called in the military in aid of the civil power and there has never been any suggestion that that power should be reserved to the Minister.
Deputies Collins and Haughey asked why, if we need the military to do these things, do we not have more police. We are recruiting more police but we are recruiting them because there has been an inordinate drain on the manpower resources of the police up to now for Border and terrorist duties. The extra police will be primarily intended to enable more men to be deployed on what might be called more routine police work. Deputy Carter made the valid point that it is important in the security element that citizens should be secure and safe in their homes and the incidents of crime should be curtailed. He said that one way this could be done would be by a greater police presence on our streets. This is where police could be used and not in an anti-terrorist role. They have to be used there and take the lead but it is equally important that they should be used in the other civilian role as much as possible. If their role in the anti-terrorist area can be supplemented by using the military, it is commonsense that the military should be given a greater involvement subject to—I must repeat this and I cannot emphasise it too often because it is constantly being ignored by the Opposition—the primacy of the police and in a subordinate role to them.
Even if we were to double the number of police available to us, we would still be left with almost 15,000 uniformed disciplined men in the service of the State in an entirely passive role. That would be daft government. The Garda, as I said on the radio, are essentially on top of the security situation here. They have scored a number of outstanding successes and their achievements in bringing terrorists to justice is quite remarkable and reflects great credit on them. I have no doubt it gives all sides of the House a great measure of pride but I must remind the House that this present state of emergency is stated to be and is arising out of the armed conflict in Northern Ireland. There were some disturbing trends lately in that the addresses of perpetrators of some more violent crimes here and the general tone of crime down here has been informed by what is taking place up there. The time to move is before it gets any worse and arm ourselves with these extra powers.
Why not make some suppression orders?
While the Garda are on top of the security area here, and I hope they will continue to be on top of the security area here, these powers are brought in to ensure that they will continue to be on top of security in this jurisdiction. That is the answer to Deputy Haughey. I should like to repeat that we are not creating a second police force. We are giving some extra powers to the military to supplement the Garda in their anti-terrorist operations. Those powers can only come into operation when called into operation by the police. The primacy of the police is being maintained and the subordinate role of the Army as an aid to the civil power is being maintained. Deputy Barry Desmond was correct when he said there was a welcome for this provision.
In fairness to the Minister for Justice, I can only liken his most recent outburst to that outburst of the Taoiseach at the close of the debate on the declaration of a state of national emergency. It is a pity that the Minister who normally can keep his cool had to go back to the civil war and try and bring in the causes of the civil war.
I was objecting to the Opposition's statement of creeping militarism.
If the Minister is suffering from the constant pressure he seems to be suffering from as a result of this debate and he finds his case so difficult to defend he can deal with it without blowing his top. It is wrong that we have to throw charges of any nature at any Member of this House. This is not the first time the Minister for Justice has resorted to this tactic when he has been cornered. During the course of the debate I gave in on points when I felt I should and I never resorted to personally attacking any Member on the Government side nor would I do so. This matter is far too serious. We are now, irrespective of what the Minister says, creating a second police force here because the Army are being involved. I have as much time for the Army as the Minister or anybody and I respect the Army as an Army but I am entitled to criticise the Army's new role being thrust on them by the Government. That is what I criticise. I have as much affection as every Member on this side for the Army as the Minister for Justice or the Minister for Defence or any Member of their party. The Minister does not have to try to knock it and say that there are historical reasons why the Fianna Fáil Party would be questioning this. He said that our affection and trust for the Army are questionable. I reject this as utter nonsense and an argument so poor that it ill becomes the Minister for Justice to use it.
I should like to repeat what I said earlier today. In voicing my criticism of the Army's new role, thrust on them by the Government, that is, doing police work, I knew I would be misinterpreted. I am sorry the Minister tried to send the message abroad from this House that the Fianna Fáil Party say the Army cannot be trusted. That is untrue. I accept that the Minister is having second thoughts about the role the FCA should play. So well he might. Surely he or the Minister for Defence did not have to wait until today to know what the Bill, as prepared by them, which purports to give power to the Defence Forces to arrest and search in certain circumstances only meant the Army? If they believed that, that shows the public and the House the amount of preparation that went into putting this Bill together.
I sincerely hope that the attitude seen here today and yesterday where we can agree to differ in a cool and fair fashion, will prevail in future. I cannot see the relevancy of any civil war issue in this debate nor what the rights and wrongs of the Blueshirts of the thirties have to do with this debate. For the reasons we have given we are objecting to the new role being thrust on the Army, namely, to be a second police force.
We on this side have as much faith in and affection for the Army as anybody on the other side. It ill becomes any member of any Government to try to send the impression abroad that Fianna Fáil are criticising the Army and that they cannot be trusted. That is very wrong and is damaging to all, mostly to the Army.
I support what Deputy G. Collins said. I want to draw attention to what the Minister said when he indicated that he was prepared to accept our argument in relation to the FCA. The reason he gave was not that on reflection the FCA would not be suitable for this role—I would have thought that was the proper reason—he said he did not trust any future Administration, other than one from that side of the House, to have a proper association with the local FCA.
And I gave my reasons.
The Minister will have to accept the Government the people elect.
The Minister stated that for the future he is prepared to do less than he thinks is desirable in this legislation. He is prepared to delete the FCA simply because he does not trust any future Government, unless it is a Fine Gael dominated Government.
The last Government abused the FCA.
The Minister is implying that no future Government can be trusted.
I presume the Minister is implying that we would be less than reliable in our dealings with the Army and the Garda Síochána. If what the Minister has been trying to convey in his contribution were to be put across, we would be less than reliable. He has been saying that everything we have been arguing was a reflection on the Army. That is in line with the kind of argument he made about the police functions in the course of this Bill. He has had to acknowledge that on many occasions our arguments were well based and warranted.
We support the Army and the Garda unreservedly. Terms of affection, loyalty or support, for the work they have done, are doing and will do, are as apt to come from this side of the House as from the Government side. It is because we support them that we have to question an extension of the role of either the Garda or the Army to an area in which they have not been accustomed to operate and in which the public have never seen them operate, in this case, an area in which the Army have no special training and which we believe to be hazardous not only to the public but to them also.
If the Minister wants to interpret that as being a criticism against the Army he is free to do so. We cannot stop him. But if he does that he is trying to raise fears and present unworthy arguments which should not come from a Minister who is seeking support and who should be able to justify this section in logic and reason. He has not done that. I listened to him for the last 15 minutes and did not hear any logical answers to any of the precise questions raised. I want to ask him a few questions again and will yield to him immediately if he chooses to reply. Does he not acknowledge that the new powers being given to the Army under this Bill can be applied for offences other than subversive offences, as stated in this Bill?
The powers given to the Army can be used in regard to the offences set out in section 8 what are broadly called terrorist-type offences.
We need more than that from the Minister.
I will use clearer English for Deputy O'Kennedy and say offences which come to be frequently committed by terrorists.
Does the Minister acknowledge that the extension of the powers of the Army can apply to offences other than what are broadly called terrorist-type offences and that there are people serving sentences under section 18 of the Offences Against the Person Act, 1861, and sections 23, 23 (a) and 23 (b) of the Larceny Act, 1916 who are not terrorists?
Yes, and there are people serving sentences who are terrorists.
The Minister is making my case. In spite of that, he is including in the extension of Army powers offences which, in some cases, have nothing to do with subversion. If the Minister acknowledges that, he is meeting us somewhere along the line. I hope he accepts our right to note that fact, to question it and to ask him to correct the position, because someone has to take the decision at some stage. Once we give power that is the end of our role and the Minister's role. It is then for the Garda and the Army to operate the Bill under the powers we have given them. The Minister has acknowledged that we have given them powers to introduce an Army presence into areas hitherto reserved to the Garda for offences or crimes that may have nothing to do with subversives. That is a very serious position.
We said that we welcomed the presence of our police force, and many more gardaí, to maintain normal security and peace and to guarantee the safety and liberty of our citizens in every area of their normal lives. We see the need to regulate and restrict the presence of an armed force doing what has hitherto been restricted to an unarmed police force. It seems that this section will pass without any amendment or reservation, apart from the unworthy acceptance of our suggestion about the FCA. When this Bill is passed the Army will have powers to which they are not accustomed, powers which the police did not have, do not have at the moment and will not have until this Bill is passed, that is the right to stop and search vehicles, the right to search people in vehicles——
They have the right to stop vehicles.
But not to search. I said, to stop and search vehicles. The police at the moment do not have these powers. Members of the public might assume that the police have those powers. There would not be great trouble if the police did have those powers. When this Bill leaves this House not only will the police have that power but the Army will have it as well. The Minister says that we are expressing unreal concern here and that we are making implications against the Army. We are doing no such thing. I would hope that we can discuss this kind of legislation and the serious extension of Army powers in a much more reasoned and objective fashion than heretofore.
I sincerely regret the fact that the Minister tried to imply that for historical reasons anything that we have said about the Army has to be questioned and that we have an historical distrust of the Army. That is a terrible suggestion. I hope that none of us on this side looking at the history of any political party could imply that only we have the understanding and the right to supervise the role of the Army. We are all concerned with upholding the democratic institutions that have been entrusted to us to uphold. We accept the enthusiasm of the Minister for Defence and the Minister for Justice in the roles they have and we accept their wish to discharge their roles with concern and integrity. Nonetheless we are entitled to question the manner in which the Minister for Defence, in particular, more or less indulges in a maximum presence of the Minister for Defence in Army activities. We feel that the Army are capable of discharging their functions without the presence of the Minister for Defence. That is the type of thing Deputy Haughey was referring to. We trust the Chief of Staff and the Commissioner.
We do not think that the Chief of Staff or the Commissioner needs to be directed regularly by the Minister for Defence or the Minister for Justice. In fact, they should never need to be directed in this area. To imply, as the Minister for Justice has, that because the Taoiseach presented the Scott medals that the previous holders of the office had less respect for the Garda than has the Taoiseach is a very unworthy implication. Perhaps the Minister would now indicate what precautions he proposes to take and what directions he would give to either the Army or the Garda to ensure that these powers which can be operated by the Army in areas other than subversive activities will be strictly regulated and controlled.
I repeat that we are dissatisfied and disappointed by the Minister's attitude in replying to this debate. We had made a case to which we were entitled to have a reply regarding our concern over this complete new departure in giving a police role to the Army. We should try to avoid in this debate the possibility of identifying the Army with a political role. The Minister has nearly brought the debate down to that level. The Minister has explicitly stated that for historical reasons Fianna Fáil cannot identify with the Army. That is an unworthy statement which will not go down well with the Army, because the personnel of the Army have their different views too. If they are to be left a political contention with which to play around and if we are to have this type of argument injected into what was a serious debate, it is an unworthy role for either the Minister for Defence or the Minister for Justice.
The Army has lived through many political vicissitudes and we do not have to go back on the different roles they had to play. There were times when they had to be prepared to suppress a political blueshirt army. At all times they were prepared to take on whatever role was necessary and one characteristic of the Army down through the years was that they showed no political leanings one way or another.
We have been treated to a not too transparent effort to have the Army identified with one political party and I would say that is the last thing the Army would want or that the people would want. We are treading on very thin ice when we are even moving by implication in that direction. The Minister was obviously saying in his speech that Fianna Fáil did not like the Army and that the Army belongs to the Government. The Army belongs to the people of this nation. The Government may change ten times but the loyalty of the Army would be given to whatever Government is in power, so long as they continue with the democratic institutions of the country. We should stop making a political football across this floor of the Army and the Garda. We do not intend doing that. I hope the Government speakers are actuated by the same intentions and desires. It is quite a serious intervention by the Minister.
We raised certain questions regarding the drastic change which has taken place, and I pleaded with the Minister that there might be safeguards in the form of subsections built into this at some stage, which would ensure that it would not be brought into effect until such time as circumstances might justify it. We will be vindicated in that stand. The Minister made no effort to explain how this new role of the Army would work. The Minister sought to tell us that the Army were the grandest people in the world, and that Fianna Fáil did not like them. That is not the type of ending there should be to this debate. If we are going to identify the Army with one political group it is a sorrowful day for us.
Lest it go abroad that there is an attempt to identify the Army with one political group I want to make it clear that the Army is apolitical and above politics. It always has been and it will continue to be and that is the way we on this side of the House want it.
Is the Minister suggesting that that is not the way we want it?
I agree that is the way you want it.
I am not suggesting that at all. The Minister should not be so touchy.
Order. Let us hear the Minister out without interruption.
The debate has taken this turn because Deputy Haughey has made serious charges, charges, as I said, of this Government introducing something he called "creeping militarism" and his justification for that was the public identification of the Taoiseach and Minister for Defence with the Army. I was simply pointing out how this is a desirable thing and how it is only proper that the Government of the day should respond to the Army. I also indicated our attitude towards the Army. The level to which we have raised its manpower and the extent to which it has been equipped indicate a different attitude here and I am not going to have that attitude sneered at as "creeping militarism".
The Minister's only argument at any time is personal abuse. He can never argue a case reasonably.
Order. Deputy Haughey, please.
He is the most discredited man in this country today.
Far from it. I have no shadows to come out from under. The point I am making is that, if there is an allegation of "creeping militarism" against people whose tradition for democracy is impeccable, I will defend them and I am entitled to defend them.
I will go back on allegations too and the Minister will be sorry.
I will never be sorry.
The Minister will.
I will never be sorry and I will not have my colleagues sneered at. It was in that context I raised the matter. I do not claim that the Army should identify with any particular political movement of the day. It should not do so. It belongs to the nation and it is above politics. I want to make that clear.
The Minister is excluding the FCA from the operation of these powers because he does not trust any successive Government to operate this properly. That is what the Minister said.
That is what I said.
Is that the Minister's reason for excluding the FCA?
They were excluded in the past.
The Minister did not know they were excluded in this Bill.
I served in the FCA.
So did I.
This section deals with the role of the Army and the security situation. If the Army is going to be brought in I suggest it should be brought in properly. We are led to believe there is a certain amount of co-operation between the security forces on both sides of the Border. I suggest that now is the time for the Government to approach the authorities on the other side of the Border and tell them if they cannot make a good enough job of patrolling and manning checkpoints then leave it to our lads and make our Army responsible for protecting us and them. I read in the papers over the weekend that Monaghan County Council had asked the Minister for Foreign Affairs to do what he could about complaints at Aughnacloy because of the harassment and delays on both sides of the Border there. His reply was that he had little success. I would say that "little success" sums up the Government's achievements in a whole lot of areas.
I was delayed for 35 minutes at Aughnacloy yesterday. There was no other vehicle there. I was asked for identification. I showed my driving licence and I was told to wait for two minutes and the car would be cleared. I sat there for 15 minutes and, after 15 minutes, I asked for a wipe—I suppose it was cheeky—and they let me sit there for another ten minutes. On another occasion I was coming up here and I had heard some complaints about delays. A Scots soldier asked me where I was going and I said I was going to Donegal. He asked me where I was coming from and I said I was coming from Dublin. He said: "Why don't you stick to your own State?" I have more right to travel through County Tyrone than any British Tommy. Some move will have to be made by the authorities on this side dealing with security, searches and checkpoints. We hear a good deal about checks and patrols in operation. I can verify what Deputy Blaney said about this. I travel at all hours of the night from here to Donegal. Last weekend I saw one garda at Muff. So much for all the talk about patrols.
I would seriously put it to the Government that now is the time, when there is talk of making changes, to go the whole hog and tell the guys up there they are not doing a good job; "We have complaints day in and day out of delays and other things. Let this side be responsible." Maybe that would be the first step to get us out of the sorry mess the country is in at present.
This would be a very amusing discussion were it not such a serious matter. The contributions of the Minister for Defence and Deputy Desmond were very entertaining. They must think we came down in the last shower judging by the way they talked here. We have the Minister for Defence defending the Army against attacks that were never made about their alleged inexperience in doing what is obviously a police job. He cited the 11,000 Border patrols in the last 12 months and talked rather emotionally about their experience abroad. Surely the Minister is not suggesting that this experience, and some of it was bitter experience, by our Army engaged in UN peace-keeping operations is needed for the type of operation envisaged in this particular section. Surely that is not what is intended. I certainly would not envisage it as parallel to the Congo, Niemba and so on.
This is what the Minister talks about here in an attempt to defend the Army against attacks that were never made against it by anybody. I do not know why he should think he had to take it on himself to defend the Army. Deputy Dowling made the telling point that the Army would get a couple of minutes' briefing under this section before going out. The chances are that in the circumstances envisaged there would not be any minutes in which to brief them at all. The Minister takes it on himself to talk about the experience the Army has had. Nobody has denied the honourable and honoured part they played as part of the UN peace-keeping forces. We are not dealing with a UN operation here. There might have been the chance that such would have been the case when it was sought to have the UN come in and do a job in so far as the whole sad saga of the Border and Partition was concerned but that is not the case any longer. The Minister for Defence rushed in with a defence that is uncalled for and which has no parallel in relation to what we are speaking about here. That does not get away from Deputy Dowling's assertion that members of the Defence Forces will be committed to this type of operation, which involves simply police duties on the basis of a couple of minutes' briefing. I am sure they will be committed at times without there being any time at all to brief them. Since it is on the cards that the briefing will be of a very short duration, if at all, the lack of training in police peace-keeping operations by an unarmed force is very alien to the training they will have received as prospective combat units. Therefore, Deputy Dowling's criticism of the role to which the Army are being exposed and the inherent dangers through lack of briefing, backed up by lack of training, is justified. No blustering by the Minister for Defence can get away from the fact that the Army is an armed force here that has had, and is recognised to have, a distinctly different role to the unarmed Garda force we have had since the foundation of this State.
The Minister for Defence spoke also about the terms of the operations in regard to the six hours. If the Government and their manner of governing could be measured by assurances given by front bench Members inside and outside this House in regard to their operations, then they would be the greatest things ever. But, as is accepted by every Member of the House, both Government and Opposition, assurances are in no way laws in themselves and it is under the laws being enacted here we will operate. It will be what is written down here when this Bill becomes an Act that will count and not assurances. Then we had the contention that nobody will be kept for six hours, that that will be most exceptional, that there will be Garda around the corner to take any persons that the Defence personnel may have arrested in the course of the duties conferred on them under this section.
What will be the position if arrests are made and a delay in excess of six hours occurs for one cause or another? It could even be the breakdown of a vehicle transporting prisoners back from some outpost not just on the perimeter of Dublin, as somebody said, with an inner circle of Garda and an outer circle of Army, a double cordon, when it would be merely a matter of whistling from one to the other. That is so far removed from what is likely to happen it does not wash.
It is quite probable that arrests by Defence personnel, with no garda in the vicinity, will take place in the most out-of-the-way parts of the country, at the most outlandish hours, when there would be no garda or Garda barracks within many miles of such an operation. It might also be that, having made the arrest, there would be no transport immediately available to meet the six hour deadline. It is also possible that even where transport is available it may break down or may not be able to get through before the six hours' period expires. After expiration of the six hours, do such people held then go free? I understand that they should. But the Minister for Defence contended that even the six hours were unnecessary. It would happen right away. If that is the manner in which he thinks the operation will take place, then there is no need for the section at all. If members of the Garda are in the vicinity, in close proximity to the Army personnel, why is there a need for this specific provision? Time and again the Army are to be seen with a member of the Garda Síochána doing his police work in the normal way. Why cannot that continue? Where has the shortfall taken place? Why is it necessary to attempt to treat the Army as a police force, which it is not, has not been and never will be, unless we totally disband the Army and train them as a police force, which I presume there is no intention of doing?
We have had a great deal of bragging by a couple of Ministers here but particularly by the Minister for Justice who spoke about the Army and its inadequate numbers and equipment some years' ago. The comparison now being drawn is that they were never better equipped, their morale never higher and their numbers never greater since the last emergency. The deduction to be drawn is that since we have them in such numbers we must find some use for them, so we whack them in to do the Garda job rather than recruit more gardaí. If that is intended to convey what the Minister's words appeared to convey, then the Government and the Ministers for Justice and Defence are open to very severe criticism for having allowed Army numbers increase to that extent, for having expended moneys we can ill afford equipping them and then contending that they have nothing better to do so they will use them as police, at the same time ignoring the everyday peace-keeping role in which the police have been engaged and which is being totally neglected at present.
This neglect has continued for some years now while those on recruitment waiting lists have been standing by waiting to be called for up to two years. Why have we not been recruiting more gardaí rather than stupidly recruiting more members for the Army which, on the admission of various spokesmen for the Government, are not needed in their present numbers? I think somebody mentioned that the Taoiseach had said that to be marching them up and down in their present numbers, equipped as they are, would merely be using them as ornaments. We cannot afford ornaments of that nature at present, particularly when we are in need of more gardaí. That need did not arise yesterday. It should have been foreseen a number of years ago. We understood in this House that that need had been foreseen, was being attended to, that Garda numbers were being supplemented in order to cater for the new demands being made on them in and around Border areas, enabling normal police work to go ahead in normal times. Instead of that, through some bungling or other, recruitment takes place, money is spent on equipping more Army personnel to act as ornaments while the Garda remain at a point where we have got now to make policemen out of the Army for which they were never intended, were not so recruited and have not been trained.
There is no doubt in anyone's mind that the Army are not the best people for this job. That is not a reflection on the calibre, the standing or the status of the people in the Army. The Army personnel would be the first to admit that this is not their role, that they have not been trained for it and that they should not do it. Subsection (2) states:
Whenever a member of the Garda Síochána not below the rank of superintendent requests an officer of the Defence Forces....
There is no indication given regarding the rank of the officer so requested. It is a serious matter to make the request but providing troops armed to do police work is much more important in the final analysis and the question of the rank of officer must come into the picture. There has been no attempt in the subsection to qualify the rank of the officer of the Defence Forces who may be requested to make available soldiers in aid of the Garda Síochána. The subsection also states:
...to make members of the Defence Forces available for the purpose of the exercise of the powers conferred by subsections (3) and (4) of this section during a period specified in the request....
In what circumstances would a superintendent be in a position to specify the period referred to? If it should happen that the job took much longer than the time specified by him, the members of the Defence Forces, not being accompanied by a superintendent of the Garda, may find themselves operating outside the period stated. How can that difficulty be overcome? The subsection also states, "...the officer may make——". There is no obligation on the officer to make available members of the Defence Forces. In such a situation the pattern of peace-keeping and security arrangements of the Garda Síochána might be thrown out of gear having been given the understanding that they could rely on the availability of the Army to act as armed policemen when, in fact, they might not be available. For instance, a junior officer might not know if personnel were available; alternatively, he might make them available to the Garda Síochána, thus exposing the Army to a greater risk than what they may be called on to cure. There are alarming faults in the subsection and the Minister for Justice should give serious thought to them.
Subsection (2) (a) refers to an officer and one or more members of the Defence Forces under his command and subsection (2) (b) mentions one or more members of the Defence Forces under his command. This means that the ordinary ranks could be made available without an officer and that is another point the Minister should seriously consider. The subsection also states:
...available for the purpose aforesaid, and a member of the Defence Forces made available as aforesaid may, while on duty in uniform during the period specified in the request, exercise the powers conferred by the said subsections (3) and (4).
What provision is being made as to how any member of the Defence Forces in uniform can identify himself by way of identity card or other document that he is a genuine member of the forces? Somebody could be masquerading in a uniform similar to that of the Army. The Garda Síochána must give proof of their identity when they are on duty and not in uniform. We know that uniforms are very easy to come by and they have been used on occasions on both sides of the Border; no doubt they will be used in the future for various purposes. Having put the soldier on the road as an armed policeman, although he is not trained for work of that nature but is trained for combat duty, the public are in the dilemma that the only thing that they must rely on for identification of the person by whom they are accosted is the uniform he happens to be wearing. The Bill should not have been presented with such an omission. Even if this mad section goes through we can only hope that the Minister will rectify this situation. Otherwise there is the very real danger of persons masquerading as members of the Army in the knowledge that the public expect to be stopped and searched on the roads. Therefore there could be instances of persons being taken away by people other than members of the security forces.
Another aspect of this is that doubt on the part of a person accosted as to the identity of the person in uniform may cause him to resist and this would put him in the position of being guilty of a serious offence in the event of the hold-up being genuine but in the event of it being a bogus effort the fate of the one held up may be much worse in the long run than what would be his fate for resisting genuine arrest. This danger has been recognised, though not adequately, in another section in regard to members of the Garda who would not be in uniform. It is a departure from practice that the uniform is to be the only means of identification. With the UDR crossing the Border so frequently and with the many changes in regiments of the British Army in the North residents along the Border are more accustomed to these uniforms than they are to the uniforms of the Irish Army. However, allowing for that and for the similarities in various uniforms and taking into consideration that combat and camouflage jackets are worn in all armies, the Minister must realise that there is a need for means of identification other than the wearing of uniforms. I cannot understand how the Minister and his advisers overlooked this aspect of the measure especially when in relation to other cases identity cards can be required to be produced on demand.
Apart from this very serious omission one must ask whether there will be available to members of the Defence Forces operating under subsection (2) means of proving that they have been called out under the subsection? How are the public to distinguish between those who have been called out and those of evil intent who may pretend to have been called out? There is nothing in this measure to satisfy members of the public in that regard. This is another serious omission which makes the section even worse than it might be. These two omissions alone even at the early stage of the operation of the provision would render it unworkable in that the co-operation of the public could not be expected to be forthcoming.
Talking of co-operation, why is it necessary to have this section? All one can say is that while disagreeing with its inclusion I am very much assisted in my rejection of it by the words used by the Minister in introducing the Second Reading when he said, as reported at column 446 of the Official Report for September 7, 1976:
While I have said that the Garda have no general right to search cars, I would like—in case any situation in which the Garda have to mount road blocks should arise before this Bill is enacted—to make it quite clear that this is not to be taken as meaning that the Garda are powerless against any criminal who might feel like insisting on what he regarded as his legal right to refuse to open a car boot. The fact of the matter is that public acceptance of the need for such action is so near to being unanimous that the person who refuses to cooperate is virtually asking to be treated as a suspect and, of course, when the Garda have reasonable grounds for suspicion, they have a number of powers which they can call on.
Can there be recorded anywhere a combination of words which rebuts more concisely the need that is being expressed for this section? Not only do we not need this section but we do not need the earlier section which confers like powers on the Garda. Consequently, the whole effort of both sections is a hoax to say the least and not a very palatable hoax considering the implications of the section not only for the Garda and the Defence Forces but for the public generally. As Deputy Power has said, the Army have no wish for these powers. They are being given a role for which they were neither recruited not trained. If this was the life they had wanted they would have sought to join the Garda Síochána. Likewise there are many gardaí who would not wish to be in the Army. Should we say to the Garda that they should be available to carry out the duties of the Army at any time? One is just as unusual and awkward as the other. The Minister has answered the question of whether we need this section or the previous one. He has given clear reasons as to why both are superfluous.
The Minister for Defence told us that even if this goes through nothing will be changed, and in this connection he spoke of Army regulations CSI. He said that some phrase might require changing. Surely regulations for purely combat operations could not be taken as applicable to Army units doing police work? Surely there is something wrong in the insistence of the Minister for Defence that everything will be the same?
Some of us have had experience of soldiers doing police work. I am talking about the real thing in the other part of the country. You are stopped day or night, in company or alone, and a sophisticated automatic weapon is shoved into your snout through the car window within inches of your head by a British Army man or a UDR man as the case may be. I do not know how other Deputies would feel with a gun within three or four inches of their heads. Whether travelling alone or in company, you would be just as dead if the thing went off accidentally.
Do we want to introduce such a situation into our operations here? What does a member of the Defence Forces do, armed with a sophisticated automatic weapon, when he seeks your identity at a checkpoint? He comes up to the car and asks for your identity. Does he lay the weapon on the ground or does he hand it to his fellow patrol who has a weapon of his own already and who could not possibly cover the other man at the checkpoint with two weapons in his hand? Are we to have repetitions here of what has been happening at the Border for years, whether by accident or otherwise? Weapons have gone off and we have seen many instances of it reported.
As a young lad being introduced to the use of the shotgun and later to the use of a rifle in the emergency services, I was always reminded of the adage not to point a loaded gun at anybody unless it was intended to do something with it. What is a member of the Defence Forces to do with his gun while he is at the window of your car establishing your identity? Is he to sling the weapon behind him or is he to lay it down? He will put it within inches of your head. Recently the Defence Forces have to wear gloves to keep their hands sufficiently warm to be able to handle their weapons. That gives us the situation at a checkpoint where a soldier with gloved hands and armed tries to establish your identity through the car window by way of the production of driving licence or some such document. At night he has to use a torch, so he has a gun, a torch and the identity document in gloved hands.
Does the Minister realise what in practice we are letting ourselves in for in such circumstances, forgetting all the other grounds for objections from this side? Is this freedom which the Minister is allowing to be the cause of a repetition of what we have been enduring on the northern side of the Border? I have got a bellyful of it on the other side without having to go through it again on the southern side.
There is a difference. We can blame the people above for doing that because they should not be doing it, they should not be there at all, they should get to hell out of it, but we will not have the same feeling in our minds and hearts against the people who will be doing it on this side because they are members of our Army, this is our country and we, representing the people, will have put the Defence Forces in that position although they do not want to be in it. How many people travelling from the east coast go through Sligo to Donegal, not because they have experience of what I am telling the House but because they will not take the risk of experiencing it? They are afraid to go that way because of what they have read and heard. They go the long way around if they go at all. Unfortunately, too often, unless they have some pressing business they do not go at all.
That is all very well for people who come to our county once in a while on holidays, as many do and I hope more will do in the future. Despite the long journey they are on holiday and it is not an imposition on them to travel through Sligo by car. People living in Border areas may have reason to cross the Border time without number on the same day or during the same week. They are heavily frustrated and bowed down by the operations of an Army acting as a police force on the northern side of the Border and many times chasing them into this side of the Border to be probably given some comfort and then escorted back and sent on their way.
The Minister for Defence referred to 11,000 patrols. It would be interesting to know how many would be added to that if the figure took into account British Army patrols on our side of the Border in any given 12 months. What does the Minister intend to do about this matter I have outlined in a purely practical way? I am not drawing the long bow in any way. What is he going to do in regard to the practical operation by an armed member of the Defence Forces acting as a policeman at a road block and checking a driver's licence and identity and the identity of other persons in the car? How will this be arranged? Will we have exactly the same operation on this side of the Border by our Army personnel as we experience on the other side of the Border?
I am not talking about the further objectionable operations by the Army on the northern side. I am talking about an armed person stopping a vehicle and searching it, and using a torch if it is after dark, and wearing mittens from now on during the winter months. Will it operate that way on this side of the Border? Are we who are unfortunate enough to be coming and going because we live adjacent to the Border to have our ordeal doubled overnight because of a measure passed by our own Parliament? I would ask the Minister to give that very serious consideration and see whether he can come up with something—I was about to say something which would make it more acceptable but that is not possible; it is unacceptable—less onerous and objectionable.
I have been talking about cars involving a driver and a few people. Another very objectionable procedure is when laden buses, tour buses, service buses, express buses or otherwise have to go through army checkpoints in the Six Counties. This is a most hellish operation. It is probably due to the regulations. The Army personnel have to observe them and hold on to their weapons. A member of the British Army, armed to the teeth with automatic weapons, walks into a bus crammed with people. That is dangerous because of the possibility in the confined space of the passage, with obstructions on the floor, bags, cases and so on, of the man accidentally stumbling and setting off his automatic weapon. Not just one person's head might be at risk but dozens.
I am not making any case one way or the other as to why this is the practice by the British Army personnel and the UDR. It is frightening to people and particularly the occasional traveller who has no other means of transport and who cannot afford a car. He may not be availing of any service around by Sligo because of the cost and the time factor, and he is compelled to use a service bus or a charter bus. I want to know from the Minister what the situation of our Army will be under section 15 (2). What will the instructions be to our defence personnel acting as policemen, acting as gardaí on checkpoint duty and search duty on buses laden with people?
There is an answer but it is not very practical. You stop the bus and order everyone out. I have seen the British Army adopting this practice while it was lashing cats and dogs. At their leisure they search the bus from which the entire complement of people had been piled out onto the roadside in teeming rain. An hour later they were allowed to get into the bus. I am not suggesting our Garda or our Defence Forces acting as gardaí will do that. It is not the practical answer to the problem I have set the Minister. In considering the first problem I would suggest that the Minister should not create a second one by saying everyone will have to get out while the buses are being checked. That would be very dangerous in inclement weather, particularly for people who may not be too well, young children, old people, and so on. You would not do it to your dog if you had anywhere else to put him.
That takes me from dogs to cowboys. Deputy Barry Desmond spoke about cowboys in Donegal. If we had Deputy Barry Desmond on a horse in Donegal we could say then that we had a cowboy in Donegal. There are other classic ways of describing him. He was not satisfied to talk about cowboys in Donegal. He went on to talk about what he described as political cowboys. At the same time he was coming in with his tongue in his cheek to make interventions trying to take the temperature in the House, politically speaking, so that he could report back to his absent colleagues of the Labour Party either to assure them or make them more unsettled in regard to their support of this measure. I have asked a sufficient number of questions on this measure and for the moment I will leave them with the Minister. I have raised questions in relation to the calling out of the Army, the officer in charge on the Army side who may be requested, the going out of soldiers without any officer in charge, the question of identity or lack of identity cards, the questions of uniform being a sufficient identity and of checking cars while fully armed. I believe I would be fair to the Minister if I gave him the opportunity of replying to those questions at this stage.
The question of the rank of the Army officer has not been specified because it will be for the superintendent making the request to make it the officer of appropriate rank. The superintendent will assess who in the situation that faces him is the appropriate officer. That may be decided on by the extent of the problem. The superintendent may feel he has to go to a senior officer or that a middle rank officer would be adequate to address the request to. It may be decided on the availability of officers. The superintendent can put a time limit but it need not lead to the situation envisaged by the Deputy.
If the time limit expires before the situation for which the Army have been summoned is resolved two things can happen. The Army can continue in position but their role then will become their old role of being there passively in aid of the civil power and their powers under the section lapse. Alternatively, a further request can be made by the superintendent to the officer in question for the use of the Army for the period. It will be a matter for his judgement. Preferably, and more efficiently, that request would be made before the expiry of the time if it looked, coming towards the expiry of the time, that the period for which the Army was requested was going to prove inadequate. Then a further request could be made to extend the time.
This is envisaging a situation where there would be good sophisticated communications or physical communication capable of being transmitted from the Garda to the Army. I am thinking of circumstances which are likely to arise in the usage of Army personnel where communication would not be all that readily transmitted or communication might not be possible.
I can assure the Deputy that communications between the Garda, inter-Army and between the Garda and the Army have never presented any difficulty because they are all possessed of sophisticated radio equipment. There is no difficulty in communications. The Deputy may be envisaging a situation where an Army person might be in a remote area far away from the police officer in question but that can be overcome by the use of the wireless equipment. I would not envisage any difficulty at all in that regard. I was asked how weapons would be handled. This is a matter the Army will have to decide on as an operational matter. It chiefly concerns the person carrying out the searching. Two courses will be open to him. He can stack the weapon at the scene in the custody of one of his colleagues; he can leave it in the vehicle in which they travelled.
The Minister should ask his colleague, the Minister for Defence, about that. I do not think soldiers are allowed do those things. I do not think they can leave the weapon anywhere.
This is a matter which can be arranged as a matter of Army practice. The alternative is that the member detailed to carry out these searches can go on the patrol without the weapon. There is no reason for the Deputy to be apprehensive that an overloaded soldier will be searching his car with a danger to himself or his passengers.
I am not making this up; this is the practicality of the situation.
I am telling the Deputy that there are two ways this situation could be dealt with. The weapon could be stacked in the custody of a colleague in the Land Rover that would be on the scene or the member detailed to carry out the search could travel to the scene without a weapon. It is something that would be kept under review by the Garda and Army authorities to ensure that the consequences which Deputy Blaney has outlined, and which I agree are undesirable, would be avoided. Likewise, I take the Deputy's point if there is any need to search a bus. It would not be a desirable thing in a crowded bus with all the obstacles one might encounter there to have a heavily armed soldier go up and down through the bus. That sort of situation would have to be planned for and provided for. I will draw it to the attention of the authorities.
On the question of identity cards it is not proposed that a member of the military would have to produce an identity card. If he is in uniform this will be sufficient. I take the Deputy's point that the type of jackets worn nowadays are easily copied but nevertheless there are other markings which are not easily copied and which will be adequate to distinguish a member of the Army on this side of the Border. I do not anticipate any difficulty as to that. The Deputy also raised the question of how the general public would know when the Army were acting in exercise of their powers. The only answer I can give to that is that there would have to be an assumption by the general public that the Army were so acting. If there was any dispute about it there could be a query made and if the Army were acting in excess of their powers action would be available to the citizen, depending on the nature of the excess. Certainly, action would be available as an internal disciplinary matter for any action so carried out.
It is not just as simple as the similarity of combat and flak jackets and that other insignia should be sufficient to identify soldiers. This is not so. Different regiments have different flashes and badges. One would need to be very well up—and most of our people are not—to be able to make a positive identification from the insignia on the sleeves of any army to determine if they are Irish, English, Dutch, French or any other army. I am not particularly concerned about the question of the uniforms being easily copied. It is not difficult to acquire uniforms, legally or illegally; one does not have to make them. That is why I say that a uniform alone is not sufficient identification to assure people, especially in Border areas at night time, that they are dealing with a genuine member of the force. The uniform may be genuine but there is no assurance that the man in the uniform is a genuine member of the Army. Flashes or badges would not seem to be the answer.
An identity card is not necessarily the answer either because people are even less familiar with them and it would be the easiest thing in the world to forge one if somebody wanted to masquerade as a soldier at a military checkpoint. Therefore, an identity card would not be the answer. It would possibly put the matter further but I do not think so. This is a risk that cannot be overcome. I will see if there could be a further identity arrangement but it may be difficult operationally to be able to ensure that it would be available to the degree necessary on all occasions.
There is another matter to which I want to draw the Minister's attention. All this legislation is aimed selectively, as far as the security aspect is concerned, at one organisation, namely, the IRA. The Minister said the other day when asked if this included Saor Éire, IRSP, Official IRA and Provisional IRA that they are all the same and they are all embraced in it. On his own admission earlier he indicated and defended to a very great degree the non-inclusion in any suppression orders of any of the other organisations that have been rampant here for many years, long before the troubles began.
As I said, this legislation is directed only to any type of organisation that is republican in outlook or in their alleged aims, whereas anything with a unionist or loyalist tinge cannot and is not being touched and is not being provided for here. I am leaving myself open to all kinds of charges— but I am used to that—when I say that these are the facts. How can the Minister, the Government, the Garda or the Army acting for the Garda, expect to get full co-operation from the people when they are applying laws that are aimed selectively at one element which is allegedly responsible for the declared national emergency by the Government while other organisations who are clearly a great danger to us are not included?
These laws are not aimed selectively at any particular terrorists. They are aimed at all terrorists and all lawbreakers. It is a figment of the Deputy's imagination if he thinks they are aimed at one type of terrorist. They are not. They are intended for all.
Why only one suppression order?
We went into that before.
We went into that before but the Minister convinced nobody, not even himself.
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bermingham, Joseph.
- Bruton, John.
- Burke, Dick.
- Burke, Liam.
- Byrne, Hugh.
- Clinton, Mark A.
- Cluskey, Frank.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Coughlan, Stephen.
- Creed, Donal.
- Crotty, Kieran.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Dockrell, Maurice.
- Donegan, Patrick S.
- Donnellan, John.
- Dunne, Thomas.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- FitzGerald, Garret.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Halligan, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kavanagh, Liam.
- Keating, Justin.
- Kelly, John.
- Kenny, Enda.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Donnell, Tom.
- O'Leary, Michael.
- O'Sullivan, John L.
- Pattison, Seamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Spring, Dan.
- Staunton, Myles.
- Taylor, Frank.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- Allen, Lorcan.
- Barrett, Sylvester.
- Blaney, Neil T.
- Brady, Philip A.
- Brennan, Joseph.
- Briscoe, Ben.
- Brosnan, Seán.
- Browne, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Carter, Frnak.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Cronin, Jerry.
- Crowley, Flor.
- Daly, Brendan.
- Davern, Noel.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- Flanagan, Seán.
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Healy, Augustine A.
- Herbert, Michael.
- Hussey, Thomas.
- Keavency, Paddy.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
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- Lynch, Celia.
- Lynch, Jack.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
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- Smith, Patrick.
- Timmons, Eugene.
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This section has a short title and a second subsection to ensure that the provisions of sections 2 and 11, that is, the increased punishments, do not apply to offences committed before the passage of the Act. That is not a constitutional requirement but is a requirement under the European Convention.
With no blame to the Minister, I have not heard a word that has been said.
Section 16 has two subsections in it, the first is the Short Title of the Bill and the second is a provision that the new punishments imposed by the Bill and the provisions of section 13, which provides for consecutive sentences in the case of offences committed during the currency of a sentence, that none of these shall apply to offences committed before the passing of the Act. They can apply only to offences committed after the passing of the Act.