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Dáil Éireann debate -
Tuesday, 12 Jun 1979

Vol. 315 No. 1

Garda Siochána Bill, 1979: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 2, after line 18, to add a new subsection as follows:

"(2) Nothing in the foregoing subsection shall be construed as purporting to deprive any person of any right of action which, but for the enactment of the foregoing subsection, he would have had, if such right of action is founded on the alleged denial of, or failure to respect, a constitutional or natural personal right.".

In introducing this amendment, I wish to recapitulate to the House the point I tried to make during the debate on Second Stage. I was focusing then on the character of this Bill as an indemnity Bill for retrospective validation. I made the point that the question whether it was constitutionally possible in this country to make retrospectively legal that which is illegal has not yet been squarely faced and decided by the courts. We have had at least one indemnity Act after the civil war and there have been a lot of other Bills and Acts which contain sections which retrospectively validate this or that. However, the constitutionality of this, where a grievance can arise, has never yet been tested.

I said on Second Stage that I recognised that any Government, within reason, must have a chance to validate situations which, because of a technical flaw, are invalid. I accept that. A Government would be working with a very severe obstacle if the law did not allow for such a thing to be done. Also, retrospective validation may possibly change the legal situation of individuals; and that perhaps is unavoidable. The problem arises where the situation of the individual is one where he wants to litigate, where he wants to bring an action. I raised the point last day here of the distinction between things Mr. McLaughlin may have done in the perfectly honest discharge of what he believed to be his legal function as Commissioner, of a kind which were not likely to aggrieve anybody and, on the other hand, things he may have done which may have aggrieved people. I gave the instance—whether it is a good one or not I do not know—of regulations which he may have made in regard to restrictive parking areas or something like that, which, in their nature, do not give rise to much litigation and about which I could see no great problem if there were retrospective umbrella legitimacy for this type of regulation, even though they were a year old and made at the time without lawful authority. On the other side, which is a good deal more difficult, is what to do when something which the Commissioner did in the line of duty, or what Mr. McLaughlin did in good faith, thinking it was his legal duty to do it, may, in its nature, have given rise to a grievance: for example, the promotion of X and the exclusion of Y, or the admission of X to a taxi driver's licence and the exclusion of Y, either because Y feels he is being wrongfully excluded, or because, perhaps, an existing taxi driver, or numbers of taxi drivers feel that their business is being prejudiced by the admission of an excessive number of new taxi drivers. These are functions which the Garda Commissioner discharges. These are cases where one can well imagine that a disappointed applicant for promotion or a disappointed applicant for a taxi licence may have had a sense of grievance but may have grinned and borne it at the time thinking that he had no remedy. Now he may discover, a year later, that the gentleman who in good faith made this ruling or decision from which he feels he suffered had no lawful authority to make it at all. Perhaps he now thinks that he has a good chance to have this set aside and get the courts to oblige the proper Commissioner, now that he is confirmed in his job, to go through the process again and reopen the competition or whatever.

There the question of whether we can validate or legalise that which was illegal or had no lawful authority arises in an acute form. If we pass the Bill as it stands we are purporting to deprive of a right of action persons who at present have a right of action or, if they were to realise their situation, may have a right of action. I realise that any retrospective validation is potentially capable of depriving someone of a right of action. Anyone who relies on an illegality or feels he can complain about an illegality is deprived of a potential right of action, even if he never intended to take an action, if that illegality is not made legal. That is clear. At the same time I do not see how a state, if it is to do business, can avoid that kind of rough operation. The point my amendment is trying to get at is when the right of action which we are purporting to put off relates to something which is more than just an ordinary action in tort or contract, when it relates to a constitutional or what the courts are now calling a natural person right, I do not think this House, the other House and the President between them have power to deprive people of their right of access to the courts to assert that constitutional or natural personal right.

During the course of the Second Stage I said, on the question of earning a livelihood, that the courts have now asserted there is such a thing as a personal right of a citizen to earn a livelihood. That involved a declaration by the courts that he has an ancillary right to prepare for a career, train for it and so on. In the context of a hierarchical livelihood, namely one in the civil service or in the police force, I have no doubt that the courts would say, if they were asked, that there was implicit in it a right to a fair and equal chance of promotion. I am not trying to stir up trouble and I am sure the Minister would not allege such a thing, but supposing a sergeant disappointed in an inspectorship examination or a garda disappointed in a sergeant examination now finds that the decision under which he was unsuccessful was made, albeit in good faith, by an officer who was not the officer he thought he was, that person could have a right of action related to his constitutional right to a livelihood. I do not say he would win his action. In 99 cases out of 100 he would probably lose. Quite likely it would be held that no injustice had been done to him. Quite likely, if the competition was held all over again, the outcome would be exactly the same. I am not making any other assertion. However, at present he has a potential right of action and it is one related to a value in his life which the courts regard as a central personal right. The Dáil, Seanad and President would be slow to legislate in a way which would incontinently cut off rights of action of this kind. It may be that there are other rights of action we cannot avoid cutting off, but where this very sensitive area is concerned we should legislate with care.

We are specifically prohibited by Article 15, section 4, from legislating to any effect which is repugnant to the Constitution: "The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof". That provision has been made little of in this House on occasion. Before I entered the House it was made little of by the party who are now in office in regard to the Livestock Marts Bill, when it was repeatedly said to them by this side of the House that the Bill was unconstitutional. They paid no attention, but in due course it was found to be unconstitutional by the Supreme Court. In another instance in 1970—admittedly there was no contention between the sides then, my party were at the time anxious to facilitate the party in Government—the Dáil and Seanad passed the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Bill which was intended to facilitate the inquiries of the committee into the disappearance of £100,000 of public money during the Northern Ireland crisis of 1969-70. That Bill passed through both Houses in one day. It carried a fatal flaw in it for which I must accept some of the blame. If I had sat down and studied it for five minutes I would have spotted it. I did not do so. I was so carried along by the euphoria of total inter-party collaboration in trying to get the Bill through both Houses in order to facilitate the committee, I do not believe I ever read the Bill properly. That legislation was in due course shot down by the Supreme Court to the embarrassment and humiliation of the then Fianna Fáil Government.

Not every right to litigate can be protected. Any retrospective validation will cut off some of these rights. The right to litigate, which carries on its back the right to a livelihood, the right to some personal constitutional value which the courts have recognised, cannot be incontinently cut off. It is to try to preserve such rights that I have inserted this proposed section. If we enact it, it will be seen that the Dáil is conscious of its obligation not to legislate across constitutional boundaries and are conscious also of the duty laid on the State by Article 40, section 3, not only to respect but to defend and to vindicate the personal rights of citizens. If there is a remote chance of anybody feeling that a personal right has been bruised by a Bill of this kind, which purports to make legal that which is now illegal, we ought to include a saver of this kind to spare us the reproach of having ridden roughshod over its possibilities.

I oppose the amendment not because of any disagreement with the sentiment it expresses but because I have received very firm and positive legal advice to the effect that, firstly, it is unnecessary and, secondly, that its acceptance would be positively undesirable. I am advised that, in effect, section I could not be construed as purporting to deprive a person of a constitutional right of any nature. It is clearly set out in the Constitution, in Article 15, section 4, that the Oireachtas shall not enact any law which is in any respect repugnant to the Constitution and that any such law shall, but to the extent only of such repugnancy, be invalid. It has been clearly established by the courts that laws passed by the Oireachtas are presumed to accord with the Constitution unless they cannot reasonably be construed as being in accord. Further, it is not necessary to accept from legislation what would be unconstitutional, as the Deputy will appreciate. The Constitution has already done that.

To add to a section a proviso that said "This section does not permit anything to be done which would be repugnant to the Constitution" is unnecessary. If a provision purported to take away from a person any of his constitutional rights, it would be invalid. In other words, without the suggested amendment the section must be construed as not purporting to deprive any person of a constitutional right. Further, I am advised that to put into a Bill an amendment of the nature proposed would be highly undesirable both as a precedent and as bordering on the improper. To repeat in delegated legislation what is already in the parent Act is normally looked upon as ultra vires. It would be undesirable, to say the least, to repeat in legislation what is already in the Constitution. The section as it stands does not purport to take away any constitutional right from any person.

If in any situation it could be shown that any validation brought about by the section would adversely affect a constitutional right, then the section to that extent—and to that extent alone—does not apply. This, then, is the legal advice available to me, which indicates why the amendment is unacceptable.

I may add however, that apart from the fundamental objections which are mentioned in that advice and which I have now described to the House, there are further technical aspects of this amendment which would render it defective in certain respects. However, because the amendment must fall on the major grounds already mentioned, I do not propose to detain the House with details of those additional technical points unless the Deputy would wish to hear them, in which case I will be only too glad to mention them. I would emphasise that they are in my view only peripheral points on which agreement would not be difficult to find if the fundamental objections already mentioned did not exist.

I expected that the Minister would take this line. The Minister is now doing something which is a much more dangerous precedent. He is now falling back on a purely constructional approach, which the courts have adopted here in the last ten years or so, as permitting him or permitting any Minister or permitting the House not to bother about the Constitution on the grounds that, if they breach it, it would be void anyway. What the Minister is now saying is that, even if the effect of the Bill if enacted into law as introduced would be to prevent people or to purport to prevent them, which is the expression I used, from bringing actions to assert this or that kind of right, in that event the Bill itself would be a nullity. The Minister has no right to produce a Bill in this House and sy complacently that, to the extent that this Bill may work unconstitutionally, it is a nullity but that we knew that all along. Of course we knew that all along. The Minister could be easily supplied by the very same advisers who have given him the note which he has just read with plenty of examples of Acts which contain provisos and savers of all kinds intended to show that the Oireachtas in making the enactment has respected a particular constitutional value.

There are Acts about adoption, Acts about the custody of children and Acts about criminal procedure in which there are all kinds of savers about the welfare of children and about hearing both sides. The Extradition Act is an instance in which it is specifically provided that before somebody against whom an extradition order is made can be extradited he must be left in the country for a certain number of days. Of course that is not specifically necessary because to shuffle him out of the country forthwith is unconstitutional—so the Supreme Court said in the case of the State, Quinn v. Ryan. But that did not stop this House from legislating about extradition specifically to incorporate a provision which made sure that that unconstitutionality, so far as this House was concerned, could never come about.

That is the point. It is an absolutely new thing and, although the Minister's well written note makes it clear that he is being very well served by the people who are advising him, I am very surprised that they did not advert to the fact when they were briefing him that this is a new complacency. The Minister might as well be telling the House that whenever any Deputy here spots a potential constitutional flaw in a section he is only wasting his breath in mentioning it because, according to the Constitution, it will not be law and that if it is unconstitutional the courts will not enforce it anyway. It is not the business of this House to throw its burden on the courts. This House, like any other organ of the State, has to do its own job as it sees best and it must act inside its own sphere as though there were no such thing as a court in the country. It must act on the supposition that there may be a citizen affected by it who may never get to court, to whom something irrevocable might happen before he is able to assert his rights effectively. Whilst I see the line that the Minister is working on, namely, that the courts to the extent that this may work unconstitutionally, will regard it as a nullity, that does not relieve the Minister and the House of the necessity of making sure that this Bill is ex facie visibly in conformity with the Constitution when it leaves this House. At the moment, although I do not think there is anything sinister behind the Minister's point of view, in my view it is visibly possible, at least on one construction of this Bill which we ought to avoid if we can, to interpret it in such a way as to deprive someone of an important personal or constitutional right, or the right to litigate, the right to assert that right which he at this moment still has.

In regard to the technical points, if they are purely technical points about my drafting I will take the Minister's word, but I must say that simply as an academic matter I would be interested to know what is wrong with it without any desire to contest it.

I am not in a position to argue with Deputy Kelly the various points he raised about the constitutional aspects. I have outlined the legal advice which I got and which I have adhered to. However, I have made a careful note of the points made by Deputy Kelly and I am quite prepared to bring these points to the notice of my legal advisers for analysis. If, following that analysis, an amendment is deemed to be necessary, I will undertake to introduce it and have it considered by the Seanad and come back here again.

I am quite happy with that.

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

(Cavan-Monaghan): There is only one section in this Bill and what it proposes to do is to validate everything that Mr. McLaughlin did in his capacity as Commissioner between 28 January 1978 and 14 May 1979. The Bill says that everything he did is to be validated retrospectively. As I said on Second Stage, retrospective legislation at any time is undesirable and should be discouraged.

What I am afraid of is that this retrospective validation may in fact be validating acts done by the Commissioner which resulted in somebody being convicted in a court of law and being now in prison. The amendment put down by Deputy Kelly and now withdrawn sought to preserve any personal or constitutional rights. Is the Minister prepared to go through all the acts done by Mr. McLaughlin on the dates covered by the Bill to see if any act done by him resulted in anybody losing his liberty or resulted in anybody being convicted? Will he also check to see whether or not there is any person now in prison as a result of any action taken by Mr. McLaughlin between those dates?

There is an obligation on the Minister to do that. If he finds that there is such a person or persons in prison as result of some act done by Mr. McLaughlin, will he release that person forthwith? Surely the Minister is not telling the House that he could cure a defective proof in a criminal prosecution retrospectively. I say that he could not constitutionally do that. The type of case I have in mind is where an extension of the time from 24 to 48 hours during which a person may be detained has been granted under the Offences Against the State Act, 1939. If the detention of such a person was extended by a Superintendent on the authority of the Commissioner I believe that detention to be illegal. It is my belief also that if such a person made a statement during the second 24-hour period of detention and was convicted on foot of that statement he would have been convicted on a defective proof, on inadmissible evidence. Such a person should now be released.

I should like to ask the Minister if he has instituted an inquiry within the Department to make sure that nobody is being held in prison illegally at present. It is possible that there are other instances of people having being convicted on foot of actions taken by the Commissioner when he was not in fact the proper Commissioner of the Garda Siochána. I should like to know if the Minister has carried out any sort of investigation in the Department in relation to that matter. My view is that the Bill is a lazy man's way of getting over a difficulty created by the Minister who wrongfully dismissed a Garda Commissioner and improperly appointed another. The Minister used the most incomprehensible language possible in the Bill to tell us that everything done by the new Commissioner is covered. It is hard for a person with some legal training to follow some of the language in the Bill. I should like to know if any suspect was detained in custody for 48 hours on the authority of a Garda Superintendent authorised by Mr. McLaughlin.

Most of the points raised by the Deputy were referred to by him on Second Stage but I am sure that what Deputy Fitzpatrick said when expressing his view as a lawyer deserves attention. I do not think anybody likes retrospective legislation but I should like to state that this is not the first such Bill that has been presented to the Dáil. Some substantial weight must be given to the fact that provision in the Constitution, Article 15.5, states:

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

That is a prohibition on one specific type of retrospective legislation. I should like to put the point that that in itself is a fairly strong argument for the proposition that other kinds of retrospective legislation are not prohibited unless they offend in some other ways. It was suggested that instead of having a single section as is proposed we should have a Schedule setting out specific acts or types of acts done by Mr. McLaughlin since he took over which require validation. I should like to tell Deputy Fitzpatrick that I do not think this is necessary or is practical. I do not think it would be desirable if he means that only certain specified acts should be validated. The reason I do not think it would be practical to have a Schedule is that it would be virtually impossible to be certain that one thought of all the acts or decisions that might be called in question by somebody sometime. As I stated previously, I gave the ones I believed had any significance and I did not deliberately omit anything affecting the general public. I did not deal with internal disciplinary decisions for the reasons I have mentioned; they are internal Garda matters and anybody who thinks he was adversely affected needs no advice from me, or from this House, as to what he should do.

The suggestion was made that there is something unfair about members of a Government introducing a validating Statute when a private individual who has been found not to have adopted some particular procedure has to accept the consequences. I do not think Deputies would want to argue that the two situations are at all comparable. This validating Bill is not being introduced for my benefit or that of the Government but in the public interest because it is the public interest that would suffer if people succeeded by the use of what most people would call technical points to invalidate actions on grounds that had nothing to do with the merits of those actions. The principle I am advocating in the Bill is that it is clearly in the public interest that Parliament ensure, as far as possible, that an issue that has no relevance whatsoever to the rights or wrongs of any of the acts of Mr. McLaughlin should not be allowed to create a serious uncertainty in many areas.

I am satisfied that the Bill does not interfere with the Constitutional rights of anybody. The Bill is to be interpreted subject to the Constitution and once that is acknowledged I suggest that there is no valid reason for fearing that it can do anybody an injustice. I was asked if I had conducted a detailed study of the acts done by Mr. McLaughlin and my reply to that question is "no". My advice is that such a study would be impossible. It would be outside anybody's capacity to do such a thing.

The Deputy knows that in my opening statement I said that if any situation should arise in which it could be shown that any validation brought about by the section would adversely affect a constitutional right, to that extent and to that extent only the section does not apply. Whether or not such a situation arose in relation to any particular instance in the final analysis would fall to the courts for determination. The Bill does not in any way interfere with the jurisdiction of the courts. With regard to the admissibility or inadmissibility of statements, the Deputy knows better than I that that is entirely a matter for the courts.

(Cavan-Monaghan): The Minister referred to Article 15.5 of the Constitution, which has nothing to do with the argument I was making. The Minister shall be very aware of that. Article 15.5 of the Constitution provides that the Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

That means the Oireachtas shall not make something a criminal offence as on 1 January 1978 if as the law stood on that date it was not a criminal offence. Whatever I might accuse the Minister of doing, or suspect him of doing, I would not go so far as to say he would even think of doing that. It is so outrageous that no Minister for Justice or no Oireachtas would think of enforcing that sort of law. The Article talks about creating retrospective offences. My worry is about curing defective proofs in criminal prosecutions retrospectively.

Having listened to the Minister's reply I consider it to have been vague and of a waffling nature. I would go so far as to say it was in the nature of a smokescreen. I asked the Minister a number of straight questions and I should like him to answer them. I agree it would be a trojan task for the Minister to go back over everything Mr. McLaughlin did in his capacity as Commissioner, as he thought he was, between 20 January 1978 and 14 January 1919. That would be a very onerous job indeed. A commissioner has categories of functions and duties, some of them dealing with the appointment of members of the Garda Síochána. The Minister stressed that. Apparently he must admit a recruit into the Garda and the recruit does not become a garda until he is admitted by the commissioner. That is understandable. There is nothing wrong with validating that.

A commissioner has authority to promote people from the position of ordinary garda to sergeant. Apparently the sole discretion and the sole authority for doing that rests with him. People might have doubts about that and some garda might say: "Another commissioner might have promoted me." There is nothing of a major nature about that. The same is the case in a promotion from sergeant to inspector. There are also bye-laws, and so on, but there are sensitive areas like the signing of certificates under certain Acts of the Oireachtas making certain matters evidence in courts of law. That might be done by the commissioner or by somebody else on the authority of the commissioner.

People may have been convicted in courts of law, either in courts of summary jurisdiction or on indictment before a judge and jury, and if it had been known at the time of their trial that Mr. McLaughlin was not a commissioner of the Garda they would have had a perfect defence and the district justice would have had to dismiss the case or the judge would have had to direct the jury to acquit. The facts are that this man was not a commissioner of the Garda because the Government and the Minister did not carry out the law as it then was.

Somebody may have been tried before the Special Criminal Court and part of the evidence before the court may have been a certificate signed by the commissioner or by somebody on the authority of the commissioner. I mentioned a specific case and I should like to come back to it. Somebody may have been detained in custody for over 24 hours on the authority of the commissioner or on the authority of a superintendent of the Garda designated or appointed by Mr. McLaughlin to exercise that function.

There are sensitive areas. We are dealing with the constitutional rights of people. We are dealing with the liberty of people. We are dealing with whether people have been rightfully or wrongfully convicted of a criminal offence. I do not think it is asking too much of a Government and a Minister for Justice who have been found by our highest tribunal to have wrongfully dismissed one commissioner and, it follows, to have wrongfully appointed another, to suggest that they should go into the sensitive areas and find out did Mr. McLaughlin do anything in regard to a prosecution in the District Court, the Circuit Court, the Court of Criminal Appeal or the Special Criminal Court which led to the conviction of any party. If it had been known at the time that he was not a commissioner of the Garda this would have afforded an absolute defence to the person charged and would have secured his acquittal immediately. There is no way this House can cure defective proofs like that if those proofs were defective. It is not good enough for a Minister who has bungled the dismissal of a Minister for Justice——

I would never be able to fire myself.

(Cavan-Monaghan):——the dismissal of a commissioner of the Garda and bungled the appointment of another commissioner to say the law is there. They cannot take away any constitutional rights of a person and say he can get his lawyers to find out if he has been wrongfully convicted or wrongfully imprisoned and come back to the courts and they will let him out. That is the case the Minister is making.

I do not think that is good enough coming from the mouth of a Minister who has acted as he has been found to have acted by the Supreme Court. I go further and say there is an onus on such a Minister and his Department to check the position, to check the files. There are not thousands of these files. There are not even hundreds of them and there is no use in saying there are. There are probably only some dozens of the type of case I am thinking of but there is an onus on the Minister and his Department to check every file relating to cases where this sort of situation could arise. At the time of elections there are very often re-counts when the issues are not nearly as important as is the issue here.

I make no apology for raising this matter. The question of whether I approve of what subversives are doing does not arise but there is involved the principle of the taking away of a man's liberty on the basis of defective proof. The Minister has not told me whether there has been any check in his Department under the two headings I have raised. There is the question of all actions of the Commissioner in regard to the detention of suspects, in regard to the initiation of prosecutions and in regard to the presentation of proof to the courts. I might have a different view if I got from the Minister an unqualified assurance that all these areas had been checked carefully and that during the 16 or 18 months involved Mr. McLaughlin did not act in any of those cases but that if he did act no person was prosecuted or convicted on the basis of his proof. I have not had any such assurance. Indeed, the contrary has been the case. The Minister said he had not made any such investigation or check.

I regard this section as a very important precedent because we have had a statement from the Minister to the effect that there have been precedents for validating legislation. Perhaps that is so but is not this almost tantamount to validating the wrongful appointment of a judge? If a person were convicted by a judge who had been appointed wrongly, that person should be released immediately. If anybody has been convicted on proof provided on the authority or on the signature of Mr. McLaughlin during the period in question, that person should be pardoned immediately. If he is in prison he should be released immediately or if any such person has been released he should be compensated immediately. I am not trying to be mischievous in raising this matter. I do not like the section. It is too allembracing and too simple. It was frightening on the last occasion here that the Minister should have had the nerve to ask for all Stages on the same day and to appear to be annoyed because we would not agree.

Section 1 begins:

Everything (including the satisfying of any condition precedent to the exercise or performance of a power or duty) done, ...

I should like to hear what type of condition precedent the Minister has in mind.

or purporting to have been done, during the period from the 20th day of January, 1978 to the 14th day of May, 1979, by, to or on behalf or in respect of Patrick McLaughlin or any other person shall be, and be deemed always to have been, as valid and effectual as if the said Patrick McLaughlin had been validly and effectually appointed to be Commissioner of the Garda Síochána on the said 20th day of January 1978. ...

That is what we are being invited to do. This omnibus blanket-like validation could be validating defective proofs. What the Minister is saying is that defective proofs in criminal cases cannot be validated and that it is for the person who has a grievance to refer to the Constitution, to find himself lawyers and to go back to the courts to be cleared. That should not be necessary. The person who is on the defensive here is the Minister who is asking for retrospective validation. He is the one who should come here with clean hands saying that he had done everything possible to ensure that nobody has suffered a wrong as a result of his blunder. The Minister is asking for a concession. He is telling us that the Government made a mistake and that we are being asked to help clear up the mess that resulted. In such circumstances the Minister should not have been aggrieved because we would not agree on the last occasion to let him have all Stages of the Bill on the one day. He would have liked to have had the whole matter cleared up in half an hour.

The Minister should have been in a position to tell us that, for instance, there is a file in the Department or in the commissioner's department dealing with the initiation of prosecutions in criminal cases which had been checked and that everything was clear. He should have been in a position to tell us, for instance, that a file dealing with the detention of persons for periods longer than the period laid down in the Constitution for the detention of suspected persons had been checked and that again he was satisfied that nobody had suffered or was likely to suffer any wrong in that regard. The Minister should have checked out the files relating to all prosecutions in the courts between the dates in question in which the intervention of the Commissioner, either directly or indirectly, could have been a necessary proof. That is the sort of approach that we should have had. Instead, the approach so far has been to find out how quickly the legislation can be put on the Statute Book, how quickly this shameful, sorry and embarrassing episode can be dealt with.

The Minister would not have a great deal to fear even if he did produce a Schedule in the Bill or, if not that, if he did produce to the House the information which Deputy Fitzpatrick has requested. So far as a prisoner is concerned whose extended custody now turns out to be illegal because of the purely technical flaw that the ultimate authority for it, namely the commissioner, was not in fact the commissioner, that kind of inadvertent breach of liberty is likely to be overlooked by the courts. It is different if the breach is deliberate. Deputy Fitzpatrick is right in saying that the Minister could make a clean breast of these matters. I appreciate that the Minister has duties on both sides. Like the gobadán he has to watch all sides. At the same time he has nothing particular to fear here if what is in his mind is detention which went on a bit longer than it ought to have done, having regard to the fact that the person who authorised it turns out not to have had the legal authority to authorise it. That is a perfectly good example of an inadvertent good faith case of a breach of right and would not necessarily invalidate the evidence which would result if a person made a statement during that extra period. The Minister need not be too apprehensive about meeting it.

While Deputy Fitzpatrick was speaking I was thinking of something that the Minister said on my amendment. It is true that the courts will try to give a constitutional construction to a statute because they assume in favour of the Oireachtas that the Oireachtas did not intend an unconstitutional enactment. In the operation of that presumption they give if possible a meaning to an Act which is consistent with the Constitution and if possible they ignore a construction which would not be consistent with it. However, in the Haughey case which arose out of the Act passed here on the Committee of Public Accounts, the courts said that where, however, the constitutional situation simply is not reconcilable with the plain words of the Act, then they would not attempt to screw the Act out of shape, they would not put words into it which were not there and they would not torture it beyond the actual meaning which its words can be made to bear.

The technique adopted here is as follows:

Everything ... shall be, and be deemed always to have been as if he had been as valid and effectual as if ...

There could not be words more categorical than those. Suppose some litigant presents himself, whether it is a prisoner who now finds, as Deputy Fitzpatrick has so eloquently put it, that one of the proofs on which he was convicted has a technical hole in it on which he is entitled to try and rely, or whether it is a disappointed police sergeant who has not been made an inspector or a disappointed applicant for a taxi licence who has not been given one. That person's situation is in plain collision with the words of section 1. It is not possible to interpret section 1, without doing violence to its words, in such a way as to permit these persons—whether Deputy Fitzpatrick's prisoner or my would-be taxi drivers—to bring an action after the enactment of this Bill to assert his rights. I know that the Minister is being well and solidly advised that the courts have to make this presumption in favour of the House or the Oireachtas, but that presumption is not driven past the point where it does violence to the plain meaning of language. The plain meaning of language here is that every single thing done by, on behalf of or for Patrick McLaughlin or anybody else is to be deemed—in other words, the courts have to take it whether we like it or not—as valid and effectual as if this illegality which we are talking about had never taken place. That very absolute statement simply is not reconcilable with the continued surviving right of a prisoner or a disappointed taxi-driver to bring an action to have his rights asserted.

What I have been saying related back to my amendment in a sense, but I hope that the Minister when he is asking his advisers to think about this will make the point to them also, that the presumption in favour of an Act will go only as far as the double construction test as it is called. If two constructions are open on the wording of the Act, the one which is constitutional will be preferred to the one which is unconstitutional, and the courts will presume that the constitutional one is the one which the House intended; but where that does violence to the real meaning of words the courts do not operate that presumption. There are no two meanings in this section. There is only one meaning and that is that the courts willy-willy have to take everything in a certain category as being legal even though at the moment it is illegal. There is no way out of that. If they are to do that a certain class of litigant must necessarily be excluded from access to the courts. I would be grateful if the Minister would put to his advisers that this is not a case in which the so-called double construction test will find application.

The points raised by Deputy Kelly will be analysed carefully by the legal advisers. With regard to the comments of Deputy Fitzpatrick perhaps there are a few in this House, and particularly Deputy Fitzpatrick himself, who will realise that what he is asking is impossible, impractable and inappropriate. There is no question of fear; that does not enter into it. The Deputy knows that I have no function in the area of prosecutions and it is not for this House to decide if somebody is imprisoned wrongfully. Nobody is imprisoned otherwise than on a conviction in a court that has competent jurisdiction. Deputy Fitzpatrick believes that a conviction based on a statement taken in certain circumstances which he mentioned is a defective conviction. That belief of the Deputy is not shared by everybody.

(Cavan-Monaghan): It has been so held by the Supreme Court.

It is not the view of the law, and I have no intention of ordering any release of anybody who may have been so convicted. The Deputy knows that it is open to a convicted person to appeal and that there is legal aid if such person has a case to make. If the Deputy means seriously that a person convicted of bank robbery should be released by me as Minister for Justice just because certain Deputies might think that there may have been a defect in proof, I disagree emphatically with his approach. Only a court of law can decide if a statement is admissible or inadmissible and nobody can say in the circumstances envisaged that these statements would not have been admitted. My legal advice is that they almost certainly would, but in any event only a court could say and it is not for me as Minister for Justice or anybody who would be Minister for Justice to try to release people in such circumstances. I am satisfied that what I am doing is right and proper. I am not going to chase the other matters which Deputy Fitzpatrick brought up about rushing amendments.

When the Minister says that he has good legal advice that the Bill now before the House will clear up all the anomalies that Deputy Kelly and Deputy Fitzpatrick referred to, will he tell the House what legal advice he had before he took the action which is now necessary to bring a Bill before the House? Am I right in assuming that the Minister's decision resulting in a necessity to have this Bill before the House now was purely a political decision, that there was no consultation between the Minister and his legal advisers in the Department of Justice and that the document now before the House is really a document to retrieve the Minister from a very difficult position?

The Minister has left himself open to many charges. Some people might now be in prison because of evidence taken during a period in which the person should not have been in custody. This whole sad sordid affair is a total indictment of the Minister for Justice. It is quite natural for a Minister or anybody else to make mistakes but before the Minister took the step of removing a commissioner of the Garda from office and leaving himself in a weak position in relation to appointing a new commissioner he should have considered all the consequences of his action. Who will pay the cost of this blunder and how much will it cost? The Minister for Justice should have gone into these things before he took this action. I leave the technical and legal points to Deputies Fitzpatrick and Kelly to debate but on a strictly political plane it was extremely wrong to take such a step and it shows a basic weakness in the person responsible for the Department of Justice. I accuse the Minister of being totally political.

When the Minister was speaking on the last day he referred to private briefings with members of the Fine Gael Party and members of the Labour Party. I refute that completely. I spoke to no one in the Garda authorities.

The Deputy is now getting back to Second Stage. We are dealing with only one matter in this section and that is validations.

We are looking to the briefings which the Minister's party got from all ranks of the Garda which led them to make the promises they did in the first instance. What kind of briefings were they?

We are dealing with section 1, which deals with validations. We cannot go back to Second Stage.

In relation to the need to have Committee Stage of a Bill debated in the House one must refer back to statements made on the First Reading. If the Minister for Justice were more open about the matters in relation to the Garda authorities and about the Department of Justice in relation to security matters we might have a heal their police force. The Minister said that the full story had not been told yet, but I hope that before this Bill is passed the Minister will tell the full story. Apart from the mishandling of the whole affair by the Minister, I protest that the cost of this mistake in terms of money and lost energy must be enormous. This surely points the finger at the Minister, for total incompetence.

We are not going to go back to a Second Stage debate.

I have no intention of going back to a Second Stage debate or of going into the events which led up to the dismissal or resignation of Mr. Garvey.

It would not be in order on this section.

However, I reject the allegations made by Deputy Harte. I will leave it at that. There will be a time and place when the Deputy moves item No. 77 on the Order Paper——

We are dealing with section 1 which is a validating section and nothing else.

(Cavan-Monaghan): The Minister said that what I requested was not possible. To date I have been dealing with arrests, detentions, prosecutions and proofs in criminal cases in which the Commissioner of the Garda, either personally or by way of delegated authority, has a part to play. I requested that these be checked and cross-checked during the period in question and the Minister tells me that that just is not possible. I do not accept that because the Minister knows as well as I that the cases I have in mind in which the commissioner has to certify or authorise something are quite limited. All I am asking is that between 20 January 1978 and 14 May 1979, that type of case be checked and all matters arising therefrom be checked.

The Supreme Court is very jealous of the liberty of the individual and the constitutional rights of the person. The Minister on the last day when introducing the Bill was critical of courts in general and went on to say in a backhanded way that he supposed that sort of thing was not too big a price to pay for the separation of the judiciary from the executive. I cannot help feeling that that statement, coupled with a very sinister interjection from the Minister for Finance to the Leader of the Opposition when this matter was raised in the House before about legislation requiring a two-thirds majority, stinks a bit. We all know what legislation requiring a two-thirds majority involves. The only place that I know of its involvement in this sort of matter relates to the removal of a judge. I sincerely hope that the Minister was not thinking along those lines. While of course there would be some trouble attached to it, I am convinced that it would not be a very big job to check the files I have mentioned and to take the necessary action. If anybody has suffered by a mistake made by the Minister for Justice or the Government of which he is a Member, that person has the right to be absolved.

I do not like to hear people saying that these are technical matters. If a person is to be deprived of his liberty he can be so deprived only in accordance with the law strictly and accurately applied and is entitled to put up, as a defence, that the law has not been properly carried out. That is what the law says. If we start at the thin end of the wedge today—saying that what we are doing now is only curing a mess or a mistake made by a Minister or a government, validating a conviction arising from that mess or mistake—what will we be at next? We are curing defective proofs and that is a short step only from creating retrospective offences.

Or abolishing ground rents.

(Cavan-Monaghan): We are told that that would create all sorts of constitutional amendments.

And make them retrospective to June 1977.

(Cavan-Monaghan): What led to the abolition of ground rents appeared in black and white in their manifesto. What led to this was a verbal promise only carried about from door to door.

That allegation has already been denied.

(Cavan-Monaghan): It was not in black and white.

The Chair has already firmly ruled to the Minister and to both sides of the House that we are not going to continue on those lines. We will keep to section 1. I would say to Deputy Fitzpatrick that he has repeated his case on about three occasions and the Chair has been terribly lenient with him.

What telepathy with the soliders of destiny who really worked with superb skill. It is a pity that the Minister's winks do not get on the record of the House.

What is Deputy Harte trying to imply? Sometimes the Chair would like to know. In fairness to the Chair I think I can say that Deputy Fitzpatrick has repeated his case on three occasions now. I am sure the record will show that.

(Cavan-Monaghan): What I am saying is that the Minister for Justice has rejected my argument on the grounds that it would not be physically possible within his Department, or reasonably physically possible within his Department, to do the sort of check or carry out the sort of investigation I have requested. I simply do not think that is so. It would be a comparatively simple job to check the type of file I am talking about; the Minister knows the type of file I mean. I am not prepared to accept the statement by the Minister that it is simply not possible. It is not good enough to have to wait until the accused person—whose fault this mess is not—gets research done and finds out he has not been properly convicted. I am not satisfied at all that the Minister has made a case against the reasonable request I am making. The Minister should be in a position to come in and say: Look, I have done that and I am satisfied that nothing arises here; I am satisfied that the type of things we are validating are largely routine, largely innocuous; certainly we are not validating or covering up anything that could or did take away a person's liberty.

There is the question of promotion from the position of garda to sergeant, from sergeant to inspector, inspector to superintendent, superintendent to chief superintendent and so on. I believe that a number of such promotions were carried out by the commissioner at the request of the Minister or of the Government between the dates I mentioned, January 1978 and May 1979. It is unfair and unjust that people who were in line for promotion were taken off that line and other people promoted in their places. I do not know exactly what are the regulations. I do not know what part the commissioner plays in these promotions but I am satisfied he plays some part. Somebody must bring these names before the Government. I hope the Minister does not go out and get them himself; somebody has to bring the names before the Government for promotion. If there were people taken off promotion lists, and other promotion lists created immediately after the wrongful dismissal of one Commissioner and the irregular appointment of another, that is something that should be looked into, investigated and rectified. I know from my experience in government that the Minister for Justice brings names of people for appointment before the Government but he gets those names from somebody. He gets them as a result of some competition, enquiry or some interview board set-up. In this case it is fairly common knowledge that in or about the time of Commissioner Garvey's wrongful dismissal and Commissioner McLaughlin's irregular appointment there were interviews held, people taken off an approved list and other people put on an approved list. Certainly those people have suffered a loss and feel aggrieved in that respect. Are we being asked to validate that? I mentioned this on the last occasion on which we debated this matter when I was told, in a two-sentence reply by the Minister that these interviews or lists did not count at all, that there was so much irrelevance and that it was not necessary to validate them. I should like the Minister to give us an assurance that we are not validating that sort of thing.

I do know that when one gets above the position of inspector the Government make the appointment of superintendent, chief superintendent and so on, but I think the commissioner must play some part in it. I want to know if the lists for promotion were changed immediately subsequent to the appointment of Mr. McLaughlin, if people who were recommended to the Government for appointment were ignored and if other people were appointed in their places. If that is so, I deplore it in the strongest possible terms. The House should be told about it and should not be told about it in a two-sentence remark by the Minister for Justice saying that it is quite irrelevant and, in so many words, that he would appoint whomsoever he likes.

I welcome Deputy Fitzpatrick's move away to new ground.

(Cavan-Monaghan): I moved away at the request of the Chair.

I do not wish him to go back over that ground, not that it was my reason, attributed to me by Deputy Fitzpatrick, for not doing an impossibility. I also stressed very strongly how inappropriate it would be for me to give my reasons for saying that. It would be well for the Deputy to remember that.

(Cavan-Monaghan): I do not understand what the Minister means by “inappropriate”.

I explained what I meant by that on at least four occasions.

(Cavan-Monaghan): I can honestly say that I did not get any real explanation for “inappropriate” and I would be glad to have it.

With regard to the promotions issue, which has been raised by the Deputy, I would like to assure him and his colleagues in the House that there is no question of any promotion having been made at my request as Minister for Justice or indeed made at the request of the Government. Promotions to the rank of superintendent and above are made by the Government and the recommendations of the commissioner with regard to these appointments have no legal status. I believe the Deputy is not serious in suggesting that those promotions should be cancelled. There is nothing to do with them that would validate the promotions to sergeant and inspector. The Deputy knows that as well as I do. That should cover the point made by Deputy Fitzpatrick.

(Cavan-Monaghan): I want to get back very briefly to the first point about the convictions, because the Minister has introduced it again. I make no apology for raising matters of proofs in criminal prosecutions. I want to repeat again that the nature of those prosecutions has no bearing on the matter so far as I am concerned. I am a bit alarmed to hear the Minister saying that he was glad I moved away from that. He repeated that it would be difficult, if not impossible, to do what I requested and that it would be inappropriate. I want to know what the Minister means by “inappropriate”. I want to call a spade a spade. Does that mean that he is afraid of taking the lid off some mess? Does it mean that it would be inappropriate because he would find something that he does not want to find? I would be glad to hear the Minister telling us what he means by “inappropriate”. I believe, in those particular circumstances, that it means that it would not be the thing to do. I do not want to put an interpretation on “inappropriate”. I want the Minister to tell us exactly what he means by it.

We are dealing here with a very serious matter: the validation of all acts done by the highest police officer in the State between 20 January 1978 and 14 May 1979. All those acts include acts which in my opinion may have wrongfully taken away a person's liberty or have resulted in the imposition of a substantial fine on a person or some other penalty on him. Why does the Minister think it would be inappropriate to ascertain if such penalties were wrongfully imposed? Why would it be inappropriate to check those facts? It follows from what the Minister has said that he has not checked them. I will go further and put it on record now that standing here, assessing the Minister's approach to this, I do not believe that he wants to check them. I believe he fears that, if he checks them, he will find something wrong.

I do not care who was wrongfully detained or what he was wrongfully detained for. If such a person is wrongfully detained or has been wrongfully punished, if he has not been punished in accordance with the law, he has a grievance and it is up to this Legislature to see that the grievance is rectified and that compensation is made to that person. We may be speaking about one man today but we have to think about other people in the future who will find themselves in the same place and the same circumstances. We are establishing a precedent by what we are doing here today. It is a very dangerous one and the Minister's whole approach to this matter has been dangerous and has been sinister. I want to know what the Minister means by "inappropriate".

I would like to say for about the fifth time to Deputy Fitzpatrick that there are a number of reasons why I told him that it would not be right for me to do what he suggests. One of them is that it would be inappropriate for the Minister to do that. I say it would be inappropriate because the Deputy would be asking me to exercise the functions of the court. That is not my job. I have already told the Deputy that I am not the adjudicator. I should not be the adjudicator nor would I want to be it, and this House would not want me to be. If there is somebody who is wrongfully in prison, I have already said—and the Deputy will clearly see that from the record when he goes back over it—that it is a matter for the courts to decide and not for me to decide. Everything possible in the way of legal aid will be available to those people to see that justice is done. That was what I meant by "inappropriate". I cannot convince the Deputy and bring him over to my point of view. I am not agreeing with the Deputy's point of view. I explained the difference between us and I said why I disagreed with him.

(Cavan-Monaghan): The Minister now makes the case that it would be inappropriate for him to check the files, as I have requested him to do, because he would then be putting himself in the position of some sort of judicial person and that he would in some way be usurping the rights of the courts. We find ourselves in an extraordinary position arising out of the wrongful dismissal of the chief of police and the irregular appointment of another. One of the serious consequences that appear to me to flow from that is that some person or people may now be in prison or may have been penalised or suffered a penalty because of the wrongful and irregular appointment of a commissioner of the Garda Siochana. The Minister tells me it is not for him to sort that out, and if he did that he would not be acting as Minister for Justice but would be usurping the judicial appointment of some judge. All I want to say is that the Minister created the mess we are being invited to clear up. About that there can be no doubt.

I wonder did I?

(Cavan-Monaghan): Does the Minister want a discussion? Does he accept the Supreme Court's decision?

(Cavan-Monaghan): The Minister must accept that he or the Government created the mess.

May I comment on that?

(Cavan-Monaghan): The Minister says he cannot do the check I am asking for. This is so important that the Government should set up a select tribunal of judicial personages to inquire into the very thing I am asking and to report to this House whether any people have been wrongfully penalised in court cases or by detention in custody as a result of the wrongful appointment of this commissioner. There is provision for such an inquiry and if the Minister thinks that he or his Department would not be the proper people to do it, before we close this chapter, before we send this Bill out of the House—and leave it to the High Court to finish the Garvey episode by assessing damages, which has nothing to do with this—and before we give our validation to it, the Government should undertake to set up an inquiry presided over by a judge or judges with power to get these files, to check these cases and to see if anybody has suffered a wrong which we cannot validate but which we are trying to push under the carpet and cover up once and for all. Has the Minister any objection to doing that?

Is section I agreed?

(Cavan-Monaghan): Do not rush it.

I am not rushing it. Deputy Fitzpatrick has made the same statement on six occasions.

(Cavan-Monaghan): With due respect Sir, not since this Dáil sat has something so important come before us.

The Chair must take notice of repetition. The same case is being made time and time again.

(Cavan-Monaghan): That is the first time I made that point.

The Deputy must be joking. I repeat that there is nobody in prison otherwise than on conviction in a court of competent jurisdiction. That is the position and Deputy Fitzpatrick's belief that conviction based on statements taken in certain circumstances, like those he mentioned earlier——

(Cavan-Monaghan): Proofs in general——

That is the Deputy's belief, but it is not shared by my legal advisers and the law officers say that is not so. Either the Deputy accepts that or he does not. I cannot make him accept it.

(Cavan-Monaghan): I am asking the Minister to hold a judicial inquiry.

And I say no.

Question put and agreed to.
Section 2 agreed to.
Title agreed to.

When is it proposed to take the next stage?

In view of the very large number of complicated matters which were discussed here today and the Minister's undertaking, which I was very glad to get, I propose to leave it until next week.

Next Tuesday afternoon.

Subject to the agreement of the Whips.

I am not normally in charge of this Department and I am assuming Deputy O'Keeffe will be here.

Report Stage ordered for Tuesday, 19 June 1979.
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