Vol. 473 No. 2
I note that the Order of the Dáil today deems this business to be concluded by 4.30 p.m.
Amendment No. 1 is in the name of Deputy John O'Donoghue. Amendments Nos. 2 and 5 are alternatives. Is it agreed that we take amendments Nos. 1, 2 and 5 together? Agreed.
I move amendment No. 1:
In page 4, line 2, after "abolished." to insert "All offences carrying a penalty of imprisonment for a period of five years or greater shall henceforth be known as felonies.".
This amendment arises from the Minister's proposal to abolish the concept of felonies as we have known them and to introduce the concept of arrestable and non-arrestable offences. On Second and Committee Stages Deputy Lenihan and I referred to the difficulty of completely abolishing the concept of felonies given that Article 15.13 of the Constitution states:
The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.
The Minister was attempting to overturn a provision of the Constitution by way of legislation. As a provision of the Constitution can only be overturned by the electorate, it is obvious the Bill needs to be amended. My amendment proposes that all offences carrying a penalty of imprisonment for a period of five years or more shall henceforth be known as felonies. Deputy Lenihan, who brought this matter to the attention of the House on Second Stage, has tabled a similar amendment. The Minister clearly accepts our argument as she has also tabled an amendment in this respect. I have no great problem with the Minister's amendment which states:
In page 9, to delete lines 26 and 27 and substitute the following:
"(4) For the purpose of Article 15.13 of the Constitution and for that purpose only, offences which were felonies immediately before the commencement of this Act shall continue to be treated as felonies and, accordingly, for all other purposes any rule of law or enactment whereby an offence is, or is regarded as, a felony shall be construed as relating to an indictable offence.".
However, the only purpose for which a felony will now exist in law is, strangely enough, for Members of the Houses of the Oireachtas. Some cynics may say this is appropriate.
I was dissatisfied with the Minister's reply on Second Stage and I am glad she has accepted our point that the term "felony" is used in the Constitution and we may not abolish it. The legislation will abolish the concept of a felony for all purposes except for the limited purpose of defining an offence which it may be possible for us to commit and in respect of which we may not claim privilege. I thank the Minister for tabling her amendment which is more extensive than those tabled by Deputy O'Donoghue and me. As amendment No. 5 meets the substance of our point, I will not move my amendment.
The purpose of the amendment tabled by Deputy O'Donoghue on Committee Stage was to take account of the reference in Article 15.13 of the Constitution to the term "felony" in respect of the provision of immunity from arrest for Members of the Oireachtas. The Minister for Justice stated on Committee Stage that she would consider tabling a Report Stage amendment on this matter.
The Bill, as drafted, will increase the level of immunity from arrest envisaged in Article 15.13 as Members of the Oireachtas will be liable for arrest in the circumstances set out in that Article only in the case of treason and breach of the peace but not in the case of a felony. The inclusion in the Bill of a saving provision which will "save" felonies "For the purpose of Article 15.13 of the Constitution and for that purpose only..." is a sounder approach to this problem. Amendment No. 5 achieve this purpose and meets the concerns of the Deputies.
I move amendment No. 4; In page 4, line 28, to delete "including" and substitute "excluding".
Our thanks are due to Deputy Lenihan for bringing this matter to the attention of the House as otherwise the Bill would have been clearly unconstitutional. There is every possibility that the Bill may prove to be unconstitutional in that it allows for arrest without warrant in an individual's family home. There is a considerable amount of authority to back up this suggestion. This is why I seriously question whether the proposed power should be conferred. The minister is introducing legislation which seeks to amend Article 40.5 of the Constitution which state:
The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
There has been a considerable amount of legal precedent concerning the inviolability of an individual's dwelling house. Mr. Justice Walsh, one of our most eminent jurists, stated in The People v. O'Brien, 1965 —Irish Reports 142, page 170:
In Article 40 of the Constitution the State has undertaken to defend and vindicate the inviolability of the constitutional rights of the citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence.
It appears from other cases such as Ryan v. O'Callaghan and King v. the Attorney General that what the Minister is proposing in section 6 may prove unconstitutional. This argument may stand up ultimately in the Supreme Court. I am entitled to ask if the Minister for Justice will accept accountability and responsibility if section 6 is found to be unconstitutional. Instead of reforming the criminal law the Minister has embarked on what can only be described as an inevitable path of constitutional challenge. Far from assisting in the fight against crime, she is hampering it by seeking to overturn constitutional provisions by way of legislation.
Since 1765 the executive has been prevented from claiming a general warrant to look through private premises. This has been one of the cornerstones of our jurisprudence and it was even carried through in Article 7 of the 1922 Constitution.
The information available to the Minister is that the legislation is in accordance with constitutional law. Section 6 provides that, for the purposes of arresting a person for an arrestable offence, a member of the Garda Síochána may enter a family home. The definition of "arrestable offence" and the changes set out in the legislation are the basis on which it is deemed to be constitutional.
As it is now 4.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendment set down by the Minister for Justice and not disposed of is hereby made to the Bill, that Fourth Stage is hereby completed and that the Bill is hereby passed".
