PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923. - IN COMMITTEE.

It shall be lawful for an Executive Minister to cause the arrest and, subject to the provisions of this Act, to order the detention in custody in any place in Saorstát Eireann of any person.
(a) in respect of whom such Minister shall have received a report from a responsible officer that there is reasonable ground for suspecting such person of being or having been engaged or concerned in the commission of any of the offences mentioned in Part I. of the Schedule to this Act, or
(b) in respect of whom such Minister shall have received a report from the military authorities that the detention of such person is a matter of military necessity arising out of the existence of a state of war or armed rebellion, whether local or general, or
(c) in respect of whom such Minister shall have received a report from a responsible officer or from the military authorities that for reasons stated in the report the public safety is endangered by such person being allowed to remain at liberty.

I put down an amendment:—"Before the word ‘It' in line 38 to insert the words ‘subject to the provisions of the Constitution.'" My reason for that is that the Constitution lays down in Sections 6, 7, 70 and 72 some important rules which cannot, as far as I see, be broken through. Any Bill that controverts the Constitution is in itself illegal. When a Bill is passed by the Oireachtas it is always to be considered in collaboration with the Constitution, and when the two clash the Constitution rules. I am not sure, but I think that is the Constitutional state of affairs. Section 6 of the Constitution states, "the liberty of the person is inviolable, and so on, and in Sections 7, 70 and 72, you will find similar provisions.

It seems to me that a good many of these Articles laid down here in this Bill now before us are clearly contrary to the Constitution. That would not matter if it was in time of war. Then, of course, the Constitution states very clearly and definitely that these Rules do not apply in time of war. So that, if this Bill referred merely to a time of war there would be no such objection to be raised. But it is clearly not that, because it is meant to continue after the war is over. For instance, any of those days the judges may decide, and it is for them to decide, that a state of war no longer exists. As long as they do not say that, the state of war is presumed to continue. But once the judges state that war has ceased, that in their opinion war has ceased, then, and therefore, they must grant a habeas corpus. Then we will have to go by the Constitution. It is not for me to say whether these do constitute breaches of the Constitution. I merely put this down subject to the provision in the Constitution. There are two things that might occur, if it is contrary to the Constitution. First it is contrary to the Constitution, and therefore is not law; or, as an alternative, it might be possible to amend the Constitution. If it is a law amending the Constitution I think the Minister ought tell us that. There ought be a preamble that this law amends the Constitution. The Constitution can be amended, but I do not see any such provision in this Bill. If the Bill is in accordance with the Constitution there is nothing more to be said about it.

This is not a Bill to amend the Constitution. The Constitution is the touchstone of every Bill and will be the touchstone of this. The Constitution provides that persons shall not be detained save in accordance with law. I do not know whether Senator Colonel Moore is suggesting that persons detained under this Act will not be detained in accordance with law. I am opposing the amendment moved by him on the grounds that it is not an improvement of the Bill, that it is superfluous and that it is a bad precedent to set in our legislation that a particular Bill which we are considering is to be read subject to the Constitution. Every Bill passing through the Dáil and Seanad will be read subject to the Constitution, and the words which the Senator proposes to insert are quite superfluous.

I agree with every word the Minister has uttered. It would be a great mistake to suggest that any Bill which did not specifically amend the Constitution could be read otherwise than in accordance with its provisions. I hope the amendment will be withdrawn.

I do not know why the Minister should consider the words suggested superfluous.

AN CATHAOIRLEACH

It might be helpful if Senator Moore referred to any portion of the Bill that he considers provides for trial for criminal offences without a jury.

That is very easily done. There is not a jury mentioned from end to end. Section 1 is a good example.

AN CATHAOIRLEACH

That does not affect in any way a person's right to have a jury when he is tried. Whenever he is tried it does not affect his right to have a jury.

But the Minister can keep him in prison.

AN CATHAOIRLEACH

That is a different question. Your suggestion is that the Bill was ultra vires with the Constitution inasmuch as it deprived a person of his right to be tried by a jury. The clause does not do anything of the sort. I do not think you will find any provision in the Bill which deprives a person of the right to be tried by jury.

The Constitution indicates that the liberty of the person is inviolable. That liberty is not inviolable if the Minister can take a man and shove him into prison whenever he likes.

According to law.

But the law, I maintain, would be contrary to the provisions of the Constitution.

Amendment put and negatived.

I beg to move: —Section 1: to delete in line 38 the words "an Executive Minister," and to substitute therefor the words "the Executive Council or any Minister thereof authorised by them." This is very small beer compared with the vital amendments which are coming on later. The object of it is to fix the responsibility for these very wide powers as far as possible and to leave it as little vague as possible.

In the definition which we have of the words "Executive Minister" it is stated that the Executive Minister mentioned in the Bill shall be a Minister who is a member of the Executive Council. That absolutely secures what the Senator's amendment wishes to secure—the collective responsibility of the Executive Council for acts performed under the provisions of the Bill. The Executive Council are, collectively, responsible for all matters concerning the Departments of State that are administered by any one member of the Executive Council, and that collective responsibility is observed throughout the Bill. That is why no one member or two members of the Executive Council were mentioned specifically. There is no specific mention in the Bill of the Minister for Home Affairs or of the Minister for Defence, because the things done under the Bill will be matters for which the Council will be responsible as a whole—collectively responsible.

Then you do not object to my words?

They are unnecessary.

I think what the Minister has stated is correct, but I should like to urge him to consider that, from the point of view of the public, it would be wise to insert words such as are proposed. The substance, I admit, is the same. Where you have an Executive Council there is, of course, collective responsibility, and the whole Council would be, under the present words, collectively responsible for the act of any one Minister. But the way in which the amendment appeals to me is, that it is desirable that this Bill should be carried out by one, or at most two,—possibly the Minister for Defence and the Minister for Home Affairs, or either or both. It seems to me as it stands now that the public will say that the Minister for Education is interning somebody or the Minister for something else. I admit collective responsibility is there, but I think it would be better if the Council themselves delegated their powers to one or two of the Ministers named so as to make it clear. I would not be in favour of pressing the amendment, but I hope the Minister will consider the matter and see whether it would not, from the public point of view, make it clear.

I am of opinion, and I am confirmed in that opinion by the Attorney-General, that in fact the acceptance of the amendment would be rather to weaken the position and restrict, to some extent, responsibility. The words "Executive Minister" were used throughout the Bill to emphasise the collective responsibility aspect. If we substitute for that, that a particular Minister authorised by the rest may do these things, then that tends to limit, and will in the public mind, tend to limit the responsibility for acts done under the Bill.

In view of what has been said and as there are other amendments far more important, which I really believe in, I ask leave to with draw the amendment.

Amendment by leave withdrawn.

I beg to move:—Section 1—"To delete all after the word ‘shall' in line 42 to the word ‘officer' in line 43, and to substitute therefor the words ‘certify in writing that he is satisfied.'" The object of the amendment is to endeavour, to some extent, to meet a point to which I referred on the Second Reading. The Minister in reply, possibly not to remarks of mine, but to some points made in the discussion, said that some Senators had objected to portion of Section 2, which gave a responsible officer of the Civic Guard power to arrest. As far as I am concerned I certainly did not object to anything of the kind, because I do not see what the Civic Guard are there for except to arrest persons whom they suspect. But the feeling, I think, is this, that the object of the Government will be met every bit as well by the words I have suggested, which would put the whole responsibility on the Minister concerned without his having to state exactly, or even state at the tribunal, the exact source from which he received his information.

If you are going to have power of interning given a Minister, then I think it is much better that he himself should be satisfied that the reasons put forward for suspicion are good. As it stands in the Bill, you bring in your responsible officer, who may be either a Superintendent of the Civic Guard or a Commandant of the Army. What I want to avoid, if possible, is bringing in these new forces, particularly the Civic Guard, and mixing them up with this Bill in the eyes of the public. I should like it to be made quite clear that if an officer of the Civic Guard arrests a man he brings him forward in the ordinary Courts for trial, but if in the meantime, under the Bill, the Minister interferes and interns him, the public cannot blame the Civic Guard officer who is responsible. This and another amendment further down would have the effect, in Section 1, of placing the full responsibility on the Minister. Exactly where he gets his information he is not bound to disclose, and it would not bring in the Civic Guard to the same extent in the public mind. I hope the Minister will consider this, and see whether it is not possible definitely to remove the advice of this officer of the Civic Guard in regard to interning.

I wonder whether the Senator has considered this aspect: that it might well be a weakening of the section to leave out any reference to a definite report from a responsible officer, and that the amendment that he proposes to substitute would, in fact, enable the Minister to act without such report, simply on the ground that he personally was satisfied, possibly by something that he heard from some reliable person who had been in to see him on other business, or possibly in some other way, that there were reasonable grounds for suspecting a particular person of being engaged in the commission of the offences mentioned in Part I. Whether it is really strengthening the Bill to substitute a mere certificate from a Minister for a definite Order based on a definite report from a responsible officer of the rank named in the Bill is simply a matter to consider. If the Senators generally consider that there is virtue in the amendment I would not oppose it, and I would be prepared to move in the Dáil that it be accepted.

Do I understand that the word "officer" is to remain?

AN CATHAOIRLEACH

No. If the amendment is accepted it will read "in respect of whom such Minister shall certify in writing that he is satisfied that such a person." I do not know how the section then would read. I suppose it will read "is satisfied that there is reasonable ground"—the word "officer" would go.

That will make sense of it.

In reply to the Minister, I might say that I have carefully considered the point he made, and my feeling is that this is abnormal legislation for a period of six months. The ordinary carrying out of the law by the Civic Guard is a thing which we want to establish definitely in the country by means of the ordinary law. It will be permanent; it is becoming permanent; and it is essential that the respect and complete confidence of the country and of the people of all sections should be gained by the Civic Guard in the exercise of their duty. I think, even if it were weakening them—I do not think, for reasons which I will state, that it is —that it would really be what the Government require, and would help, in any case, to prevent the danger of our mixing the new things which we are setting up—which we are proud of and hope to be permanent—with this temporary legislation, however necessary it may be.

Personally I do not think that, if a man is a Minister, and fit to be a Minister, he will do as Mr. O'Higgins suggests— which I know he does not mean—simply take something said to him by someone who was in on other business. I would rather, if we are going to have internment, to have a statement signed by a Minister or his responsible official, to the effect that he is satisfied that the grounds are reasonable without stating that he has a report from a Superintendent of the Civic Guard. I suggest, therefore, that, instead of weakening, it would rather strengthen the section. What I want to particularly avoid is that a person in a town should feel that a certain superintendent in the Civic Guard was the man who reported him or his cousin, whoever it is who happens to be interned under this Bill. It is an endeavour to try and keep the Civic Guard out of such a position. I thank the Minister for the way he met this amendment, and in stating that he is willing to leave it to the Seanad. On this occasion I hope the Seanad will agree to the amendment.

As it is going to be left to the Seanad, I think, on looking forward a little into the Bill, that Senator Douglas is fighting for a principle that underlies Clause 2, where the Executive Minister takes the whole responsibility on himself, and where the officer of the Civic Guard makes the arrest and only carries out the ordinary law. If there is anything to be done beyond the ordinary law to carry out this Bill, then the Minister takes full responsibility. I think what Senator Douglas is asking for is that much of the same principle should apply to Clause 1. As it strikes one on looking at the section, if the Minister does not think the amendment injures the Bill, it seems reasonable.

I think the principle is that the Minister can be changed if he does an unpopular act. He can go away, taking the bitterness he has raised with him, but the Civic Guard cannot be changed.

The whole point at issue in this section is not whether the Minister shall certify that a person is to be detained, but whether it shall be on the report of a responsible officer. The fundamental issue is giving anybody the right to arrest and detain any citizen in this country without trial.

AN CATHAOIRLEACH

That does not arise on this amendment. That would arise on an amendment to leave out the section.

With all respect, the manner in which it is to be done is under consideration. If I understand Senator Douglas's amendment aright, it is to amend the section in so far as it is provided that on the recommendation of an officer the Minister shall have power to do so and so.

AN CATHAOIRLEACH

Quite right But what you said was that the cardinal mistake was in giving power to arrest at all. That is an argument in favour of an amendment to omit the section.

Am I not in order in discussing whether it is on the advice of the police officer or the Minister himself that power shall be given to order detention?

AN CATHAOIRLEACH

Certainly, you are entitled to discuss the alternatives, but it is not relevant to say that you want to have the whole section removed.

I want to argue that I deny the right of the police officer or the Minister.

AN CATHAOIRLEACH

I quite follow, but the way to raise that is to move the omission of the section.

I suppose I am not in order in moving the omission of the section now?

AN CATHAOIRLEACH

You are rather late. If such an amendment had been down I would have had to take it first.

I think, as it stands, the section is perfectly reasonable. The Executive Minister, it seems to me, according to the section, is the only person given power to order arrest. He gets the report and orders arrest. I do not think by adding the amendment to the Bill that it will make him any less responsible. The following section gives powers to a subordinate officer, and there I should like some safeguards introduced. I do not think the present amendment will take any power from or give any power to the officer without an order from the Executive Minister. I do not think the Bill would be improved by such amendment.

I have no special regard for the amendment, as I fail to see how the section can be satisfactorily amended. The only point in the amendment that appeals to me was the one emphasised by Senator Douglas, that the acceptance of the amendment would tend to save the Civic Guard from becoming a new R.I.C. or Black and Tan organisation. It is unfortunate at the very inception of their career that they should be called upon to discharge duties of this particular character, and definitely made responsible in this subsection for the internment of people without trial. After all, the law is successful or otherwise according to the respect in which those who administer it are held, and if we proceed right away by making the Civic Guard, which is the principal police force in the country, discharge duties of this obnoxious nature and make them directly responsible for the detention of people without trial— possibly large numbers of people—we are going to strike at the very fundamentals of justice in the beginning. That is the only point of view from which I would support the amendment. For that reason I hope the Seanad will adopt it in order to try, as far as possible, to make the Civic Guard respected a little more than the R.I.C. was, and to render the force more liable to discharge its duties in a more satisfactory manner, and with more public confidence, than will be the case if these duties are imposed upon them.

I do not think the object is to make the clause perfect, but simply to place the responsibility on the Minister. As the clause stands he can act without any responsibility on receipt of some report.

Amendment declared carried.

I propose the following amendment:—Section 1: To delete in lines 43-45 the words "reasonable ground for suspecting such person of," and to substitute therefor the words "prima facie evidence of such person.” The object of this amendment is shown on the face of it, and I do not think it requires much argument. I can only give you an instance of what I know was done in the past by people across the water, who, I regret to say, are now being copied very much on this side of the water. They kept a man in prison in the belief that he was reasonably suspected. The matter was later brought before a Commission which they had set up, and the evidence was that a certain policeman admitted that the prisoner had not been keeping company with any suspicious person. Then he was asked why he reasonably suspected him, and he explained that this man had paid a visit to the priest. It was admitted that the priest was not a rebel nor suspected of being a rebel. It was also stated that another man had been on a visit with the priest, and that he was reasonably suspected. Although it could not be shown that the first prisoner came in contact with the other prisoner, he was suspected. These are the sorts of suspicions that will take place when you want to arrest a man. When you want to arrest a man in the country there are suspicions on all kinds of extraordinary grounds. I want to see some prima facie evidence showing that there is some cause for arresting a man.

I would not be open to accept that amendment, and if the Seanad were to accept it I would have no alternative but to ask the Dáil not to accept it. It would render the Executive absolutely powerless in dealing with the situation in the country. Senators must know that there are scores of men engaged in criminal activities throughout the country against whom it would be impossible to produce even that prima facie evidence which the amendment demands. Personally I am aware that there are men in charge of columns in various parts of the country still in hiding who could not be placed on trial, and against whom no prima facie evidence could be produced. The term “suspicion” throughout this Bill means something more than suspicion. It means common knowledge prevailing through a locality, but inasmuch as everything short of legal proof has to be covered, the word suspicion has to be used in the Bill. I could not agree to an amendment which would impose on the Executive the necessity of producing prima facie evidence.

Amendment put and negatived.

I propose the following amendment:—Section 1: To insert after the word "is," in line 50, the words "for reasons stated in the report." This amendment was moved in the Dáil, and was rejected on the grounds that the inclusion of the words might leave it open to a civil court to enquire into the sufficiency of the reasons stated. The words at the end of the clause were added as a kind of safeguard to insure that the powers given by this clause would be utilised only on account of the state of war. The argument that the words to be added would bring the case before the Courts is of doubtful validity. In any case, the words about the state of war have been added. The intention of the amendment is simply that the military authorities should not be able to secure the internment of any person on the general statement that it is a matter of military necessity.

Something more definite should be required. Presumably a military officer always makes a report of some sort as to why he makes an internment. The amendment would mean that the information in that report, or at least the substance of it, should be passed on to the Minister who orders the internment. I cannot see why this amendment cannot be accepted. We all know from experience, with human nature as it is, that it would be humanly impossible to get any body of men, whether members of the Civic Guard or of the Army, who are all desirable. We all know it is quite possible that men may get into the Army who are undesirable. I am not suggesting that the general body of the Army are undesirable. I suggest that it is quite possible for undesirables to get into the Civic Guard and become officers. I suggest that men may have petty spleen, and if they are empowered, without making a definite specific report as to why a person is reasonably suspected, they should not be allowed to deprive a man of his liberty. It should not be within the power of any officer, military or police, to deprive a citizen of his or her liberty without making a definite specific report as to the reasons for so doing. I leave it to the good sense and honour of the Seanad to see justice done to the rights of the citizen.

The Senator seems to proceed on the assumption that it is not possible to limit by statute the ordinary powers of the military in times of armed rebellion. That is contrary to my advice on the matter, which is expert and technical. I am informed that if in a Bill you state reasons for what courses are to be taken, and set out in writing the reasons, thereupon you place it in the competence of the Court to inquire into the sufficiency of those reasons. Both in the Dáil and in the Seanad I have been strongly advised by the Attorney-General not to agree to the insertion of those words or any similar words, and that if they were to be inserted it brings it within the competence of the Courts to ask for the reasons and to inquire into their sufficiency. That would be an impossible position to place the military in when confronted with a military situation.

I suggest that the military necessity is passed, and my desire is, for God's sake let us not think of the past, but of the present, and let us see that the rights and liberties of the citizens of this country shall be protected.

This is a letter, dated 27th June, 1923, from Mr. Frank Aiken to Mr. Ernest O'Malley, a prisoner in Mountjoy:—

General Headquarters, Dublin,

27th June, 1923.

Dept. C/s.

To E. O'M.

Yours of 20th June received on 26/6/23.

1. I am sorry to hear that you are still confined to bed. If you were able to move round a little at all you would soon get your strength.

2. It is a splendid idea to start classes. I was never in jail very long myself, but while I was there I was absolutely fed up with the way men used to lounge around.

3. Military Organisation. Our time is pretty much taken up with our present difficulties, so that I have not made a very deep analysis of the real reasons for our failure. I believe your three reasons and the fact that it was a defensive war, and that we always thought the enemy would not go so far, were the principal ones.

4. That question of staff work. There was too much of it done by Division O/C.'s through the country instead of by Adjutants, and there wouldn't be call for half as much if the junior officers were impressed with the necessity of sending short reports regularly.

With regard to the future, I believe the rifle and revolver is out of date as an offensive weapon, and that riflemen should only be on protection for special Corps of Engineers. The use of explosives, gas, and fire may be concentrated on, also small trench mortars.

Organisation. Our organisation in the past made for a lot of unnecessary duplication and staff work. You should raise a discussion on this matter, and see if it would be better to have county organisation and batts., and the present divisional officers merely an operation and inspecting staff. If we have to fight another war with the Staters, it will have to be short and sweet, and our units will need to be trained in taking the offensive in large bodies.

Non-fighting men. I am continually impressing on Divs. the fact that the lack of civilian organisation to back us up was chiefly responsible for our present position, and that it is their duty to see that our civilian supporters are organised, also that the Fianna are reorganised and trained at once.

Hoping to have an answer from you soon to my circular to members of original Executive of the 23rd instant, and that you will be soon strong again.

The letter read by the Minister is very impressive if not taken in connection with other facts. We know arrests have practically ceased throughout the whole country, and there is a very shrewd suspicion abroad that the writer of that letter and other people more prominent than he are available both in Dublin and outside, but are still left at large. It is inconceivable to think of the number of prominent men that have been left at large and the general belief is that they can be arrested. I do not like to suggest that they are left at large as an excuse for a measure of this kind, which proposes to trample on the elementary freedom of the citizen. The amendment is of a character that one can hardly imagine the Minister should refuse assent to. It merely suggests that whatever Minister is responsible for the detention of the arrested person shall know from the military authority the reason why he is being interned. Otherwise there is no use whatever for having the Minister in Parliament, alleged to be responsible for the internment of those people, when he can say he has not the slightest idea why they are interned. All he can say is that some military captain, perhaps one with a limited experience, says that those people should be interned, and "consequently because of this Act which you yourselves have passed I have no right to inquire into it." I do not know how this would meet him. All those reasons could be inquired into by the Civic Guard.

That may be; but I hope, and all the indications go to show that we are approaching a period when there will be no great danger to the State involved in having matters of this kind brought into the Court, and the sooner the Executive Council show they have the confidence that that time is approaching, the more likely is the restoration of normal conditions to come about. It is this panicky legislation, such as the refusal to accept simple amendments of this kind, which keeps people on tenter-hooks, and which is injurious here and disastrous abroad. I hope notwithstanding what he has already said, that the Minister will see his way to reconsider the matter, and that the Seanad will accept the amendment, looking at the country as they know it, and record their own convictions. There must be a tremendous censorship of the Press if the country is as bad as the Minister would lead us to believe. We hear of terrible happenings, but very little appears in the Press. We hear of very little violence, and we are informed no censorship is in operation. Consequently it is only in the minds of certain people that those things may come to pass. I believe there is no justification for passing this section, and, consequently, that the amendment moved by Senator Farren should be accepted

I must say I am not much impressed by this letter, which was read already in the Dáil. It is a custom of the Minister, when he wants to get something out of the way, to shake gory locks in our faces, and say "This is what you may expect; we know what those people were and what they did; we know that they did make use of the petrol can and revolver." The reading of that letter does not tell us anything more than what we know. But we also know that those things do not happen now. This is bringing the past into the future as a kind of horoscope that what has been done in the past is to be done in the future. Until we make some effort to get some friendship into this country we will never get further, and if we pass this measure we are only pushing things further away from us.

Amendment put.
The Seanad divided: Tá 11; Níl, 20.

  • James Green Douglas.
  • William Barrington.
  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Mrs. Alice Stopford Green.
  • Edward MacEvoy.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • Colonel Maurice Moore, C.B.
  • John Thomas O'Farrell.

Níl

  • Thomas Westropp Bennett.
  • John C. Counihan.
  • Peter de Loughry.
  • Ellen Odette, Dowager Countess of Desart.
  • Sir Nugent Talbot Everard, Bart.
  • Right Hon. Earl of Granard, K.P., G.C.V.O.
  • Henry Seymour Guinness.
  • Right Hon. Andrew Jameson, D.L.
  • Sir John Keane, Bart.
  • Earl of Kerry, M.V.O., D.S.O., D.L.
  • Thomas Linehan.
  • James MacKean.
  • John McLoughlin.
  • Earl of Mayo, K.P.
  • James Moran.
  • James J. Parkinson.
  • Col. Sir William Hutcheson Poe, Bart., K.C.B.
  • Mrs. Jane Wyse Power.
  • Earl of Wicklow, D.L.
  • William Butler Yeats.
Amendment declared lost.

I move as an amendment to delete Clause (c). Senators will notice that Clauses (a) and (b) cover certain cases that powers are needed to deal with, and Part II. of the Schedule contains a whole litany of crimes that powers are sought to deal with. This clause is intended to meet some particular cases which the Executive appears to be somewhat afraid to mention. I assume that it is intended to deal probably with politicians or Labour leaders or social reformers, or other people of that type, who, in the opinion of the Executive Council, would be much better removed, and the Executive Council, apparently consider it desirable to prevent them from creating difficulties. There is no case that could not be dealt with under the ordinary law, with the exception of the cases mentioned here, and why the Executive Council should be seeking such wide powers as are contained in Clause (c) I fail to understand. If the clause is aimed at getting political opponents put out of the way, it is an unfair thing. If it is intended to deal with social reformers, it is likewise unfair; it is unfair to leave them at the mercy of any man in the crowd, either officer or anybody else. Whatever class he sprang from, he would be paid to do a certain duty, and he would be directly bound to be opposed to the feelings of the people he is listening to. He has the power to get them interned simply because he might not agree with their system of propaganda. In my opinion, the powers sought here are too wide.

I would like to support this amendment, for the reason that I believe the section as it stands is a further encroachment on one of the few privileges that a citizen enjoys. It seems to me that it is handing into the hands of any Minister or the Executive the power to arrest without charge any civilian. I hold, and I think the Seanad will agree with me, that that is not a state of affairs that should exist in this country. There ought to be some charter of liberty for the individual. Sub-sections (a) and (b) have already provided sufficient powers to deal with any individuals with whom it may be necessary to deal.

Paragraph (a) of this sub-section deals strictly with offences mentioned in Part I. of the Schedule, and paragraph (b) deals with arrests made during a state of war or armed revolt. Paragraph (c) deals, and is intended to deal, particularly with the question of public safety. It deals with situations that will arise the day after the Courts decide that a condition of war or armed revolt does not exist in the country. I do not know when the Courts may decide that; I do not know when the Courts may refuse to accept the affidavit of the Adjutant-General that you have an organisation opposed to the State, that that organisation has arms and explosives at its disposal, and has refused to surrender them to the accredited representatives of the people and to those who alone have the right to control lethal weapons in the country.

I do not know that the Courts may decide that that state of affairs does not constitute a state of war or armed revolt. On the day after they so decide you will have a situation where people who have been in hiding for a long time may come out and work more or less openly, and unless covered by (a) or (b) it would not be within the power of the Executive to arrest such persons. Senators Duffy and MacPartlin suggest that paragraph (a) is sufficiently broad. It does not give power to deal with people preparing for the commission of such offences or people advocating the commission of such offences. It confines itself to people who have been committing or concerned in committing offences in Part I. of the Schedule, and people who are abusing their liberty to the detriment of the public safety. It is really for the Senators, in a responsible spirit, as it was for the Dáil, to ask themselves whether it is right, in a situation like the present, and with the potentialities that there are for future trouble in the country, to hamper the Executive—an Executive that will be from day to day responsible to the people's representatives in the Dáil and inside two months will be responsible to the people's representatives in the Dáil, elected on the broadest possible franchise basis. That Executive cannot remain a day in office if it has lost the confidence of the people's representatives. It is to a body of that kind that it is proposed to entrust those powers.

I have said again and again, with regard to this Bill, that theoretically it can be used as a vehicle of tyranny and a vehicle of oppression, or, as some of the Senators have called it, a coercion Bill, but I submit that is not probable, and in fact and in practice that is not possible, because the Executive that would attempt to so use it would not retain the confidence of the majority of the people's representatives.

You have got to distinguish between the letter of the Bill and the spirit of the Bill in which these powers will, in fact, be exercised. If you hamper and fetter and restrict the Executive, then you would not be entitled to complain of the results. If no one would be arrested except people concerned in committing offences mentioned in Part I. of the Schedule, except where you have the situation of war or armed revolt, then you are hampering the Executive, and you are hampering it in dealing with people going around the country sowing the seeds of future war or armed revolt; in dealing with persons the most dangerous of all—the person who keeps clear from any firing line himself, but is active in stirring up revolt and stirring up conditions that will react disastrously on the country.

I see tremendous danger in this portion, which leaves room for the secret letter being sent by the opponents of certain people to the responsible military authority, and it then being acted upon. Now, the liberty of the subject is all-important. We should endeavour to provide that no subject of this nation might possibly be arrested and detained on anything but what was a fair charge. We cannot punish people for their opinions. We cannot imprison a man or woman for having certain opinions. Everybody is entitled to have opinions, and I suggest that it is possible, with partisanship running so high as it is in this country at the moment, that a person who would be guilty of no crime—persons who would conscientiously and honestly have their convictions and work for them in a constitutional way, would be arrested.

I would suggest that, if you go to the utmost of the terms that are proposed in this Bill, it is quite possible that such people might be deprived of their liberty. I do not suggest for a moment that the Executive would use these powers harshly, but the Minister has admitted that it could be used as a measure of coercion. The Minister admits that. I have been trying in my own way to put that before this Seanad and it is quite possible, if this Bill is passed, that it can be used as a measure of tyranny to deprive the subjects of this nation of their liberty. Now, that is a very serious thing. To take away the liberty of a subject is a very serious thing, and I respectfully suggest that the Minister is not taking the proper view of the position. The Minister seems to think that there is quite a possibility that there may be a recurrence of trouble in this country. I suppose it is quite natural that the Minister, having been, as he has been, a member of the Executive during the past twelve months, would not be taking the same view as a person outside, moving amongst the people, would take. As one who travels about the country, I think the danger of a recurrence of war is over. I think that our people have got such a sickener and horror of war, and horror and a distaste against everything appertaining to war and the gun, that it will be a long time before the people of this country will go into war again, whether it be war amongst themselves or war against any other nation. Therefore, I do not see the necessity for taking these powers. For the good name of the country I sincerely hope that this clause will not be passed. I think it would be a blot on our civilisation to pass this Bill.

Looking at the schedule of crimes in Parts I. and II., one would imagine that these embody every possible crime that could be committed against the State, and that there should be no necessity for giving further scope and opportunity to the Executive.

Part 1 is only mentioned in paragraph (a).

Then, I suggest that instead of including that, Clause 3, the schedule of crimes, should be amended, and that if there are special crimes in the Minister's mind to which the paragraph 3 refers, these crimes should be specified in the schedules.

I think it would be a good thing if the Minister would give us some idea as to the distinction between (a) and (c) in regard to the powers which are claimed. I think it would be well if he would consider whether, if this clause is retained, there might not be words inserted which might meet one, at any rate, of the points which some of the Labour Senators have raised. They want to make it clear that constitutional action, even in a direction which some of us might think would not be for the public good, would not be interfered with. “Public safety” is a pretty wide term— much wider than in most of the other sections in the Bill. Therefore, I think that the Minister might consider between this and the next stage whether some other words might not be introduced which would be somewhat more limiting than the words “public safety.” Most of the other powers are given either for definitely endangering the State, as in Part 1, or for the offences mentioned in Part 2 of the schedule, which you have in Section 2. In this case you have the vague powers simply of “public safety,” and I think these are words which would cause some uneasiness. I can quite understand the desire of the Minister to be able to use the powers in Sub-section (a) in reference to persons who might not actually have formed military units, or might not technically come under Part 1. At the same time, I see the point of the Labour Senators that “public safety” might be taken by some Minister—and we cannot be sure of the Minister we may have—to include offences which it is not desirable should be dealt with except by means of a Court. Personally, I can conceive of persons making speeches which, in my opinion, do not help the public safety; but unless they advocate armed violence, or violence of some kind, I am not prepared to intern them for the speeches.

There is one point which I think some of those present, including the Minister, seem to be overlooking. As has already been pointed out, Sub-section (a) deals with armed revolt and Sub-section (b) deals with a state of war. In addition to that, Part 2 of the Schedule contains a litany of all the possible crimes that could be committed against the public safety. Section 2 of this Bill reads: “It shall be lawful for a responsible officer to arrest and to detain in custody for any period not exceeding one week, any person found committing or attempting to commit, or whom such officer suspects of having committed, any of the offences mentioned in Part 2 of the Schedule to this Act.” It goes on to state that at the expiration of one week the Minister shall have power to intern that man without trial for any of the crimes mentioned in Part 2 of the Schedule. What other crime is there that a person could commit against the public safety in addition to these that cannot be dealt with under the ordinary law, unless the Executive are to have the power to intern everybody whom they may wish and keep them there without trial?

I do not know what state of mind the draftsmen of the Bill were in when they put in Sub-section 3. It seems utterly unnecessary, and sweeps away the last vestige of protection remaining to the individual citizen. It leaves it open to any evil-minded individual to lock up a large section of the community. It leaves it open to Ministers deeply imbued with political ideas and vigorously opposed to their opponents, to lock up at crucial periods some of their opponents merely on the strength of a report under this sub-section. It is too dangerously wide altogether as it stands, and it does not seem necessary. It seems a gross abuse of private liberty altogether. I do not believe that the suggestion of Senator Douglas is practicable, and I hope the mover of the amendment will not accept any amendment, such as to put in other words for "public safety," because, I believe, the only way to amend this is to delete the sub-section altogether.

Principles of liberty are easily stated, and Senators have been stating absolute principles of liberty with a certain glibness, forgetting that people enjoy the maximum of liberty by agreeing between themselves to surrender a certain amount; forgetting that men live together in society by each making certain concessions to all; Senator Farren agreeing not to exercise his liberty of throwing stones through my window, and I making a reciprocal concession, and so on. There are times when, in order to enjoy liberty and security, it is necessary to give up more than in normal times; to surrender to the Committee of the people, which is called the Executive Council, greater rights and powers than would be surrendered in normal, hum-drum, routine times. That is the principle underlying the whole of this Bill, that the decent, law-abiding people of the country, in order that security may be restored for them, in order that they may sleep of nights, in order that we may get back to the day when a man can leave his door on the latch, entrust to their Committee or Executive Council larger powers than it is usual normally to entrust to such an Executive.

These are broad powers that are asked for in this Bill. They are not considered excessive, having regard to the circumstances of the times and of the possibilities of the future. I am asked what kind of case would come under Sub-section (c) as distinct from (a) and (b), and I am reminded that “public safety” is a vague word. It is a vague word. But the body in the country that has the duty of interpreting where public safety lies in any particular case is the Executive Council. If its interpretation is wise, if it is an interpretation that appeals to the common-sense of the majority of the people's representatives, that Executive Council will remain in office. If its interpretation is unwise, if it is harsh, if it is tyrannical, if it is oppressive, presumably that Executive Council will not retain the confidence of the majority of the people's representatives. I do base the whole case for this Bill on that—that its powers are to be exercised by an Executive responsible from day to day, and from week to week, to the people through their representatives. That is democracy; that is representative government.

I could not state offhand the exact cases that might, in a given set of circumstances, come under (c) as distinct from (a) and (b). Let us take a purely hypothetical case. Sub-section (a) gives power to arrest and detain without trial people on reasonable suspicion of participation in the offences mentioned in Part 1 of the Schedule. Sub-section (b) deals with arrests made during a state of war or armed revolt. My attention was drawn by Senator Cummins to Part 2 of the Schedule, with which Section 2 of the Bill deals. What about the people advocating the offences mentioned in Part 2 of the Schedule, or, for that matter, advocating the offences mentioned in Part 1 of the Schedule? The arrests mentioned in (a) are for participation in the acts mentioned in Part 1 of the Schedule. The arrests mentioned in (b) are for active participation in the offences mentioned in Part 2. What about the man who goes around the country advocating both one and the other, or advocating either for that matter? Let us take one item in Part 5: Wrongful entry and retention of possession of land without colour or pretence to title or authority. A man who does that may be arrested under Section 2 of the Bill. The only provision you have for the man who goes around inciting to these offences is paragraph (c) of Section 1. Public safety is a broad term. The interpretation of it would not be the same in one set of circumstances as it would in altered circumstances. The body that must interpret it from day to day and decide where public safety lies is the Executive Council, and that body holds office from the representatives of the people. It cannot hold office one day or one hour longer than it succeeds in retaining the confidence of the majority of the people's representatives.

I think I can assist the Minister if I draw his attention to Section 12 of Part 2 of the Schedule. He has mentioned that the only thing which occurs to him at the moment as left out of this Schedule is the encouraging or advocating the commission of any of the crimes mentioned in Parts 1 and 2 of the Schedule. Section 12 reads: "Aiding, abetting, assisting in or encouraging the commission of any of the offences mentioned in this Schedule, or helping in the concealment or escape of any person guilty of any such offence." That certainly covers the cases mentioned by the Minister but he might have overlooked it for the moment. Seeing that he has made a special point about it, I hope he will now see his way to accept it.

After listening to a good many of the speeches that we have heard, one would think that all danger has passed in this country, and that we are living in a state of perfect peace. Unfortunately, I must say that is not my experience. I know that peace does not exist yet in spite of the efforts of the Government and of the forces that are working for peace in the country. Houses are being visited and raided still. We are urged to reject the advice of our present Government, who have succeeded in giving us the amount of peace we now have. I really cannot understand how the Seanad could be asked to accept an amendment which predicts a state of peace which most of us know does not exist. We hope it will exist; but for the Seanad to say to the Government, "We will not take your advice as to the essential requirements of the present state of the country, but will take away from you the weapon that you say from your experience is necessary for the public safety," would be acting against the best interest of public safety. I, for one, cannot see how we can take the advice of those who have not got the experience and do not know what the country requires, in preference to the advice of the Ministers who have charge of the country and know the dangers with which we are confronted.

Senator Jameson's information is quite different from what I have heard, and is quite different from what the Ministers themselves state. Ministers themselves state the country is quiet. The Postmaster-General stated the other day at Athlone that there was less crime in Ireland than in any country in Europe. These things may or may not be true. I have not been all over the country, and I do not know, but, judging from the newspapers and from what people tell you, my information does not agree with Senator Jameson. He might be right. I do not know where he gets his information. With regard to the Minister's statement about the representatives of the nation turning out the Government if they do not do what is right, I do not think that is our experience of party government at all. Party Government, I am afraid, is not better than any other form of government. If a party intends to back a Minister, it does so through thick and thin, whether he is right or wrong, not only here, but in England and everywhere else. The party backs him, and the Minister sails along until the election comes, and that Government is turned out of office.

I only rise to express an opinion in agreement with Senator Jameson's. Within the last week there have been two cases of incendiarism within ten miles of where I live, and one murder. They are all the more serious because we have not found the people coming forward to give evidence as to the commission of these crimes. As to the amendment before the Seanad, I cannot see the particular and cowardly crime of inciting others to commit offences mentioned in the list. Sub-section (c) appears to have been drawn up for the purpose of meeting that omission.

I only want to say a word about what Senator Jameson has put before the Seanad. He suggests that we are not supposed to reject or criticise anything put forward by the Government. That has not been the attitude that Senator Jameson took on other Bills in which his own party were interested. I think I remember him putting forward certain amendments to certain Bills. In connection with the Land Bill I have also seen people putting forward amendments. We have the same right, especially if the object is to make the Government more popular than it is. I believe this section is encroaching too much on the liberty of the people. I believe there is plenty of power in the Bill to cover all the crimes that the Government wishes to cover. If we are to take the line suggested by Senator Jameson, the best thing we could do is to dissolve the Seanad and the Dáil and let the Government manage the show.

Amendment put.
The Seanad divided: Tá, 7; Níl, 24.

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • Colonel Maurice Moore, C.B.
  • John Thomas O'Farrell.

Níl

  • James Green Douglas.
  • William Barrington.
  • Thomas Westropp Bennett.
  • John C. Counihan.
  • Peter de Loughry.
  • Dowager Countess of Desart.
  • Sir Nugent T. Everard.
  • Rt. Hon. Earl of Granard.
  • Mrs. Alice Stopford Green.
  • Henry S. Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • William J. Molloy.
  • James Moran.
  • James J. Parkinson.
  • Col. Sir Wm. Hutcheson Poe.
  • Mrs. J. Wyse Power.
  • Earl of Wicklow.
  • William Butler Yeats.
Amendment declared lost.

I beg to move: To delete in line 2, the words "from a responsible officer, or." This follows naturally on Amendment 2, which was passed by the Seanad. I take out responsible officers, and leave in paragraph (c)—namely, that the Minister receives reports from the military authorities as distinct from a military officer. It is entirely in consonance with the argument adopted in regard to (a), which was passed.

I think this amendment scarcely follows on the amendment which was accepted, and which was an agreement to leave out any reference to a report, and place the responsibility on the Minister to act on his own initiative. Paragraph (c) retains mention of a report, and provides that people may during this middle period be interned without trial if a report is received that they are abusing their liberty and that it is a danger to the public that they should remain at liberty. If that is right, if we decide to put in this Bill the powers of internment of persons who are abusing their liberty, then I see no reason why the police should be excluded, and that a report to that effect should be strictly confined to military sources. The police will shortly be established in 807 stations throughout the country. One may assume, if the improvement in affairs be progressive, that the military will be gradually withdrawn from the country, and concentrated in larger centres here and there. It is simply a case that if we decide to intern at all, if we think this transitional period demands internment without trial, that internment should be possible on a police report. I share to a certain extent the reluctance of Senator Douglas to bring the police into what some might consider a temporary Act arising out of the political situation, but surely the police are the guardians of the people, and, even more than the military, they are concerned with the question of the public peace and safety, and if a Minister is to intern on report that an individual citizen is abusing his liberty there is no case for excluding a police report, and saying that it must emanate from a military source.

I think the Minister is right to this extent to bring it into conformity with (a), and that the words “military authority” should go out. That would leave it open to the Minister as in (a) to use the source he thinks best. I agree that the public safety is the business of the police, but I want the Civic Guards, so far as their responsibility is concerned to carry out the ordinary law which, in the future, they will be expected to carry out. I do not know whether I would be allowed to alter my amendment, and substitute different words so as to conform with (a).

AN CATHAOIRLEACH

If you withdraw the present amendment I will accept it.

I now propose: "In respect of whom such Minister shall certify in writing that he is satisfied that the public safety is endangered by such person being allowed to remain at liberty."

AN CATHAOIRLEACH

Very well, I will put that.

Amendment put and agreed to.

I have an amendment to propose.

AN CATHAOIRLEACH

Your amendment is not in order, because the words you want to omit are now gone.

Before you rule out that, I think there is some misunderstanding. By that amendment the section is considerably disimproved.

AN CATHAOIRLEACH

Whether it is improved or disimproved, the Seanad has passed it, and if you think there is anything wrong you can deal with it on the Report Stage. I put the amendment and it was carried unanimously.

You are now going to put the section as a whole, and because of the inclusion of Sub-section (c) I am going to divide the Seanad. I desire to oppose the section as a whole, but particularly because of the inclusion of Sub-section (c).

AN CATHAOIRLEACH

The motion is: "That Clause 1 Section 1, as amended, stand part of the Bill."

I am sorry to find that people who continuously remind us that they do not belong to any one party —that they are simply national representatives with a broad and national aspect— again remind us that they are going to do nothing but take the word of the Minister, who, of course, represents a party. It is deplorable that in an Assembly of this kind people do not exercise a little more liberty of conscience. It is extraordinary that this body could not be convinced of the necessity of accepting the amendment I have referred to. The Minister was not very strongly opposed to it, and if he could only have got a little encouragement from the people who mistakenly supported him he would have accepted it. For that reason I am going to vote against the section, and I hope that the panic displayed in other places will not be displayed here, and that Senator Jameson's dictum that the Government must be the best-informed body, and that they are the people who know best, is not to be followed out in this Seanad. It is ludicrous to bring us here at all if we are simply to carry out what the Minister says. I know Senator Jameson does not always do it when it does not suit him. Yet he queries the right of us to inquire into the merits of the Bill, and advises us to let it go by the board. The Government said it was necessary, and consequently we must do it.

I do not think that Senator O'Farrell is quite justified in his remarks. It is not for me to interpret for Senator Jameson, but I do not think the attitude taken here is one of stating that whatever the Government proposes is what should be accepted. I only make the remark simply because Senator O'Farrell's statement was received in silence and no one refuted it. But in other discussions it has been frequently stated and repudiated. There are a great many amendments to this Bill, which proves that a great many of us are not satisfied with this Bill. At the same time, I think a Senator has the right to follow the Government if he likes. When he says so, I do not think there is any right to say that he is not following his conscience. I deprecate that statement.

I oppose the whole section, and I think I will have the opportuniy of saying now what I wanted to say before. I am opposed to the whole section because it gives the right to the Minister or his responsible officers to take away from the subject liberty without trial. I am sorry the Government have taken the view-point they have, because I think they are alarmed needlessly. I do not think there is such cause for alarm. I do not suggest that an ordinary person going through the country can see a wonderful change. Notwithstanding the letter read to-day, I believe there will be no further necessity for having such a Bill. I am not looking forward to the immediate present. A precedent will be set if we pass this Bill that will give responsible Government the power to deprive a citizen of his liberty without charge or trial. For that reason I am opposed to this section of the Bill. I will not say anything further, except that I hope, when Senator O'Farrell is in the position now occupied by Deputy O'Higgins, he will get the same amount of support, when there is a Labour Government in power. All those suggestions were made on a previous occasion here—that it was quite possible under the Bill that it could be used for the advantage of the present Executive. The present Government might not be likely to take advantage of the powers, and the suggestion was made that they felt sure that if a Farmers' Government were in power they would not take advantage of the powers, but in the case of the Labour Party there was some doubt. I think there is just as great a sense of justice among labour people as any other section of the community, and they would not abuse any power. I would make a last despairing appeal to the Minister on this point, because I believe in future, when we have got over the present little trouble, we would not like to have inserted on the Statute Book of the First Oireachtas a measure of this kind. For that reason, and for the good of the country, I would press upon him carefully to consider the points we have brought under his notice. When all the trouble if over, let us be in a position to look back on this thing with satisfaction, and not be sorry for what we have done.

I voted against the amendment proposed by Senator Douglas on the grounds that I thought it was restricting or placing greater power on the initiative of the Minister. In this case I feel the powers are necessary, and it is advisable that the Minister should have such powers.

Question: "That Section 1, as amended, stand part of the Bill," put.
The Seanad divided: Tá, 22; Níl, 8

  • William Barrington.
  • Thomas Westropp Bennett.
  • John C. Counihan.
  • The Countess of Desart.
  • Sir Thomas Grattan Esmonde.
  • Sir Nugent Everard.
  • Dr. Oliver St. John Gogarty.
  • The Right Hon. Earl of Granard.
  • Henry Seymour Guinness.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • John McLoughlin.
  • Earl of Mayo.
  • Colonel Maurice Moore.
  • James Moran.
  • James J. Parkinson.
  • Colonel Sir William Hutcheson Poe.
  • Mrs. Wyse Power.
  • Earl of Wicklow.
  • William Butler Yeats.

Níl

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Mrs. Stopford Green
  • Edward MacEvoy.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • John Thomas O'Farrell.
Motion declared carried.

There was a mistake made. I voted "Tá," and I intended voting "Níl."

AN CATHAOIRLEACH

Whom was the mistake made by?

I am not saying the mistake was made by anyone but myself..

AN CATHAOIRLEACH

You did not say that; I could not follow that.

I am not accusing anybody else of having made a mistake.

AN CATHAOIRLEACH

I am afraid I cannot correct the matter now. The Debates will record that you voted by mistake, but I cannot alter the vote.

I think I have a perfect right to have it altered.

AN CATHAOIRLEACH

We cannot discuss that now; I have already ruled.

SECTION 2.

(1) It shall be lawful for a responsible officer to arrest and to detain in custody for any period not exceeding one week any person found committing or attempting to commit or whom such officer suspects of having committed any of the offences mentioned in Part II. of the Schedule to this Act.

(2) It shall be lawful for an Executive Minister, subject to the provisions of this Act, to order the detention in custody in any place in Saorstát Eireann of any person arrested under this section in respect of whom such Minister certifies in writing that for stated reasons he is of opinion that the public safety would be endangered by such person being set at liberty.

(3) Whenever any person is arrested under this section, such person shall, not later than one week after his arrest, unless an order for his detention is made by an Executive Minister under this section, either be released or be charged with one or more of the offences mentioned in the Schedule to this Act, or with any other offence or offences, and dealt with according to law, and shall for that purpose, if in military custody, be delivered into civil custody.

The following amendment is in my name:—

To delete in line 11 the words "an Executive Minister," and to substitute therefor the words "the Executive Council or any Minister thereof authorised by them."

The same reasons underline this amendment as the one I proposed earlier. I desire to withdraw it.

Amendment, by leave, withdrawn.

I beg to move the following amendment:—

Section 2, Sub-section (2): To insert after the word "custody," in line 12, the words "for a period not extending beyond the limit of the duration of this Act."

My reason for moving this amendment is the fact that this Bill is temporary. It might happen that a person would be sentenced to nine or twelve months' imprisonment. I do not think it was the intention of the Minister that at any time such a thing would happen, but to make it clear that it would not be possible for such a thing to happen I move the insertion of those words.

The Senator's namesake in the Dáil moved an amendment to this effect, and it was not accepted, simply because it is not in reason that the powers of detention without trial which spring from this Bill could survive the Bill. Those powers would not exist but for the Bill, and when the Bill expires the powers conferred by it will expire also. No one could imagine the State Counsel coming into Court and pleading as justification for the detention of a person without trial the Public Safety (Emergency Powers) Bill, if that Bill had expired. If it has meantime expired, such a defence to a habeas corpus action would be simply scoffed out of Court, and the words “subject to the provisions of this Act” which appear in that sub-section are considered ample. My reasons, therefore, for not accepting the Senator's amendment are identical with the reasons given for not accepting a similar amendment in the Dáil. I believe the amendment is absolutely unnecessary, and the words suggested would be a blot on the draftsmanship of the Bill. The words are not necessary; they are superfluous. The Attorney-General has advised in this matter, and has stated that an amendment of that kind could not be accepted, because it would seem to imply a belief or opinion that the powers conferred by the Bill could last beyond the lifetime of the Bill itself.

The objection of the Minister does not seem convincing to me. If the powers do not last beyond the lifetime of the Bill, what harm can there be in those words? Is there any legal point involved?

Bad draftsmanship.

If the amendment were accepted, it would ease the situation very much.

Apart from the fact that the amendment will do no harm, it will relieve a great deal of doubt in the public mind. People interned under this Bill, when it becomes an Act, may be, in the words of a Minister, left in until they rot. That is one of the reasons why this amendment should be accepted, apart altogether from that which will be the position quite definitely, and avoiding a good deal of litigation and legal proceedings afterwards. That will be the effect of having this amendment accepted. I do not know why the Minister should stand so strong against it. Even if he states it is the intention of the Government, it may not add to the artistic side of the draftsmanship, but that drawback will be counterbalanced and the drawbacks will be balanced by the amount of doubts which it will remove.

The view simply is that under this Bill a person could not be kept interned without trial for a single day longer than the lifetime of the Bill. The objection to putting in any reference such as the Senator suggests to a period is that internment is not for a period. It is simply a business from day to day, under the powers of the Bill, and to suggest that a man could be interned with reference to some fixed period is wrong. It is wrong in principle. The whole idea of the Bill is a deterrent detention as distinct from a punitive imprisonment. Men interned to-day might, if the situation appreciably altered, be released in three or four weeks' time. There is no suggestion that people interned will be kept in for the six months. They may be released sooner than six months. The reference to a fixed period in connection with internment is wrong, because it suggests the same as a fixed sentence. Now, the Law Advisers of the Government are absolutely of opinion, and the Senators may make their minds easy about it, that there would be no power in the Government to hold people detained without trial for a single day beyond the lifetime of the Bill. The reasons for refusing the amendment are simply the reasons I have stated—that to insert it would be a blot on the draftsmanship of the Bill. The words are utterly superfluous.

The Minister is rather conflicting in his statement. He stated that no person arrested under this can be kept a day after the Bill expires, or a day longer than the Bill is in operation. In rising to speak on the last occasion he stated that, if he accepted it, this would mean that every person interned would have to be released. Do I take it that the Minister gives it as his opinion, according to his legal advisers, that any person arrested and interned or imprisoned under this Act will, on the expiration of this Act, have to be charged and tried, or released?

That is the position?

In view of the guarantee the Minister has given us, I would ask the permission of the Seanad to withdraw my amendment.

Amendment, by leave, withdrawn.

I suppose this is Sub-section (2), and I wish to move: "To insert after the word ‘writing,' in line 14, the words ‘to a Judge of the High Court.'"

AN CATHAOIRLEACH

Would you pardon me for a moment? The next amendment we are dealing with is an earlier amendment of yours.

I thought that was passed over.

AN CATHAOIRLEACH

No, I passed over nothing.

Very well, I withdraw the following amendment:—"Section 1: To add at the end of line 5 the words ‘the reasons stated to be in writing and a copy given to the prisoner at the time of arrest.'"

Amendment, by leave, withdrawn.

I beg to move: "To insert after the word ‘writing,' in line 14, the words ‘to a Judge of the High Court.'" I see it constantly stated in this Bill, "shall certify in writing," but I have not seen to whom. Does he certify in writing to himself? Does he go into one room and write a report, and go into another room and accept the report? Perhaps the Minister would be able to explain that. As it was not clearly shown, I put down this amendment. I do not know would the Judge be the proper person to certify to. Perhaps the Minister would explain. Is he going to sit down to his desk and certify, and stick that certificate into a drawer? If that is so, I do not see much object in the certificate. I should like to be allowed to add now to this amendment what I was cut out from in the previous amendment: "For stated reasons to be shown to the prisoner."

AN CATHAOIRLEACH

You must keep to one amendment at a time. You have another amendment down in which you ask that a copy should be handed to the prisoner. At present you are on a different one, and I must ask you to confine yourself to it.

All right. I did not notice I had a second amendment down.

AN CATHAOIRLEACH

I must call your attention to the fact that you are neither treating the Seanad nor the Chair with proper respect. You come in and do not appear to know your own amendments. You take them in a different order, and do not know the contents and forms of them. At least, Senators who put down amendments ought to take the trouble to see that they themselves understand them before they submit them to the Seanad.

I think it is a misunderstanding. I perfectly understood where I was, but as my previous amendment on the same subject had been cut out by Senator Douglas's amendment, I was not able to bring it forward, and I did not notice I had a second one down.

AN CATHAOIRLEACH

I am anxious to help you and every other Senator to the best of my ability, but they must help me, too. They must understand what amendments they are moving and the order in which they are taken.

A good deal of time might be saved——

AN CATHAOIRLEACH

Yes, a great deal, if Senators would take a little more trouble to study their own amendments.

And other things. Who is the certificate to be sent to? I would like the Minister to say if it is to be sent to anyone in particular or to himself? If it is to himself, I do not think it is any good. If it is to some proper person, my amendment will be withdrawn.

The Senator's amendment is unacceptable. As to the point in the certificate at all, that question was raised in the Dáil, and the mover of an amendment which called for a definite record simply stated that he wanted, at least, to ensure that there would be that much trouble taken about the thing that a Minister would set his hand to a statement that "A B" was considered to be abusing his liberty to the detriment of the public peace and safety. It is the merest formal check on irresponsible action by any subordinate of the Ministry. To drag the Courts into it, to suggest that a certificate should be sent to the Judge of the High Court, is not in keeping with the spirit of the Bill—a temporary Emergency Bill, which legalises deterrent detention, which legalises detention without trial for a period of six months, during a difficult transition period from conditions of anarchy to what we hope may develop to be normal peaceful conditions. The exact value of the certificate might be difficult to say. It will at least be a Departmental record of the fact that the Minister assented to detention and concurred with the propriety of the detention of the individual concerned.

Amendment put and declared lost.

I beg to move:—"Section 2, Sub-section (2): To insert at the end of the sub-section the words ‘a copy to be handed to the prisoner.'" The Minister the other day animadverted on a statement of mine that it was the Bastille, and said I was apparently very badly acquainted with the history of France. That, in his opinion, may be so or not. As far as I know, subject to the Minister's contradiction, it is the very essence of the Bastille, and why it was called that, is that a person could be put into the Bastille without any definite charge being made against him, simply on the work of the King. That is exactly what is happening here. That is the essence of the thing being called a Bastille, and the essence of it here as well as in France. I want to get out of that to a certain extent by prescribing that the prisoner himself should be given a copy of the charge, so that when the case comes before the Appeal Committee he will be able to say: "These things are quite incorrect; such and such charge is not correct, and I can prove it." If he comes before the Committee and does not know what he is charged with, how can he argue against it?

I support the amendment. I think it is the very essence of justice to state that a man shall at least know what he has been deprived of his liberty for. Many things have happened in this country during the last few years that some time ago we thought would have been impossible, but there are things proposed in this Bill which we thought no Irish Government would ever think of proposing. It is a repetition of the old kidnapping by the Czar's police of politicians and others, hiding them away in the cellars of Moscow, and not allowing them even to know why they were kidnapped. It may be said that this is exaggerating the position, but there are all the powers to do acts of that kind here—filch prisoners away, pitch them into internment camps or prisons, and not even tell them why they are being kept there. It is certainly not asking too much that persons taken away in these circumstances shall have a statement of the reasons why they are being interned. The Minister is to certify in writing that the man is being detained for certain reasons. Where is the object or the justice in withholding these reasons from the persons interned. I hope that this will receive more consideration than other amendments of an equally reasonable character. The desire is to make the Bill as reasonable or mild as can be expected in the circumstances, and amendments of this kind should not be treated as hostile and turned down by a dead-weight vote without giving them serious consideration. It may be a display of force, but it is not a display of strength or statesmanship.

I support this amendment, which seems to be an eminently reasonable one. If a certificate has been given by the Minister, it has been given for some purpose, and I cannot see any more reasonable purpose than that it should be given to the prisoner.

It was contemplated that in practice, under this Bill, an Order would be served on the persons to be detained and the Order would set out in general terms the reasons for the detention. But words have been used which seem to suggest a confusion of thought One Senator used the word "charge"—that it is unheard of that a man should be arrested without charge, particularly as he will be coming up later before this Court of Appeal. Both the words "charge" and "Court of Appeal" show misconception of the provisions and of the purpose of the Bill.

There will be no charge, there will be no trial, and no Court of Appeal. There will be an Advisory Council or Committee before which detained persons will be at liberty to appear, if they feel that a mistake has been made, and that the public safety does not, in effect, require their detention. They will have an opportunity of showing and endeavouring to convince reasonable men of that. Any suggestion that this Council is to be in the nature of a Court, or that there is to be a trial, is out of harmony with the entire object of the Bill.

Senators know, or ought to know, that against some of the most dangerous people within our jurisdiction at the moment it would be utterly impossible to formulate a charge, or to sustain that charge with evidence. Senators know that it requires a rather higher degree of both moral and physical courage than, in fact, prevails to enable evidence to be brought forward against the people who are of most danger to the State. The reference to the Czarist police and all that is on a par with the reference to penal provisions against clergymen in the past that was used when discussing the flogging section of this Bill. In fact, we were dealing with penalties for people who were found guilty on indictment of the crimes of arson and robbery under arms. There is no analogy; but if you are going to make seven or eight men responsible for order and peace and stability and decency of life in this country, then you must give these seven or eight men very wide powers for dealing with the situation that exists and that may develop. No men will face the task, no men will accept the primary responsibility to the people for restoring order and stability here, and solving the social problems that exist, unless they are given wide powers, answering for the use of these powers to the Dáil. No detailed charge will be served on persons arrested under the provision of this Bill but they will be served with an order for detention, stating in general terms the reasons that prompted the Executive to secure their arrest and detain them temporarily.

Do I understand from the Minister in charge of the Bill that an order will be served on everybody arrested or detained something like Form 48B, I think it was called previously?

There will be a form.

I suggest that is not fair. A person may be guilty of any or none of these crimes or misdemeanours mentioned. It will be a general order, and the whole community or an individual cannot be held up on a general order of that kind. With all respect to the Minister, I say that it is not a question of giving power to the Executive Council to carry on the government of the country, but it is a question of protecting the rights of the citizens.

It is a question of both, surely.

I was going to suggest that the Executive Council could not possibly be in touch with the conduct of all people likely to be interned under this Bill. They will only be acting on the advice of certain people, and I suggest that it is not right to give such power. If people do wrong, it is not right to do wrong to other people. Because certain sections of the community do wrong, it is not right to pass a law that will leave it in the power of anyone to deprive others of their liberty without just and sufficient reason being given. The more we get into this Bill the more we see that it certainly denies the right of the citizen. It is all very well to serve a printed document informing a citizen that he is being detained because of so and so. That is not fair treatment. There ought to be some evidence as to the reason why people are going to be detained. I think that is the least they are entitled to get. It is quite possible that an innocent man or woman may be arrested and detained under this Bill. If only for the sake of one or two persons that might be illegally imprisoned we ought not to pass this Bill. I think the Minister should accept the amendment.

Amendment declared lost on a show of hands.

The next amendment stands in my name, but as a similar one has already been turned down, I do not intend to move it. The amendment reads: "Section 2, Sub-section (3): To delete in line 11 the words ‘an Executive Minister,' and to substitute therefor the words ‘the Executive Council or any Minister thereof authorised by them.'"

I think there is hardly any necessity in moving the next amendment, because it is practically the same as a previous one.

Has Section 2 been put?

AN CATHAOIRLEACH

Not when there are no amendments.

I think it is in accordance with the Standing Orders that each clause should be put separately.

AN CATHAOIRLEACH

I have no objection.

Section 2 has not been carried.

AN CATHAOIRLEACH

I know. It causes unnecessary delay; and if the clause is not amended, I think the inference is that the Seanad is in favour of the section as it stands.

That is just it.

Question put: "That Section 2 stand part of the Bill."
The Seanad divided: Tá, 23; Níl, 7.

  • William Barrington.
  • Thomas Westropp Bennett.
  • Dowager Countess of Desart.
  • Sir Thomas H. Grattan Esmonde.
  • Sir Nugent T. Everard.
  • Oliver St. John Gogarty.
  • Rt. Hon. Earl of Granard.
  • Mrs. Alice Stopford Green.
  • Henry Seymour Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • Edward MacEvoy.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran.
  • James J. Parkinson.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
  • Earl of Wicklow.
  • William Butler Yeats.

Níl

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • Col. Maurice Moore.
  • John Thomas O'Farrell.
Motion declared carried.

I move the following in Section 3, Sub-section 1: "To insert after the words ‘those authorities,' in line 30, the words ‘certify in writing that for stated reasons they.'"

Is doigh liom nach gadh moran cainnt ar an run so mar bhí an cheist ceadna againn cheana. The same arguments apply to that as to some of the previous clauses, where we ask that the matter should be put down in writing. The arguments that those words would bring the case before the Courts are of very doubtful validity. The intention of the amendment would be that the military authorities would state something definite for the Minister to go upon. This amendment, I understand, was accepted in the Committee Stage in the Dáil, and was taken out on the Report Stage. A very distinguished legal authority there did not, I understand, agree with the Minister's advisers that the amendment would leave it open to the Courts to enquire into the reasons. It is a matter for this Seanad to judge for themselves. I think if they come with an impartial and open mind to the matter they will be in favour of not having this matter so vague. I think it is a very dangerous thing that the unqualified statement of the Minister should be accepted. It should be remembered, of course, that this deals with prisoners in custody, and that their position can hardly be affected very much by any sporadic outbreaks of war in any particular locality. That seems to be the fear of the Minister. The amendment, I think, is a very moderate one. It simply asks why they are keeping a particular individual in custody. We have been told that great numbers have been already released. I have no doubt whatever that many more could be released without any danger to the State. I believe in times of excitement it is known that many a fellow who was absolutely harmless in himself, except perhaps that he had a loose tongue and talked flippantly of the Government, was arrested on the unsupported statement of young and inexperienced military officers.

Fellows went on the run, and remained on the run for a few weeks, and came back with an enlarged beard and an extra growth of whiskers from their sojourn in the wilds. They were regarded as popular heroes, and were stuck into prison. I have no doubt many of those could be released with advantage to the State. Men and women are detained without trial for very long periods. The case of those men may not have been sufficiently investigated by the officers responsible for their arrest. Other officers got into control, and mistakes are liable to occur, and great injustice as a consequence results to some of those people. We have no appreciation for the fellow up against the State, and it would be suggested that every attempt to amend this Bill is a direct act of opposition against the Government in their efforts to maintain peace in the State. I repudiate all such insinuations as that. It is an effort on our part to popularise the present form of government and to make people feel that while due protection is being extended to them, at the same time none of the rights extended to citizens in all parts of the world shall be filched from them by that Act. Executives come into power and perpetrate grave acts of injustice in the name of justice before they can be removed. It is our object not to leave it in the power of anyone to do this without being immediately brought to book in the matter. To justify such detention a statement should be made in writing that for reasons set forth the detention of the prisoner is a matter of military necessity. This would ensure that prisoners may not be detained without reasonable cause. The amendment cannot in any way affect the utility of the Bill or curtail the powers the Executive have taken.

I should like to urge the Minister to accept this amendment. We have heard statements to the effect that large numbers of prisoners have been released every week. If that is the case, there must be some specific reason for detaining the others. Is it too much to ask that those reasons should be stated in writing by the military officers who detain them? It is reported that, because of the confusion that existed for some considerable time during the conflict, and because of transfers of responsible officers from one district to another, there are large numbers of prisoners interned, and that no one has the slightest idea why they are interned. The mere fact is that they were arrested, and the people responsible for their arrest having left the Army or been transferred, nobody can say on what suspicion they were arrested or for what cause they are being detained. It is time that that position was investigated to some extent, and that some enquiries should be made into the detention of people who did not play a prominent part in the recent struggle. Those people did not play a prominent part at all, and their neighbours are well aware that they were never connected with any movement. That is causing a great amount of discontent, and it is the case of those people that this amendment would apply. It is a reasonable proposition, and in normal times to refuse it would be looked upon as tyrannical to the last degree.

I would accept this amendment if the words "for stated reasons" were left out. I have already explained the objection to those words. Senator Cummins has stated that one eminent lawyer disagreed with the opinion of the Government's advisers. Lawyers are apt to disagree, but it is not a matter that we could leave in doubt. If we are to set down in the Bill in that way that reasons for the detention of a prisoner should be stated, the principle is that the claims could be put forward that the Courts have power to examine into the sufficiency or otherwise of those reasons.

Senators who have talked about persons detained in recent months should know, or ought to know, that 75 per cent. of the persons detained were taken in arms, and they know that the only condition precedent to the sympathetic consideration of a prisoner's release was an undertaking from that prisoner that he would not take up arms against the lawfully elected Government of the people, and that he would respect the rights of his fellow-citizens and not injure the property or person of his neighbour. That was the only condition we insisted on before we were prepared to give very careful and sympathetic consideration to the question of releasing prisoners. The vast majority of the prisoners have refused to give any such undertaking, and it is substantially true to say that they hold the keys of their own cells. No one wants to keep those men living parasitically on their country, costing roughly £1 per head per week, for a single day longer than is necessary. The lists of prisoners are being scrutinised with a view to releasing as many as it is considered possible in a responsible spirit to release. It will depend on whether the improvement that is taking place for the last couple of months goes on progressively, and it will depend on the powers it is thought fit to give the Executive. If the powers are narrow, we will be forced into a conscientious discharge of our stewardship to the to take up a conservative attitude on the release of prisoners. It is true that there is a good deal of information at our disposal that we have not thought fit to communicate either to the Dáil, Seanad, or the people generally.

We would be glad that an improved commercial atmosphere in the country would continue to improve. We would be glad that the kind of faith cure that is taking place in the country would continue to take place. At the same time there is information at our disposal showing a very delicate and highly explosive position, and we have to keep at least one eye on that. It is proposed to release in the near future as many prisoners as it is thought proper, with due regard to the public safety. Before the elections we will try to release every man whom it is considered safe to release, and it is not fair to suggest that we are out to lock up anti-Government votes, as was suggested here the other day. There are two sides to the shield, and we have to watch those two sides. If the Senator who moved the amendment would leave out the words "for stated reasons," I would be prepared to accept it. But there is a technicality there, and it is at least doubtful that if these were inserted the Court would not claim that they had full power to call for those reasons and to examine them.

AN CATHAOIRLEACH

Does Senator Cummins accept the suggestion of the Minister?

No; I am afraid I cannot.

The Minister stated rather cautiously and guardedly that if people signed a certain document their positions would be considered. I think it is pretty well and generally known that numbers of people have signed that document and have not been let out. That is to say, the Minister claims the right, even where they sign a document, to keep them interned. That is one of the main reasons why others have not signed documents. When they see that those who have signed documents are not let out, they say: "Well, there is no reason why we should sign a thing like that and put ourselves in the way of doing a thing we dislike. Those who have signed have not been let out after all." I do not think it is quite fair to let the public believe that if people sign they will be let out. They are left under that impression, though I do not think the Minister stated that.

I did not.

Amendment put.
The Seanad divided: Tá, 7; Níl, 20.

  • Edward MacEvoy.
  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas MacPartlin.
  • John Thomas O'Farrell.
  • Col. Moore.

Níl

  • Peter de Loughry.
  • James Green Douglas.
  • William Barrington.
  • Dowager Countess of Desart.
  • Sir Nugent Everard.
  • Mrs. Alice Stopford Green.
  • Henry Seymour Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Dr. Gogarty.
  • Earl of Granard.
  • Thomas Linehan.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Wicklow.
  • James Moran.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
  • William Butler Yeats.
Amendment declared lost.

I move:—

To insert after the words "such Minister," in lines 35-36, the words "certifies in writing that for stated reasons he."

This amendment is somewhat similar to the last one, only the Executive Minister is the authority. I see no reason at all why my amendment could not be accepted. Probably legal phrases are very tricky, and so peculiar that maybe, while the Minister refused to accept it in the last case, he would accept it in this. I would like to emphasise the fact that this is dealing with people already interned, and the Minister has stated both in the Dáil and here that great numbers of men are being released. Now, if there is no reason for keeping those men in gaol, there must be some reason for keeping the others; and if there is some reason, I do not see why it should not be stated. I do not see why these men should not be told why they are kept in.

I do not think it would do the Government any harm, and, in so far as blaming them for not signing the documents is concerned, the Minister knows as well as any other Irishman that there has been an objection to signing any documents in this country for some years back. The very same feeling prevails with the men now interned as prevailed two or three years ago. I do not say they are the same class of men, or that the fight is of the same character, but they are Irishmen all the same, and they feel that signing any documents means some class of humiliation. Senator Colonel Moore has said many signed, and it did not do them much good. It does not appear that signing the document is any particular advantage to the men interned. The other night I met one of the members of the Dáil who was looking after the interests of a Government supporter who was interned. He was trying to find out why the man was interned. There was no one who could give particulars of the man's arrest. I do not know whether anything has been found out yet. If there was some reason stated as to why the man was arrested and interned, he might be able to make some move for his release. Perhaps the Minister could see his way to accept the amendment.

I make the same offer as I made to the Senator who moved the last amendment. I will accept the amendment minus the words "for stated reasons." I said no more with regard to the form of undertaking than that it was a consideration precedent to the consideration of a prisoner's release. In any case where that form had been signed a careful and sympathetic consideration is given to the prisoner's case. We released men who signed those forms, and they took up arms again. As soon as our faith in human nature got a few little shocks of that kind we were a little more careful. Some men signed the form with a view to getting out and renewing their activities, but they were disappointed to find that the signing of the form was not the master key to their cell doors. All cases in which documents are signed are carefully considered. We look at every case from the angle that a man wants to get out to lead a decent life.

What is the objection to accepting those words in Section 3 when they are already accepted in Section 2 Sub-section (2)? The words "for stated reasons" are in that section.

I am going to get those words taken out later on.

The Minister now informs us that he is going to get those words taken out of the Bill. They were evidently not inserted without full consideration in Committee in the Dáil, and the terrible things that he points out to us are just as likely to happen under Section 2 as under Section 3.

I believe it was through a mistake those words have been left in. They should have been taken out as a result of the Report Stage in the Dáil.

I think no harm will be done by the acceptance of the amendment. When the Minister stated that 75 per cent of those who were taken were taken under arms, he made a very alarming statement. The general impression is that only a small number had arms, and that fully three-fourths of them were taken without arms. The people who were taken without arms are the people we are anxious about. We do not want to turn adrift people who will turn their hands against the State. No prisoners should be kept longer than is humanly necessary, and they should be told why they are being kept, so that they will be able to make an effort to clear themselves of any charges made against them, and to prove that those charges are false.

Amendment put.
The Seanad divided: Tá, 8; Níl, 20.

  • William Cummins.
  • Michael Duffy.
  • Sir Thomas Esmonde.
  • Thomas Farren.
  • Edward MacEvoy.
  • Thomas MacPartlin.
  • Col. Maurice Moore.
  • John Thomas O'Farrell.

Níl

  • James Green Douglas.
  • William Barrington.
  • Thomas Westropp Bennett.
  • John C. Counihan.
  • Peter de Loughry.
  • Countess of Desart.
  • Sir Nugent Everard.
  • Oliver St. John Gogarty.
  • Rt. Hon. Earl of Granard.
  • Henry Seymour Guinness.
  • Rt. Hon. A. Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
  • William Butler Yeats.
Amendment declared lost.
Question put: "That Section 3 stand part of the Bill."

I rise to oppose Section 3 on general principles.

The Section was declared carried, and a division was challenged.

Could not an appeal be made to these people?

AN CATHAOIRLEACH

You mean Senators? Better so describe them.

Would it not be possible that these Senators who are forcing these unnecessary divisions, and wasting the time of business people would be satisfied with a show of hands? They may not be business people, but people here do not like to be giving their time unnecessarily.

Is it in order to make a speech when a division has been called for?

AN CATHAOIRLEACH

It is not in order, but it is in order for every Senator to ask whether he might not make an appeal. He cannot ask me to do so, because I am not going to do it. He can himself suggest it, and I do not want to prevent any Senator suggesting that this matter of challenging divisions might be going too far.

I want a ruling on the point I made, that when a division is called for, there can be no speeches. If a Senator wishes to make an appeal he can do so, but there can be no further discussion when a division is called.

AN CATHAOIRLEACH

If he has an opportunity of making an appeal, and when a division has been called for, as in this case, I think now is the proper time as it does not stop the taking of a division.

It was only while we were waiting for the division that I made the suggestion, and I did not want to irritate the Senators who called for it. I only wish to point out that it is really wasting valuable time.

AN CATHAOIRLEACH

The Seanad notices your suggestion, but whether it will be acted upon or not I do not know.

As one who has challenged divisions I accept the statement that this suggestion is offered in a proper spirit, but I would point out that we also have a sense of responsibility. Some Senators may view their sense of responsibility as coming here and simply passing as rapidly as possible, particular measures. We have another sense of responsibility which is equally important from our point of view. To say that we are simply obstructing or holding up the public business is altogether beside the mark. We claim the right to discuss every measure, however necessary, and to challenge divisions. We have challenged divisions because of the statement made by the Cathaoirleach that when a clause is not amended it is taken for granted there is general agreement upon it. Because of the very serious nature of the Bill, and of the serious in-roads it makes on the liberty of the subject and the citizen generally, we think it our duty to record our votes properly on every section.

AN CATHAOIRLEACH

I said that a show of hands might be equally satisfactory.

But there is no record.

I think the Senator may be quite right if divisions were taken to Sections. A show of hands could be taken on the amendments, and we could get ahead faster. I cannot see how the principles of the Party Senator O'Farrell represents are in any way called into account by reserving divisions for the Sections. I merely throw out the suggestion as the question has not arisen in the Seanad before. I think we might cooperate with each other, and debate to the full, but when it comes to a division on an amendment a show of hands might meet the case.

May I point out that unless we abolish our Standing Order, which says that every Senator has a right to call for a poll, we cannot interfere with the right?

AN CATHAOIRLEACH

That is quite erroneous. The present discussion is not a discussion on the strict right at all, or on the interpretation of the Standing Order. There can be no doubt about that. The present discussion is the result of an appeal by a certain section of the Seanad to another section suggesting that they should be content as regards the amendments with a show of hands, and as regards the sections with a division. That is only a suggestion, and we will see whether it is going to be accepted when we come to the next amendment.

With your permission I would like to make another suggestion, and that would be that the main body of Senators should not make it a principle simply to vote against every amendment, because it comes from this side. It may not be done deliberately, but it is a remarkable coincidence. If they will give a little more consideration to reasonable suggestions from this side then we might be in a position to take a suggestion from them.

AN CATHAOIRLEACH

The difficulty remains of deciding what are reasonable suggestions.

Senator O'Farrell has said something with regard to the responsibility of the party that he represents. My responsibility, I feel, is to sit here and see the matter out to the end, no matter how long we sit.

Question put: "That Section 3 stand part of the Bill."
The Seanad divided: Tá, 20; Níl, 5.

  • James Green Douglas.
  • William Barrington.
  • Thomas Westropp Bennett.
  • John C. Counihan.
  • Peter de Loughry.
  • Dowager Countess of Desart.
  • Sir Thomas Esmonde.
  • Sir Nugent Everard.
  • Oliver St. John Gogarty.
  • Rt. Hon. Earl of Granard.
  • Henry Seymour Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • Edward MacEvoy.
  • James MacKean.
  • Earl of Mayo.
  • William Butler Yeats.
  • John MacLoughlin.

Níl

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Col. Maurice Moore.
  • John Thomas O'Farrell.
Section declared carried.
SECTION 4.
(1) As soon as may be after the passing of this Act, there shall be established by an Executive Minister one or more Appeal Councils consisting of not less than three members, of whom one shall be a person certified by the Attorney-General to have legal knowledge and experience.
(2) Any person detained in custody under this Act; whether under an order of an Executive Minister or by the military authorities, may in the prescribed manner request that an enquiry into the matter of his detention be made by an Appeal Council, and such Council shall thereupon with all convenient speed enquire in the prescribed manner into the case of such person, and shall report in the prescribed form to such Executive Minister the result of such enquiry.
(3) At any enquiry under this section the Appeal Council shall be furnished with the reports or certificates in virtue of which the person whose case is being inquired into is being detained.
(4) Whenever an Appeal Council has enquired into and reported on the case of any person under this section, and either
(a) such Council has reported that there is reasonable ground for suspecting him of having committed or been engaged or concerned in the commission of any of the offences mentioned in the Schedule to this Act, or
(b) an Executive Minister, having considered the report of such Council, is of opinion that the public safety would be endangered by such person being set at liberty,
such person may be detained in custody in any place within the jurisdiction of Saorstát Eireann during such period as an Executive Minister considers that the public safety would be endangered by such person being set at liberty.
(5) No person serving a sentence of imprisonment or penal servitude imposed by a tribunal established by the military authorities shall be entitled to appeal to an Appeal Council under this section.
(6) An Executive Minister shall make regulations for the execution by Appeal Councils of the functions imposed on them by this section, and the word "prescribed" where used in this section means prescribed by such regulations. Any such regulations shall be laid before each House of the Oireachtas as soon as may be after they are made, and if either House of the Oireachtas shall pass a resolution annulling the regulations, the regulations shall be annulled accordingly, but without prejudice to the validity of anything already done under them.

I beg to move:—"Section 4, Sub-section (1): To delete in line 46 the words ‘a person certified by the Attorney-General to have legal knowledge and experience,' and to substitute therefor the words ‘a Judge of the High Court.'" I think there are a good many people in Ireland who might be certified as having a knowledge of the law and whom we would not have very much confidence in. I think, if it were left to a Judge, that people at all events will have a great deal of confidence in him. I know the Minister will say that the Attorney-General would not certify any improper person. I do not think myself that he would—I do not question for a moment. Still, it would give more confidence to the people generally if a man in the position of a High Court Judge or some such person were on this Commission, which will be a very important one.

I think this is a good amendment. There is a precedent for an arrangement of this kind in Commissions set up in another place for the purpose of dealing with this question of people who are in prison for political offences. This is a very peculiar Bill, and some of us who feel it our duty to vote for it do not like it any the more for that. It would have a very good effect on public opinion in the case of an incarcerated man if a Commission were appointed having as its chairman possibly, or one of its members, a person with the authority of one of our Judges. That would remove any legitimate objection that might be made to a revising tribunal in these cases. I hope the Government will consider this question with an open mind and see if they cannot agree to it.

The tendency seems to be to give this Advisory Council or Committee the complexion of a Court, and to make it obligatory that one of its three members shall be a Judge of the High Court would increase and emphasise that aspect. In point of fact, it is not a Court, and it is not proposed formally to charge persons detained. The idea is that detained persons should have an opportunity of going before three reasonable fellow-citizens and rebutting or attempting to rebut the suggestion that the public safety in any way requires their detention. It is considered advisable that one of three members should have some legal knowledge—some kind of training that would enable him to summarise facts and appreciate evidence accurately—but it is not a Court. Apart from everything else, I would ask Senators to dwell on the question of the advisability of putting a highly-salaried Judge of the High Court on to work of this kind. The persons detained will be persons against whom the Executive Council feel perfectly satisfied that there is reasonable suspicion of acts which endanger the foundations of the State and the foundations of Society. The proposal to set a gentleman with a salary of £2,000 or £3,000 a year on the work of hearing appeals from people of that class is doubtful wisdom and doubtful finance. Any barrister of four or five or six years' standing is capable of doing all that is required of members of that Advisory Council.

May I ask whether there would be any way, short of appointing a Judge of the High Court, to strengthen these Councils? This is the only Appeal Council that is being suggested for the prisoners, and I think it ought to be suggested to the Minister that he should consider the advisability of strengthening the Council, if it is at all possible to do so. A Judge of the High Court would undoubtedly be a very high official to bring into the matter, but there may be somebody not quite as high as that. Of course, this would entirely rely on the Attorney-General's opinion, and no doubt the Attorney-General would select some sound man of legal experience. I think the Ministry would not be wrong in suggesting so many years' experience, so that we would be sure of getting a qualified person.

AN CATHAOIRLEACH

Would you suggest a practising barrister of not less than ten years' standing?

I would leave it to the Minister to say.

If the Minister would agree to a compromise, I would be quite agreeable.

Perhaps we could say a practising lawyer of not less than five years' standing, and leave it open to appoint a solicitor or barrister.

AN CATHAOIRLEACH

I think that would be wiser.

I would prefer to have a Judge; but if we cannot get any more, I accept that.

AN CATHAOIRLEACH

The amendment is now altered to read: "To substitute the words ‘a practising barrister or solicitor of not less than five years' standing."

Amendment put and agreed to.

Senator Moore asked me to move this amendment:—"Section 4, Sub-section (3): To insert after the word ‘Council,' in line 56, the words ‘and also the prisoner.'" This amendment simply provides that the certificate, by virtue of which the prisoner is detained, shall be supplied to the Appeal Council and also to the prisoner. If the members of the Council are supplied with the particulars of the circumstances under which the prisoner is detained, it is at least reasonable that the prisoner himself should have a similar copy of the stated reasons.

There would be no objection to giving the prisoner the certificate on which he was detained, and, generally, there would be no objection to giving him rather full information on the whole question of the matters of which he was suspected, but there is a very definite objection to laying before the prisoner the complete dossier of his case, which is what would be involved by acceptance of the amendment. It is not proposed to lay before the prisoner all the detailed information that is to hand.

AN CATHAOIRLEACH

It is not "reports and certificates." It is, in the alternative of that that it would be necessary to supply the certificate. It is "reports or certificates." which would apparently mean that the prisoner is to get one, but not both.

As a general thing it can be understood that the Appeal Council will be supplied with fuller information than would be supplied to the prisoners. There are obvious reasons for that. Prisoners may ask to appeal before the Council simply with a view to ascertaining the source of the evidence on which they were arrested. It would not be wise to put into the hands of such prisoner the dossier of his case. Prisoners appearing before the Council will be left under no illusions as to the general nature of the suspicions which rest on them, and the considerations which led to their arrest and detention. The important point is that this is not a tribunal in the ordinary sense of the word. A prisoner coming before that body takes on himself the onus of convincing three reasonable men that there was no reason for detaining him. These people will have at their disposal accurate information as to his arrest. They may put questions to the prisoner on that dossier, and will give him such information as it is considered wise and safe to impart to him. By safe, I mean proper protection for citizens who may have given information for their own protection and the protection of the community generally. It is not a matter where you can lay down a hard and fast rule, but you must be careful to preserve to yourself the right to withhold from the prisoner a certain amount of information you have with regard to him. Prisoners of a certain turn of mind may, with a view to vengeance in the future, come to find out where the information with regard to them came from.

Amendment put.
The Seanad divided: Tá, 5; Níl, 19.

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas MacPartlin.
  • John Thomas O'Farrell.

Níl

  • James Green Douglas.
  • William Barrington.
  • Dowager Countess of Desart.
  • Sir Nugent Everard.
  • Mrs. Alice Stopford Green.
  • Henry Seymour Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Thomas Linehan.
  • Edward MacEvoy.
  • James MacKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran.
  • James J. Parkinson.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
  • William Butler Yeats.
Amendment declared lost.

I beg to move the following amendment:—Section 4, Sub-section (4). To delete the sub-section and to substitute the following new sub-section therefor:—

"(4) When such an Executive Minister shall receive a report from an Appeal Council that there are no reasonable grounds for suspecting him of having committed or being engaged or concerned in the commission of any of the offences mentioned in the Schedule to this Act, he shall, within one calendar month, order his release unless—

(a) he shall refer back the report to the Appeal Council for the consideration of further evidence, or:

(b) the person be charged with any offence punishable by imprisonment."

The object of my amendment is to try and make it clear that it is the intention, unless there are reasons, that when the Appeal Council recommends the prisoner to be released it puts the onus of his release on the Minister as soon as he receives a report to that effect unless he is prepared to refer it back on further points, or unless he is prepared to have the person charged before the Court.

The way the Section is worded does not seem to make it clear what the circumstances are, how, or what time the person may be released, if at all. I understand the Minister's point that this is not a Court, and I do not think it is desirable that it should be thought that it is a Court, because, if so, a person failing in his claim to be released would virtually be found guilty. I do not want to suggest that this is anything more than a claim to come before the Advisory Council, but to ease the public mind and make it clear that as soon as the Council has examined and reported, they should be released within one month. If the Minister considers the clause he will see that something should be inserted so as to make it clear that he should be released in a reasonable time.

The reason I am urging this is because I think it is wise and right, and because a number of persons have the impression, it may be genuine or it may not, that the Appeal Council is not a genuine body, and is not intended to function, and that no one will ever know whether a case is being heard by the Council or not. With abnormal legislation of this kind it is well that you should have the public with you, and that you should allay any uneasiness that may occur. On the Second Reading debate a suggestion was made in the Seanad that the Government had inserted certain of these internment clauses for the purpose of attacking their political opponents in a vindictive spirit. I should like to say that anyone who took any part in the so-called negotiations that took place would absolutely give the lie to that statement. There never was anything which could lend any colour whatsoever to the suggestion that there was a vindictive or personal element, or anything of that nature. I hope that by either accepting this amendment or, on the next Stage, bringing in another amendment, the position will be made quite clear.

I feel disposed to accept this amendment. It gets over one difficulty. Attempts were made in the Dáil, when they were dealing with the question of the Appeal Councils, to give to the Councils mandatory powers of release that were objectionable. Just as the arrest of persons is an Executive act, so ought their release to be an Executive act. It should not lie with an advisory body, set up the Government or a Minister, to order, the release of any person. I told the Dáil I did not conceive that in 100 cases there would be one in which the advice of that body would be set aside, and yet the principle was important that the power of release should lie with the Executive Council, and ought not to lie with this body. Senator Douglas' amendment is an improvement on that. If the Executive Council are to receive an order it is better that it should come from the Oireachtas than an Adsory Departmental Committee, and this amendment gives a month. Even after the Advisory Council has reported that there does not seem to be grounds for the detention of a particular individual, if the Executive Council is strongly of opinion that his release would be dangerous, then they have a month in which to produce any further evidence that may be at their disposal for the consideration of this Committee. If the Senators were to accept this amendment, and I see no reason why they should not, I would be prepared to recommend its acceptance to the Dáil.

AN CATHAOIRLEACH

A slight alteration would need to be made in the amendment in the following manner:—"No reasonable grounds for suspecting him," might be made to read "no reasonable grounds for suspecting a detained person."

I was just altering that, and I accept the alteration you have suggested.

This goes some little distance to improve the clause, and I suppose we must be thankful for small mercies. We have little hope of getting any of the amendments put down by us accepted, and I am going to support this amendment on this Stage in the hope that on the next Stage it may seem proper to eliminate the words "within one calendar month," or at all events reduce the time. It is a terrible hardship on a person, particularly one with a family, to be kept in a month after he has been declared innocent. It is no encouragement to hasten his release or investigate his case. Sub-section (a) is somewhat vague. I do not know exactly what it implies, or whether it means that some evidence already in possession of the Government had been held back, and ultimately given for the purpose of detaining the person still longer. I am prepared to vote for the amendment at this Stage.

Amendment, as altered, agreed to.

In view of the amendment proposed by Senator Douglas and accepted, I think the following amendment of mine will fall through:—

"To insert after the word ‘or,' in line 65 the words ‘for regarding his detention as a matter of military necessity or desirable in the interest of public safety."

It covers what I want, but in different terms. The prisoner is arrested for three causes, first as a matter of military necessity, second as a matter of public safety, and thirdly, because he is guilty of offences set forth in the Schedules. Now, the Appeal Court has not power to deal with those offences. In the case of offences where prisoners have been arrested through military necessity, or for public safety, I understand that report would not be given to the Appeal Court. I think that is not correct. I think that is not as it should be.

AN CATHAOIRLEACH

What portion of Sub-section 4 are you dealing with now?

Sub-section 4 I am speaking of.

AN CATHAOIRLEACH

That has been deleted.

I know, but that does not affect the question I am raising.

AN CATHAOIRLEACH

It must. If Sub-section 4 has gone, and there is a new Sub-section in its place, your amendment goes.

I want to be clear as regards those who will appeal; will their cases be reported upon no matter from what cause they are arrested?

AN CATHAOIRLEACH

I do not quite follow.

I am speaking of this Sub-section 4.

AN CATHAOIRLEACH

That sub-section is gone.

But I take it the new sub-section deals with the question of offences. There are offences upon which the Court of Appeal would not be in a position to report.

The position with regard to this Appeal Council would be that it is free to hear the cases of all persons detained without trial, that is to say all persons arrested under the provisions of this Bill. The military, while a condition of war or armed revolt prevailed, would be free to hold any prisoner, and nothing that this council could do or recommend would alter that fact. But, if a state of war or armed revolt were declared at an end, then the provisions of this new Sub-section would apply to all prisoners, both to prisoners arrested if such were to happen that they were arrested under the provisions of this Bill, and the prisoners who were arrested under a state of war or armed revolt, and whose detention is prolonged by the Bill. But we could not in legislation interfere with the inherent common law right of the military to detain any prisoner whom they thought was a matter of military necessity to detain. The new sub-section has everything short of an over-riding power of the military in a time of war, and when the time of war would be at an end, would have complete power to deal with prisoners whose arrest was, in the first instance, made as a matter of military necessity.

Amendment by leave withdrawn.

I move:—In Section 4, Sub-section (6). To delete in lines 16-17, the words "as soon as may be," and to substitute therefor the words "before the dissolution of the present Oireachtas."

I propose this amendment, and the reason I do so is because the Oireachtas will not be sitting. The Ministry say that they will lay these matters before the Oireachtas, and if either of the Chambers object, that it may be withdrawn. That sounds very pretty on paper, but the Oireachtas will not be sitting. There will be a dissolution some time. I do not know when. Until after the elections these things cannot be put on the table at all. Therefore, I suggest that before the dissolution of the present Oireachtas these papers should be put on the table, so that the Seanad would have a right to give an opinion on the matter.

I think the amendment is scarcely reasonable. The preparation of these regulations will take some little time, and if the Senator's amendment were accepted the dissolution would need to be postponed in order that these regulations might be considered. "As soon as may be" in that context is, I submit sufficiently imperative, and the Senator may feel that no time will be unnecessarily lost in the preparation of these regulations. If when they are completed the Oireachtas is not sitting, it may be assumed that immediately after the elections the new Dáil will be summoned, and the regulations will be laid before them. In the meantime there is provision that anything done under the regulation will not be prejudiced by the fact that they did not receive sanction.

Amendment put and negatived.

Question put:—"That Section 4 as amended stand part of the Bill."
The Seanad divided. Tá, 15; Níl, 3.

  • William Barrington.
  • Thomas Westropp Bennett.
  • Dowager Countess of Desart.
  • Sir Nugent T. Everard.
  • Henry S. Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • Earl of Kerry.
  • Edward MacEvoy.
  • John MacLoughlin.
  • James Moran.
  • James J. Parkinson.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
  • William Butler Yeats.

Níl

  • Thomas Farren.
  • Thomas MacPartlin.
  • Col. Maurice Moore.
Section declared carried.

I beg to move:—Section 4. To insert after this section a new Section 5, as follows: "5. As soon as may be after the passing of this Act, there shall be established a Prisons' Inspection Committee of three persons of recognised status and independent position (to be appointed by the President of the Executive Council) who shall be empowered to visit and inspect any prisons or places of internment in Saorstát Eireann, to investivate any complaints that may be made by persons under detention other than those connected with the reasons for their detention, to examine the general conditions obtaining in such prisons or places of internment, and to report thereon to the Minister for Home Affairs."

In moving the amendment I hope it will receive the favourable consideration of the Minister. I express that hope because during the discussion of the measure in the Dáil a great many of the Deputies expressed a very strong feeling in favour of some suggestion, such as is indicated here. As a matter of fact on no less than four occasions amendments in this direction were introduced. One of these amendments dealt with the appointment of certain medical members of the Oireachtas, and was ruled out of order. The other three were rejected by the Minister mainly on the ground that to allow the Dáil or County Councils to appoint Committees of Inspection, as was proposed in these amendments, would be utterly out of order; that it would not be fair to submit or subject the actions of the people who are in charge of these prisons or detention camps to the criticism of outside bodies, and that it also would virtually mean the abdication by the Government of its own responsibilities and functions. In that contention I think the Minister was unquestionably right, but as this amendment does not err in that direction I hope he will be able to reconsider his attitude to it.

The amendment, I may say at once, is as much in the interest of the Government as it is of the internees and of their relatives and friends. It is brought forward in the hope that if the Minister can see his way to nominate a Committee of three persons, men or women, who fulfil the conditions of recognised status and independent position, that it will go a long way to dispel the cloud of mistrust and suspicion that, unfortunately, has grown up around the whole question of detention and the treatment accorded by the Government to its political opponents. To account for that suspicion and mistrust we have to carry our minds back a little way and to think of those drear months last winter when every day brought forth its tale of horror and outrage; when hundreds of persons were being arrested, both men and women; when party spirit ran high, and the passions of civil war were in the ascendancy. If we think of that, we can realise that the conditions under which many of these internees were placed must have been one of considerable hardship. What else could be expected. The existing prisons were full to overflowing, and the arrangements for the housing and feeding of hundreds of men and women drawn from all parts of the country, and between whom no distinction could be made, had to be hastily provided. Their medical supervision, the sanitation of their camps, their safe custody, and so on, had also to be provided for, and this had to be done largely by the officers and men of an Army that had only recently sprung forth, as it were, from the void, and which lacked training, had little idea of discipline in the ordinary sense of the word— I am not making any complaint about that, because it was inevitable—and who had no experience, at least no knowledge, of the duties which, under the new order of things, they would be expected to perform. Is it any wonder that in such circumstances discontent and disorder on the part of those under detention were rife?

Many of the internees very naturally resented their arrest. Others were unruly and insubordinate. Few of them would conform to any regulations or submit to any discipline, both of which, I need hardly say, were absolutely essential if any kind of decency or order was to be maintained. As we all know, in some cases the prisoners, with the possibility of getting out, broke up the furniture, burnt their beds, choked the latrines, and did other things which could not be defended, and which only aggravated the situation. Can we be surprised if under such circumstances and in face of such behaviour reprisals did take place, and that soldiers took the law into their own hands and adopted rough and ready methods for putting a stop to these irregularities? Can we be surprised if, in order to improve their position, the internees made the most of the situation, and wrote home to their relatives and friends gruesome details and exaggerated reports of their treatment? The familiar molehill became a mountain, and, to add to all this, the public protagonists of those who were opposed to the Government piled up the agony, issuing a weekly bulletin of what I can only say were mendacious reports respecting the sufferings of the internees? Under such circumstances can we be surprised that many of the relatives and friends of these unfortunate people were very much concerned for their safety and for their health? Happily those days have now passed away, I hope never to return.

With the discipline and efficiency of the Army very much increased, with the higher instincts of our human nature coming into play and reasserting themselves, with party passions dying down, may we not hope that such irregularities will not now be possible, and that if they are, we may be quite certain that the military authorities will put them down with great insistence. We may, I think, be satisfied that under present conditions the position of the internees is as satisfactory as, under the circumstances, is possible. Liberty is, as has been expressed by many Senators, a subject which is dearest to men's hearts, and I hope that some means may be found, as the Minister told us to-day, of releasing a considerable number of these men and women, who are now detained, before very long, and that in any case, long before the expiry of this Bill, the whole of these persons may be restored to their homes. In the meantime, I think that if the Minister can see his way to obtain the services of three men or women who will fulfil the conditions laid down, that their very presence and their association with the Government in the administration of the prison camps, and so on, will inspire confidence and allay any anxiety that may still be felt on behalf of the internees.

I trust it will meet the Senator when I say that I am prepared to accept Amendment 33 on the Orders of the Day in the name of Senator McPartlin to appoint honorary visitors to places of detention who will report to the Minister for Home Affairs for the time being. The need for the inspection of these places, an inspection that will not be official, is obvious. I am glad the Senator stressed the point that these prisoners themselves took good care to ensure that their conditions would be far from ideal. The mania for destruction did not desert them on their arrest, and they did damage on a large scale to the extent of thousands of pounds in places of detention. They did such foolish, wanton things as smashing the hot water system in their places of detention, and then complained of the cold; tearing the fibre out of mattresses; stuffing the lavatories, and then complaining of unsanitary conditions. There are complaints of congestion, and yet if they had succeeded in their attempt to burn Maryborough Prison there would be more congestion.

The Minister for Defence dealt at length with this aspect of the question recently when commenting on conditions in Wicklow Gaol. Every attempt has been made to ensure decent sanitary conditions in places of detention, and any failure has been due to the conduct of the prisoners themselves. It is humanly impossible to keep conditions properly in places of detention without a reasonable amount of co-operation on the part of the prisoners, and that co-operation has not been forthcoming. I am prepared under this Bill to appoint honorary inspectors, decent level-headed citizens here and there through the country on condition that their reports will be made to me in the first instance, and that only in the event of their finding the reports not investigated or proper action not taken, would there be publication to any other source. After all if the Executive is to have the real power and real responsibility delegated to it by the Dáil, then any matter which calls for comment by these inspectors should be reported in the first instance to the responsible Minister. Only in the event of clear failure to take action on any matter which requires action, should there be publication elsewhere.

The chief difference between the amendment that the Minister says he will accept and the amendment put forward by Senator Sir Hutcheson Poe, is that the latter's says the persons appointed shall be persons of recognised status and position. I think it is very desirable that they should be such persons. Otherwise you will find it difficult to get the country to believe that the Government has not somehow or other settled the matter beforehand with these people. I do not believe that the Government would do such a thing, but I also do not believe that they will carry the same weight with the people as if the Minister had accepted Senator Sir Hutcheson Poe's amendment, that they should be persons of independent position and recognised status. I would be glad if the Minister would let us know what kind of person he proposes to appoint.

AN CATHAOIRLEACH

This is a little out of order. The proposition is to insert a new section after Section 4. We cannot debate an amendment to Section 13 now. We have got to dispose of Senator Sir Hutcheson Poe's amendment first. It might be that, in view of the Minister's statement the Senator would withdraw the motion now before the Seanad in favour of Senator MacPartlin.

As to withdrawing my amendment, I feel bound to ask the Minister to appoint persons that Senator Yeats has alluded to as described in the amendment. I do so entirely in the interests of the internees and their friends, as the suggestion the Minister made about appointing certain medical officers throughout the country will not satisfy these people. I am not surprised. The conditions, I am sure, have led to hardship. I believe fully in the honesty and the good intentions of the Minister, but there are plenty of people who do not. It is suggested that the want would be met by appointing dispensary doctors, or whoever you like, very worthy and very good people, but they cannot command the confidence of these people. In view of the strong feeling expressed in the Dáil I believe the feeling I myself voice is the feeling of the Seanad. I wish, however, to leave the matter in the hands of the Minister.

AN CATHAOIRLEACH

Would not your purpose be accomplished if, when we come to Section 13 the Government accepted Senator MacPartlin's amendment with the addition of the words "detained therein, by persons of recognised status," and so on? If these words were put in they would meet your view, and probably the Government would not object.

I would like to support Senator Sir Hutcheson Poe's amendment. I think he has got much further than we did in improving the Bill when he has got the other amendment accepted.

AN CATHAOIRLEACH

It distinctly says in the amendment that there is to be no remuneration.

Would it not be possible that the amendment could be taken in connection with Colonel Poe's amendment in Section 13?

AN CATHAOIRLEACH

It would be just as simple if Colonel Poe's amendment were accepted. I fail to see any difference except that one specifies the qualification.

There is just this difference. In Section 13 it provides for regulations, and the regulations will provide, with the acceptance of Senator McPartlin's amendment, for inspection by honorary inspectors, and it will at the same time define conditions under which inspection could be carried out, and the persons to whom the reports or complaints are to be addressed. If we merely put in the Bill this new Section which Sir Hutcheson Poe proposes, the matter is left vague. It would be necessary, when inspectors are appointed, to have a clear understanding as to the quarters to which they should report any matters which they consider called for attention. I would ask that the persons to be appointed to inspect would be persons not in receipt of any salary or emolument from the Government. Senator MacPartlin's regulations come in under Section 13, and the regulations made with regard to inspection are set out.

Could not Colonel Poe and Mr. McPartlin settle the matter between themselves after consultation with the Minister?

It seems to me difficult to understand that the few words "recognised status" and "independent position" should be excluded.

AN CATHAOIRLEACH

It gives it much greater importance if this appears as an independent section rather than have it dragged into another.

I think the Minister would be extremely unwise not to accept this amendment. It is a notorious fact in the city of Dublin that there are a number of people who are worked up to a terrible pitch about stories told about their relatives in prison. They are being played upon by certain people, and these stories are doing a great deal of harm to the Government. I think in the interest of the Ministry that it would be wise to accept the amendment, that independent inspections and reports should be given and thus prevent certain people trading on the sufferings of others.

My preference for Mr. McPartlin's amendment is this. There will possibly be six or eight places of detention throughout the country, and to set up an inspection Committee of three, presumably resident in Dublin, would involve a certain amount of expense to these people by reason of their travelling to these places. My conception of the future was that near these places we would make a selection of sane, level-headed citizens, and ask them to act as honorary inspectors and define their duty.

As there is obviously a fundamental agreement, I suggest that this should be brought forward on the Report Stage after consultation with the Minister. I suggest that you should combine both ideas, and that power to make the regulations should be put in Section 13. By that means you give the Minister power to make regulations in Section 13.

I quite agree with Senator Douglas. I think it would be the most common-sense plan for the two Senators to come together and settle this amendment on the Report Stage. The Minister has stated that these Committees should be local, and I quite agree with him, because I foresee what might happen. Once you set these people up you cannot get rid of them when the Bill comes to an end. I think the Minister's remarks are very sensible and will lead to a saving of expense.

Might I suggest that the Minister himself might introduce the words on the Report Stage?

I would undertake to bring up on the Report Stage a section making it quite clear what my conception of the future is. I simply visualise near each place of detention three or four persons appointed, with a reputation for common-sense and straight dealing, and we ask them as a public duty to make occasional visits and inspections of the places of detention, and bring any matters under the notice of the responsible Executive Minister that may require attention.

AN CATHAOIRLEACH

The procedure should be for both Colonel Poe and Mr. McPartlin to withdraw their amendments and wait until they see the clause which the Minister will introduce.

Perhaps the Minister would be willing that Mr. McPartlin and I should go into this matter with him? We are willing to accept any suggestion which will give effect to our view. We had no idea of appointing paid men in Dublin, but only men and women who would be willing to do that duty free.

I will be quite willing to discuss the matter with the Senators.

AN CATHAOIRLEACH

Then this amendment and the amendment on Clause 13 are by leave withdrawn.

Would I be in order in moving an adjournment for tea? I have some knowledge of the provisions of the Factory Act, and they provide that work people shall not be allowed to remain at work for a period of five hours without a break. If we provide that in an Act of Parliament surely we should act up to it ourselves.

I move that we meet again at 8.30 p.m. and sit until 10 p.m.

I suggest that it would be better to go on. I think we would gain far more respect if we went right through with our business as far as possible. Why should we adjourn, especially, if we are not going to get this Bill through this evening?

AN CATHAOIRLEACH

I think it is plain that if we adopt the suggestion of Senator Guinness we will not get through this Committee Stage this evening.

We do need some sustenance, and there may be some important Clauses in the Bill dealt with while we are away. It would be better for us all to be here rather than have us coming in in snatches and patches. It would be a great relief if we knew when we would be relieved to-night. Is it proposed that we should have an all-night sitting?

AN CATHAOIRLEACH

It is in the hands of the Seanad. I do not want an all-night sitting.

I think the Seanad might decide now whether it shall go through the whole night or whether we work until 10 o'clock and resume the business some other day. I do not think the business of the country calls for an all-night sitting.

AN CATHAOIRLEACH

You were not here when I had to announce that between the Bills we have already got and the Bills of this week there would be seventeen in all.

If we begin by sitting up all night we will never get through with seventeen Bills. I have had some experience of training people. I never found it was the wisest thing to begin with your utmost efforts at the start. I think we might begin by getting accustomed to things. Also we have not all got beds in town.

AN CATHAOIRLEACH

The President is here now. He may have some information to give.

I would not like to interfere with the dinner hour of the Senators. We have been considering for some time the question of dissolution, and in that connection we also had to consider the various Bills which we would like to see passed by both Houses before dissolution. I have had the advantage of having a preliminary consultation with the Dáil, and we have got general agreement upon a number of Bills that will be non-contentious. I have been in the Dáil all the evening, and three Bills are being sent up from it this evening. I do not think any of those three will provoke much opportunity for contention in the Seanad. But, in order that it would be possible to dissolve at the end of the week, I am afraid that we will have to ask the Seanad to give us some assistance with regard to the matter, and in that connection I would like to say that we have given an undertaking to what may be termed the opposition in the Dáil that they would not be called upon to sit next week. To some extent that limits our time, and if it would be possible for the Seanad to help us I think it would almost be necessary in the case of amended measures that we should have them back in the Dáil, by Friday. There may be a difficulty about that, but I would ask for the special consideration of the Seanad owing to the circumstances of the time. Apart from a small number of Bills those measures will be non-contentious. It was our hope to have the election by the 20th of August. That has not been possible, and I am sure it is unnecessary to say anything here in the Seanad about the advisability of having an Election at the earliest possible moment. Most of the business people and quite a number of other. sections are satisfied that the sooner we approach stabilised conditions the better. That is in essence what I have got to say, and it is to explain the reason for this big congestion of legislation. The Dáil has sat almost continuously for eleven months. It has been kept on the quick march the whole time. Apart from that time there has been a great deal of work in connection with the setting up of the Saorstát. I am sure when we ask for the indulgence of the Seanad in the circumstances a good deal of the objections urged towards such a list of measures will be restricted as we are so much pushed ourselves.

We should endeavour to finish the Committee stage this evening.

I desire to support the suggestion of Senator Douglas. We should try to get through the Committee Stage to-night.

I move that we sit until 8 o'clock and then adjourn until to-morrow. No matter how optimistic we may be, I do not think we could get through the Committee Stage to-night. The people most anxious to sit on are those who believe in going out and refreshing themselves. They tell those who have been watching the business here to sit on ad infinitum. It is a farce to call this legislation—to rush business of this kind, and tell us that we have to get through it in order that we may have an election. The only alternative to considering those Bills properly is to pass them without considering them at all. The overwhelming majority of the Senators can be in the smoke-room and elsewhere, and they merely come in here to record their votes. That is not legislation.

Nothing can be gained by coercion. Let us get through the business quietly and reasonably, and we will work much more quickly.

AN CATHAOIRLEACH

Whatever we may decide, let us not interfere with the arrangement by which the Committee Stage of the Land Bill is to be taken to-morrow. If we cannot complete the Committee Stage of this Bill to-night, it will stand over till Wednesday.

We should endeavour to finish the Committee Stage to-night. Senator O'Farrell referred to the rushing of business. There has been nothing more farcical than the attitude of the Labour Party and the calls for divisions.

The contribution of some Senators to the business here was merely "tá" or "níl."

I second the proposal of Senator O'Farrell that we adjourn at 8 to-night and resume to-morrow morning.

Amendment put. On a show of hands the amendment was declared negatived.

I am sorry, but as a protest against this treatment I shall have to ask for a division.

AN CATHAOIRLEACH

Under the Standing Orders I have power to reject any amendment if it seems to me to be put forward for the purposes of obstruction. I did not believe for a moment that your amendment was moved in that spirit. I am rather doubtful now that I should not have done so in view of the fact that you challenge a division despite the show of hands.

I regret you consider my amendment was moved for the purpose of obstruction. It was nothing of the kind. The same thing has been done in the Dáil under exactly similar circumstances, and it has not been questioned.

AN CATHAOIRLEACH

That is not for me.

I challenge a division on the ground that we are not legislating but are simply rushing measures and are not given a shadow of a chance to consider them. Those who rush the business take no part in the discussions at all.

AN CATHAOIRLEACH

I am afraid that has happened in other places.

The Seanad divided: Tá, 6; Níl, 16.

  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas MacPartlin.
  • Colonel Maurice Moore, C.B.
  • John T. O'Farrell.

Níl

  • James Green Douglas.
  • William Barrington.
  • Thomas Westropp Bennett.
  • John C. Counihan.
  • Elen Odette, Dowager Countess of Desart.
  • Mrs. Alice Stopford Green.
  • Sir Nugent Talbot Everard, Bart.
  • Edward MacEvoy.
  • Henry Seymour Guinness.
  • Right Hon. Andrew Jameson, D.L.
  • Thomas Linehan.
  • John McLoughlin.
  • James Moran.
  • James J. Parkinson.
  • Mrs. Jane Wyse Power.
  • Edward MacLysaght.
Amendment declared lost.

As a further amendment I move that we continue without any adjournment.

I beg to second.

AN CATHAOIRLEACH

In view of the dignity of the Seanad and the excellent way in which we have carried on our debates until now, I think we ought to arrive at some conclusion that will prevent the Seanad being exposed to ridicule in the public mind. I appeal to every section of the Seanad to treasure the dignity of the House. I believe we are going to imperil our dignity and position by such discussions and dissensions as we are embarking on now. From one point of view everyone recognizes that the Labour Party in the Seanad are fighting for a principle. It is open to them to consider now whether they have not asserted it, or whether there would be any doubt in the public mind what is their position in the future as to the attitude they have taken up to-day, or whether it is consistent with the dignity of the Seanad whether they could maintain that any longer. That is for them and not for me to decide.

I entirely agree that the dignity of the Seanad should be kept in mind, and I am not anxious to fight out this thing at all, but——

AN CATHAOIRLEACH

I would rather, if possible, this should be discussed quietly amongst the Senators without debating it any further.

There is a fair amount of agreement to continue until 8.30.

We have no alternative but to make up our minds to accept that.

As a matter of general courtesy, when there is an agreed arrangement all sections should be consulted.

AN CATHAOIRLEACH

We are getting a little bit too touchy. I think we ought to be able to come to some solution about this. Shall we adjourn until 8.30?

Agreed.

The Seanad adjourned at 7.45 p.m., and resumed at 8.30 p.m.

SECTION 5.

(1) Any person found guilty on indictment of any of the offences mentioned in Part I. of the Schedule to this Act may be sentenced to suffer death or penal servitude for any term not less than three years.

(2) Every person convicted by a Court of summary jurisdiction of any of the offences mentioned in Part II. of the Schedule to this Act shall be sentenced to suffer imprisonment with or without hard labour for the term of twelve months, and may in addition be sentenced to pay a fine of fifty pounds and, in default of payment of such fine within one month after conviction, to suffer imprisonment without hard labour for a further term of six months to be added to and commence on the expiration of the said term of twelve months.

(3) Every person found guilty on indictment of any of the offences mentioned in Part II. of the Schedule to this Act shall be sentenced either—

(a) to suffer penal servitude for a term of three years and to pay a fine of not more than one hundred pounds nor less than fifty pounds and, in default of payment of such fine within one month after sentence, to suffer penal servitude for a further term of one year to be added to and commence on the expiration of the said term of three years; or

(b) to suffer imprisonment with hard labour for a term of not more than two years nor less than one year and to pay a fine of not more than one hundred pounds nor less than fifty pounds and, in default of payment of such fine within one month after sentence, to suffer imprisonment without hard labour for a further term of six months to be added to and commence on the expiration of the first mentioned term of imprisonment.

(4) Every male person who shall be found guilty on indictment of the offence of robbery under arms as defined at No. 6 in Part II. of the Schedule to this Act, or of the offence of arson as defined at No. 7 in Part II. of the said Schedule shall (unless the Court is satisfied that there are special circumstances in the case which constitute a mitigation of the offence, or is of opinion that, owing to the state of health or advanced age of such person, corporal punishment could not be inflicted on him without permanent injury to his health), in addition to the punishment prescribed in the foregoing sub-sections, be sentenced to be once privately whipped subject to the following provisions:—

(a) in the case of a person whose age does not exceed eighteen years, the number of strokes at such whipping shall not exceed twenty, and the instrument used shall be a birch rod;

(b) in the case of any other person, the number of strokes at such whipping shall not exceed twenty-five;

(c) in each case the court in its sentence shall specify the number of strokes to be inflicted and the instrument to be used;

(d) such whipping shall not take place after the expiration of six months from the passing of the sentence;

(e) such whipping to be inflicted on any person sentenced to penal servitude shall be inflicted on him before he is removed to a convict prison with a view to his undergoing his sentence of penal servitude.

(5) The jurisdiction of a court of summary jurisdiction in respect of any of the offences mentioned in Part II. of the Schedule to this Act shall not be ousted by reason of the title to any corporeal or incorporeal hereditaments or any lands or premises being drawn into question.

(6) This Section shall not apply to any offence committed before the passing of this Act.

I beg to move: Section 5, sub-section (1): "To delete in line 23 the words ‘death or.'" I put down this amendment for two reasons. In the first place I am one of those persons who is totally opposed to capital punishment. I recognise that this is not the time or place to go in any detail into the merits or demerits of capital punishment, except to say that I have always held and believed that to send a man to his Maker without any possibility of redress or rectifying an error is an enormous responsibility for the State to take. When a man takes up arms against the State he takes his risks, but when he has been caught and when, as it were, in cold blood he is tried, I think the State makes a serious mistake in executing him. I could go at great length into the reasons why I am opposed to capital punishment, but I do not propose to do so. In the main, my reasons are that I have a great belief in the possibility of the spiritual reclamation of any man.

My main reason for putting down the amendment is this: It has been suggested that it is the intention of the Authorities, if the Bill is passed, to try a number of persons at present held and to execute a number of them. I feel it would be a very good thing if the Minister could give an assurance, unless there is an actual state of warfare again in the country, that that is not the intention. Personally I feel that it is a mistake, except in very grave circumstances, even if one admits the right of capital punishment, to execute persons taken for political offences. We all must know that in many cases persons who have been sentenced to death for political offences and afterwards reprieved, have become some of the very best and noblest citizens in the country. Although we may not anticipate that at present with those whom we may be dealing with, at the same time there is always a possibility. In the main I put the amendment down not to press it, but in the hope that there might be some kind of assurance from the Government as to the suggestions made outside.

I have nothing but respect and sympathy for Senator Douglas's outlook on the question of capital punishment, and I feel that if the world, or even the country, were composed of citizens like Senator Douglas, that it might be possible to adopt that view. But the fact is that it is far from being the case, and I am not aware that any State has found itself able to dispense with capital punishment for treason. One could talk at length on the abstract side of the thing, taking the view that no man should be hurled into eternity without any chance of being reformed or reclaimed and so on.

It is simply a question, that those on whom responsibility lies of saving the State, and saving society within the State, are compelled to resort to the extreme penalty in certain cases. As to any retrospective intention in this Bill, I want to make this perfectly clear. There has been a good deal of ill-informed, loose criticism about this Bill, as about other Bills, and it has been mooted that we propose to turn round on men who have robbed or burned within the last year, and apply the penalties of this Bill to them. That is far from being the case, but every robber, every prospective robber, and prospective arsoneer in the country may expect the penalties of this Bill. The penalties under this Bill will not apply to any person except for an offence committed after the date of the passing of the Bill.

I do readily give the undertaking which Senator Douglas has asked for, that with regard to these penalties for offences mentioned in Part I. of the Schedule of this Bill it is not proposed to go back now and deal with anything that has passed up to date. There is no such intention. The whole outlook of the Bill is simply to meet a possible future situation, rather than deal with an actual past situation. We share the pious hopes expressed here and elsewhere that things will continue to improve, and that in a couple of months everything will be lovely in the Irish garden. There ought to be no one more pleased, and none more relieved, if that turns out to be the case, than we who are members of the Executive Council. At the same time it is our business as prudent, responsible men, with a duty to the people of the country, to face the fact that something quite different is possible. If it is even possible, it is our duty to provide against it, and to see that the Executive returned after the coming Election does not find itself hampered or fettered for want of full power to deal with such a situation. It is in that spirit this Bill is framed. We all hope that people will come to their senses and realise that no political creed, and no political formula justify them in garrotting the nation. If people do attempt to garrotte the Nation—and mind you it is the Nation rather than the fabric of the State, that this onslaught has been upon—then those on whom the primary responsibility rests for dealing with the situation ought to have very full and comprehensive powers, and ought not to be fettered in any detail, in dealing with that situation by any lack of powers delegated to them by representatives of the people.

I am very glad there seems to be general agreement on both sides of the Seanad on this question of the death penalty. I happen to have practically the same amendment down as Senator Douglas, and for that reason I have every hope that the Seanad will carry this amendment. Regarding executions in the past in this country, every one is aware that the country has been sickened with executions, and to my mind it is very doubtful if the death penalty is efficacious in preventing crime in any country. In this country we know that during the last seven centuries the people who tried to govern it always tried that punishment, and we know that is was not always successful. I think that every offence which this death penalty is intended to apply could be dealt with by the ordinary Courts with the ordinary law. That would have been preferable to passing a special Bill which is bound to be regarded by a number of people as a measure inspired by political animosity and a vindictive desire to get rid of obnoxious Republicans. If it were true that we could obtain or have obtained peace and order in this country the best way to attain it to my mind is by having a certain amount of clemency and good-will in our legislation rather than advocate the shedding of more blood in this unfortunate country.

May I quote to my fellow-citizens the answer given by an old French philosopher in the last century to people who asked him to support a Bill for the suppression of capital punishment? His answer was "let the gentlemen who commit the crimes set the example." There is nothing in this Bill to compel anyone to commit crimes which it wishes to punish; if the gentlemen who hold up banks, burn our houses, and commit other heinous crimes abstain from doing anything of this nature, not even the most hardhearted Executive can inflict any of the punishments here meted out to those who do so. If we agree that that class of crime is an unmitigated evil, what right have we to handicap the Government by vetoing the means which they consider to be the quickest in putting an end to that evil? Surely our common sense and our duty both suggest that we should give them the power they are asking for, as it is in the hands of the criminals themselves to make these penal clauses nugatory by not giving the Executive an excuse for putting them into action.

I should be glad to have leave to withdraw my amendment in view of the Minister's statement. I feel strongly about capital punishment. I recognise certain circumstances, and I will withdraw the motion rather than have it turned down. If I am spared, I hope when peace and order come to bring in a Bill to abolish capital punishment. In view of the last speech I should say that I have not opposed capital punishment on grounds that people do not deserve it. I think it is quite conceivable that in many cases they deserve much worse if they were to get their deserts. My desire is to find out some thing which will not be an eye for an eye, and a tooth for a tooth, but which shall give a person punished a chance of becoming a decent citizen and which shall protect the community. I am against capital punishment, because I believe it is not possible to make a man a decent citizen by sentencing him to death and hoping he will be alright in two or three weeks' time. It is because I believe that punishment should be in the direction of saving the man as well as saving the community that I am opposed to capital punishment on principle.

I am responsible, I think, as well as Senator Douglas for this amendment.

AN CATHAOIRLEACH

You have an amendment in the same terms, and if he withdraws his you are entitled to propose yours.

I cannot withdraw mine.

AN CATHAOIRLEACH

The motion is that Senator Douglas's amendment be withdrawn by leave.

Question put and agreed to.

I wish my amendment to be put.

Amendment to delete the words in line 23, Section 5, Sub-section (1) "death or," put.
The Seanad divided: Tá, 8; Níl, 17.

  • James Green Douglas.
  • William Cummins.
  • Michael Duffy.
  • Thomas Farren.
  • Edward Mac Lysaght.
  • Thomas Mac Partlin.
  • Col. Maurice Moore.
  • John Thomas O'Farrell.

Níl

  • Thomas Westropp Bennett.
  • Dowager Countess of Desart.
  • Sir Nugent Talbot Everard.
  • Rt. Hon. the Earl of Granard.
  • Mrs. Alice Stopford Green.
  • Henry Seymour Guinness.
  • Cornelius Joseph Irwin.
  • Rt. Hon. Andrew Jameson.
  • The Earl of Kerry.
  • Thomas Linehan.
  • Edward MacEvoy.
  • John MacLoughlin.
  • The Earl of Mayo.
  • James Moran.
  • James J. Parkinson.
  • Col. Sir William Hutcheson Poe.
  • Mrs. Jane Wyse Power.
Amendment declared lost.

I propose: To insert "not more" instead of "not less" in sub-section (1), line 24. I object in this case to give sentence not less than so and so. I think that is a very improper thing. I think these matters should be left to the discretion of the Judges. All sorts of exceptional circumstances arise which ought to be decided by the Judge and not by somebody else who knows nothing about it.

I would like to support this amendment. In all existing legislation I think the general practice has been to fix a maximum and not a minimum penalty. In this case we have the reverse. A person may be found guilty of any offences in the first part of the Schedule. Everyone will agree that there are varying degrees of guilt. The minimum penalty the Judge imposes in every case is three years' penal servitude. He must inflict that or discharge the man. Why it is considered necessary to tie down a man in that way is not apparent. Surely the Judge should be able to assess any penalty. Is it alleged that the Judges are supposed to be too lenient? I do not think that is our experience of the Judges of this country in the past. It is certainly showing a lack of confidence in their strength to punish crimes of this character, and whatever else they may be lacking in I think from past experience they are not disposed to treat people found guilty of crimes of this character very leniently. Apart from that the fact that it is a reversal of all previous law is another reason.

Precisely what I anticipated is happening in connection with the penalties of this Bill. When we were going over the Bill in the Executive Council the unanimous desire was to keep the penalties down to a minimum, and I felt at the time when the Bill came before the Dáil and Seanad that a very determined attempt would be made to convert that minimum into a maximum. Sub-section (1) of Section 5 deals with the offence "an armed revolt against the Government of Saorstát Eireann threatening, coercing, destroying, damaging or removing, or attempting to destroy, damage or remove any property in furtherance of such a revolt." Inside two months the Government of Saorstát Eireann will consist of persons elected by the Dáil, and that Dáil will be elected on an adult franchise of the population of this country. I ask any reasonable citizen who hopes for stability here, whether that penalty is excessive for that offence.

Men can go out to their fellow-countrymen and expound any mad or sane doctrine, and convince their fellow-citizens to that view, get the seal of the people's endorsement for whatever policy they wish to prosecute. But for men who abandon all attempts to settle the minds of their fellow-citizens, who set out to coerce their bodies or bring coercion to them by the destruction of what they hold most dear—their household gods— through intimidation of their wives and families, is three years an excessive penalty? Is it an excessive penalty for those who try to garrotte the nation and force their fellow-countrymen into their will? That penalty was a minimum penalty which men with a sense of their duty could attach to that crime. A comment was made that whereas it is usual in legislation to name the maximum that we named the minimum. We did that, not out of a desire to set down a harsh or vindictive penalty, but to set down the minimum penalty that would commend itself to a man with any proper conception of the insolence of the crime. I am surprised at the quarter this came from. Truly the essence of democracy is the fact that every man should have an equal voice in deciding the affairs of the community, and yet we are asked to say that in the case of men who go out with guns, torches or land mines to coerce their fellow citizens, three years' imprisonment is an excessive penalty. If the amendment were to be accepted here I would advise the other House to reject it.

It seems to me that where death may be the penalty for a particular crime, it is making light of an offence to say that the maximum penalty instead of death should be three years. It would be far better, if an amendment were required at all, that it should be the penalty of death or such less penalty as the court may decide. That I think would meet the case.

I entirely approve of what Sir Nugent Everard says. I would be prepared to accept that amendment. I think the Minister passes over what is really the objection to the clause that the Judge who may see the exceptional circumstances has no option whether he likes it or not, but to inflict the sentence. I do not at all question what the Minister says, that anybody going around and doing these things deserves three or five years penal servitude.

If I might intervene again it would be to say that Senators are losing sight of the fact that it is open to any Judge, having passed the particular sentence that is embodied in legislation, to make his recommendations afterwards. Judges do that as a matter of practice. In recent months Judges have passed sentence and have afterwards written to the Executive and stated they considered, that owing to the state of the country and for the sake of the effect upon the public mind, they should pass a particularly severe sentence. The Judge in such a case has said: "I want you to take a note of the fact that that sentence was passed more for its public effect than with the view that it should be served out to its last week or month as the case may be."

There is always that channel open to judges to make their recommendations. There is always room for the prerogative of mercy, and the prerogative of mercy is exercised constantly to a far greater extent than Deputies or Senators are aware of. Prisoners are brought before a Court. A judge, having regard to the general condition of the country and the general irresponsible outlook prevailing at the time, passes a particular sentence. Later on there is a petition for the prisoner and it is passed to the judge or magistrate for his comments. It is open to the judge, if such a particular case as Colonel Moore suggests comes before him, to pass his legal sentence and to make his recommendation to the Executive. That is done every day, and it will be done to the end of the chapter, and it is an aspect of affairs that the Senators ought not to lose sight of.

I submit that that is making the Minister the judge. Why should that principle be adopted here of fixing the minimum any more than in the case of any other offender? When the Minister talks of the enormity of the offences enumerated in the first part of the Schedule we are at a terrible disadvantage. When we make any opposition to this Bill we are accused of favouring this thing.

I have never made that suggestion.

Such accusations have been made, and that is not conducive to getting all the good possible out of the Bill, at the finish. The position the judges will be in, will be that they must pass this sentence although they know that it would be unfair. There may be cases notwithstanding the enormity of the crime, that would make it an excessive sentence, but they must pass that sentence and constitute the Minister the judge. It is not fair to the Minister because, if he is to go into the decision he must have to review all the evidence himself, and that will be a duty that will lead to unnecessary labour. The suggestion of Sir Nugent Everard is an improvement undoubtedly upon it. It emphasises the enormity of the crime far more emphatically than this does, because it names death as a penalty, but leaves it to the judge to inflict a lesser penalty. For these reasons I do not know why the Minister would not accept it.

There are a number of amendments which it is almost inevitable should be discussed together and it would save time. I think the Minister's own speech to some extent shows the difficulty that is in our minds in this matter. The suggestion that a judge gives a severe sentence in order that it should be a deterrent has been made. That to some extent is an argument as to why there should be a discretionary power in the judge. I can conceive quite a number of cases in which the offences in the Schedule will be committed and in which the punishment is not by any means sufficient, and I can conceive of other cases in which the punishment might be decidedly one in which the judge or jury could not possibly approve of the sentence.

I think the mistake which the Government is making in this particular case is that they have decided on a long list of offences which are not at all equal, and which, according to different circumstances, might not be equal, yet they have a rule of thumb set of punishments which must be inflicted by the judge. I have consulted lawyers and some have spoken to me, and they all say that is an extremely unwise principle of legislation to introduce and one to which they are opposed. I know of several cases where the very speech of the judge gave an impression that he was prepared to deal leniently with the particular prisoner who was charged. I remember in one particular case where I felt on the evidence that a girl was not guilty; together with one or two other jurors I was extremely unwilling to find her guilty, but very reluctantly we brought in a verdict with a recommendation to mercy. The judge said that the impression we had formed was confirmed by the evidence as to character.

I recognise that if you insist on having an absolute rule of thumb you will have a certain reluctance to convict, if they feel that the judge has no option whatsoever in the sentence. Consequently I think it would have the effect of weakening the power of the judge in dealing effectively with the evidence. One or two cases mentioned in Part 2 of the Schedule provides a penalty for injury to property of any kind. That means that if a boy deliberately breaks a window he must if brought forward and if convicted be sentenced to one year or a year and a half. I have no doubt that in such cases there would be a reprieve.

It is not fair to the Minister himself nor is it a wise thing that offences of that kind should be included. In another portion of the Bill there is reference to a person aiding or abetting the escape of a prisoner. It does not say whether it is to be done knowingly or unknowingly. A person might come to my house and spend the night there. That kind of thing actually did happen during recent events in the country. That person might commit offences which I would know nothing of and yet the judge, even if he were satisfied that I knew nothing about it, would have no option.

The Minister to whom an appeal would be made for a reprieve would no doubt act as justly as he could, but I suggest it is the judge who has heard the whole of the case is the best judge, and it is not fair to the Minister who gets the recommendation to have to decide matters of this kind. I would urge the Minister carefully to consider between this and the Report Stage as to whether an alteration might not be made. I would be in favour of having the punishment heavier. I would not altogether favour the death penalty, but a very much stronger punishment ought to be possible. Some offences are exceptionally serious in view of the present condition of Ireland. The set of punishments indicated in the Bill are in some respects too moderate and in others too extreme. There should be no rule of thumb punishments. Circumstances would tend to make certain cases extremely serious and others not nearly so serious.

One would think we were discussing a Bill in normal times that was to settle the law for a long time. This is an emergency measure to deal with the aftermath of a revolution, and for abnormal punishments, abnormal powers are required.

In the circumstances I desire to withdraw my amendment.

Amendment, by leave, withdrawn.

I move: That after the word "death" the words "or such less penalty as the judge shall decide," be inserted. Those are words from the Army code of regulations.

Perhaps the Senator might agree to substitute the words "or such term of penal servitude as the judge may decide."

I am quite agreeable.

Amendment, as altered, agreed to.

I beg to move: In Section 5, Sub-section (2) to delete the word "shall" in line 27, and substitute therefor the word "may." In the other amendment the main principle was argued but if it were at all possible, consistent with the amendment carried, for the Minister to make it "may" and increase the penalties very considerably, it would meet my point.

On the general principle underlying this Bill, I would like to say a few words. The Section we are dealing with introduces into the law two principles which were never known in it before. One is a mandatory principle, and the other is a flat rate punishment. If we are clear in our idea about this fundamental question, it will make all the later amendments more simple. Under the mandatory system the District Justice or the Judges are placed in a dependent position.

This amendment is to Sub-Section 2. There is a similar one later.

AN CATHAOIRLEACH

Yes, it is to Sub-Section 2. You are quite in order then.

The mandatory system is justified by the Government on the plea that in the dangerous state of the country the Executive Council should take the responsibility on themselves of assigning a definite penalty and not leave it simply to what the President described as such "accidental circumstances as the outlook of a Magistrate here and a Magistrate there to decide." There is something, according to the Minister, "haphazard and casual and fortuitous in that." If in any case the Judge or Magistrate under these definite orders, after having carried out the law by passing the sentence, should think it would be right to make representations to the Executive of mitigating circumstances, no doubt, Ministers think, he would do so. Is there nothing haphazard and casual and fortuitous in that? Is there nothing that implies a danger deeper to the country than a fortuitous error of a magistrate in open court, under public criticism? Are judges limited in authority under a severe State control likely to make many “representations” to their masters of cases where the rules imposed on them have failed in the execution of exact justice? For the next six months the mandatory system in fact appoints that it is with the Minister, not with the Judge, that lies the punishment of crime. I urge that so far as the nation consents to weaken the responsibility of Judges and Magistrates, it lowers their virtue. If it continues to throw on them the highest public duties, it gives to the weakest the strength of the strongest. The mandatory system is not only likely, but certain, to degrade the whole judicial order and ordinary law in the public mind—an evil that will last long beyond the six months of this Bill.

The further defence of the Minister does not help us. It is his sincere and courageous statement that the Executive in the present peril take on themselves the full responsibility for mandatory law. The fact, however, is that no such statement can relieve us of our duty. We have our own responsibility for giving Government such powers. The answer may be—"it is only for six months." But if the real protection of the citizen, the independence of the law as against the State, is once broken, who will repair it, and how? And if confidence of the people in Irish law is shattered at the outset, who will create that faith, and how? If the Minister feels and courageously uses his own responsibility, so we must consider our own problem. On the one side we may weave a net that shall catch every atrocious malefactor in the next six perilous months; for the enactment evidently contemplates the capture of a multitude of criminals and their swift condemnation. On the other side we can thus in this critical moment lower the non-political authority of law, and fashion it into a tool of this State, degrade its dignity, and once more make it the object of popular distrust, or even presently of contempt. Our responsibility is as great as that of the Minister. Where he sees danger ahead if we do not accept his mandate—we have on our part rightly to measure his demands and balance them against other dangers deeper and more persistent which might follow any lack in us of foresight and responsibility.

Besides the mandatory system, there is a second question of justice at issue in this question—the flat rate of punishments decreed. A schedule of crimes is set out, three in Part I, and other twelve in Part II., with a brief code of punishment for the lot. The debate in the Dáil shows how this scheme affects legal opinion. The Minister in fact undertook to consider carefully the possibility of discriminating between the last five and the first seven of these twelve offences thrown into the one bag. But no change has been made in the Bill as before us, and no may has been permitted as regards the last five offences instead of shall. Mandatory law, if we can call it law remains in possession.

The flat rate is defended by the Minister on the ground that it is not as high as it might be. It is not the question of high or low that is troubling some of us. It is rather the degradation of law. Till now law has had to laymen a dignity based on reason, on inherited learning and a great tradition. Instead of this we now find statesmen taking the maximum penalty of greater crimes, and "merging" it, as they say, with the minimum penalty for other offences, or in their words "whatever we believed was the minimum penalty that should be imposed by anyone with a proper sense of the gravity”—that is to say a sense of the present peril of the coutry. Maximum and minimum combined make up the flat rate. The fruitless discussion of this question in the Dáil shows at least how grave may be the reaction of public opinion to such a doctrine during the next six months. The flat rate is not a problem that requires a legal mind. It lies within the view of any plain believer in accustomed justice.

To sum up—these enactments of flat rates and mandatory sentences look as if the Executive could not trust the Judges by themselves to deal out justice. And if their own makers do not trust them, how shall the people have faith? Will any group here maintain that the calamity of temporary looters is so great as to drive us back on one final misfortune a remedy—the defiance of our whole legal system by flat rates and mandatory punishments. The amendments I have suggested in this Section have been entirely with regard to this desire to free the law from mandatory orders and from flat rates.

This is the usual discussion which always occurs wherever I have been before between the words "may" and "shall." I notice that further on in this Sub-section (2) the word "may" is used—"and may in addition be sentenced to pay a fine of fifty pounds." It also reads: "every person convicted by a court of summary jurisdiction of any offence mentioned"— we all know what the offences are—shall be sentenced to a certain imprisonment. "May be sentenced" is suggested. There is a "may" further on in the Section, and I cannot see from a commonsense point of view what this meticulous argument really means between the words "may" and "shall." Reading it as plain English, there is really no very great difference.

I have always understood that in Parliament phraseology "may" does mean "shall." Perhaps you can guide us in that respect.

AN CATHAOIRLEACH

I certainly never heard that startling proposition. There can be no doubt what the Section here means, because the whole policy of the Minister is made quite plain. It is perfectly plain that "shall" in the first part of the Sub-section (2) means that that is the penalty and no other penalty, and that it shall be and must be imposed by the Magistrate if he finds the person guilty. But he may, in addition—he is not bound —order a fine of £50. That is discretionary but the sentence of twelve months is mandatory, and he has no discretion over that.

I would like to put a position before the Seanad which might soften the heart of the Minister. In the Schedule there is an offence, number 12, "aiding, abetting and encouraging the commission of any of the offences mentioned in this Schedule, or helping in the concealment or escape of any person guilty of any such offence." A mother may have a son or a daughter who may be charged with an offence of this kind. Are you going to say to a magistrate that he shall send the mother of such a boy or a girl to jail for twelve months? Is there any mother that would not shield her son? You are going to compel a magistrate to send such a mother to jail for twelve months, and in addition she may be fined £50 for giving shelter to her son.

I remember in December, 1920, with two of my colleagues here, Senators MacPartlin and O'Farrell, being present at a Labour Party conference in London for the purpose of considering the awful conditions prevailing in this country at the time. We endeavoured to impress upon the representatives of the labour movement in England the horrible state of affairs existing here and the manner in which the people were being treated by the Government. We pointed out that an Irish mother could be sent to jail for harbouring her son. Sir Hamar Greenwood had passed a Bill known as the Restoration of Order Bill, in which a proviso was inserted that a mother could be sent to jail for harbouring her son. Surely we are not to follow the very bad example that was set us then. It is clear from this Bill that if a boy or a girl is concealed by a mother in her house, and if she is arrested for that the magistrate must send that mother to jail for twelve months. Surely we are not going to be guilty of such a crime as that at this stage of our history. I agree whole-heartedly with those who have spoken against making it mandatory for a magistrate to inflict this sentence. There must be a certain amount of discretion allowed to Judges, otherwise there is no necessity for having Judges at all. Judges are appointed because of their great knowledge of the law. They are placed in a most responsible position, and they are supposed to use discretion in making the punishment fit the crime. If in this Bill we lay down the penalties to be inflicted, then there is no necessity to bring them before a Magistrate at all.

I only want to say that Senator Farren knows well that under the law as it stands people may be sent to jail for compounding a felony, and that mothers are not excepted. Senator Farren also knows very well that the fixing of minimum penalties is not uncommon. This whole Bill must be taken in its setting, must be considered in perspective. Certain definite offences are menacing the life and the future of this country, are menacing stability here. Stability must come if we are to solve the problems that loom big and black ahead for us, and if we are to solve the social problems that confront us frowningly, such problems as unemployment and housing. If this State is to rest safe and solid on its foundations, the particular offences set out in the Schedule must be grappled with, and brought to a standstill. If we have taken certain offences and classified them in Part 2 of the Schedule, they are simply offences that reports from all over the country show are the ones that most menace peace, and most menace the future of this country. You cannot take one out of the context and analyse it and turn it over and say "Is that worth twelve months' imprisonment."

We have to take each item in the picture, and there is no use in Deputies or Senators talking about the harmless little bottle of poteen for which 12 months i to be given. You have to consider what part poteen is playing in the national life at the moment and what its re-actions are likely to be on the national life. I simply take that as one example of the fact that things must be considered in their setting and in their perspective. The six months to come are a vital six months for Ireland's future. I am not ashamed, despite Senator Mrs. Green's dissertation on the evils of a flat rate, of saying, after having considered reports from officials throughout the country, that there is no one of these offences more seriously menacing the life of the nation than another. So far as Ireland and her future goes it is equally necessary that each one of these offences in the Schedule of the Bill be stopped and stopped quickly. Senators will get into an atmosphere where they are inclined to consider this Bill and its provisions in a rather abstract and academic sense. Let us at any rate be realists, and let us face the fact that this country's books are unbalanced and must remain unbalanced when there is no atmosphere where men will indulge in that commercial enterprise which is necessary, if the country is to live and drain up unemployment.

Men will not sow here for fear they will not reap, and that is because the whole condition of the country is one of indiscipline, one of looseness, one of lawlessness, and these crimes set out in the Schedule must be stopped within the next six months, if there is to be a decent future for this country. Is it too much to say that we here, the Parliament, the highest Court in the land, should decide that the penalties for particular offences for six months to come shall be so and so? You say no role is left to the judge. It is left to the judge to decide the law; the question of guilt or no guilt on indictment, is left to the jury. We have a responsibility, more than the responsibility in each individual case. We have a responsibility to all the people, to society here, to the decent law-abiding people who live in the country, and we are entitled to say that particular offences must be stopped and particular offences in their present setting and perspective loom so large and so black that we are entitled to attach particular penalties to them.

I would like to point out that the Minister has in no way answered the point raised by Senator Douglas. When answering Senator Farren he stated that a mother may be convicted for compounding felony, thereby missing the whole point, because in the common law she "may" be, whereas the word we feel so strongly about now is the word "shall."

I agree with Senator MacLysaght that the Minister has not met the real point but has treated us to a dissertation on the enormity of these crimes. He is simply preaching to the converted. We all agree with his contention that there must be settled conditions of law and order. The only difference we have is as to the method. In this particular case the particular objection is that stated by Mrs. Green, making the judges and District Justices the creatures of the Ministers and taking away their independence and making them dependent on Ministers. Surely the Government must have confidence in their judges and District Justices to do justice in these cases as otherwise we could not carry on at all. To adopt this mandatory system is equivalent to passing a vote of non-confidence in the whole judicature of the country. That is calculated to create a lack of confidence.

The Judge is the person who gets the real atmosphere of the case. He has the whole case before him, and he should be allowed to decide for himself, up to a certain limit, if necessary, as to what the penalty shall be, otherwise the statements of the Minister are unnecessary. We know that a very bad state of affairs has existed and that all is not well in the garden as he pleases to put it; but that is no reason why we should stamp out all principles of justice which prevail in every civilised land. We are told that these are only temporary provisions. They will, however, have permanent effects. They are likely to be extended from one period to another. They destroy the whole essence of the administration of justice in the country. It is deplorable, because of what has happened in the past, that we should start on our career with a measure like this. The great difficulty in the past was that of catching the culprit. It was not because the punishment was not sufficiently severe, but because there was no way of bringing the culprit to justice. That has now come to an end. No matter what penalty you inflict, unless you are able to bring him to justice it is useless. It is on the basis that we have no police or courts functioning this Bill has been conceived.

With regard to the substitution of the word "may" for "shall" I consider that the word "shall" is the proper word.

I should like to say that the point between us is not a matter of the enormity of the offences nor the determination that these offences must be put down, but that the discretionary powers of the Judge would be far more effective than fixing a flat rate punishment.

I oppose the amendment as I cannot see why a mandate should not be given to the Executive for six months. You are not upsetting the judiciary system, or trial by jury.

AN CATHAOIRLEACH

In putting this amendment I want the Seanad to understand that it is confined to Sub-Section (2) Section 5, which deals with cases of summary jurisdiction and not with cases tried by juries on indictment.

Amendment put. On a show of hands the Chairman declared the Amendment carried.
The Seanad divided: Tá, 12 12; Níl, 12.

  • James Green Douglas.
  • William Cummins.
  • Michael Duffy.
  • Sir Nugent Talbot Everard, Bart.
  • Thomas Farren.
  • Mrs. Alice Stopford Green.
  • Edward MacEvoy.
  • Edward MacLysaght.
  • Thomas MacPartlin.
  • Colonel Maurice Moore, C.B.
  • John Thomas O'Farrell.
  • Col. Sir Wm. Hutcheson Poë, Bart., K.C.B.

Níl

  • William Barrington.
  • Thomas Westropp Bennett.
  • Ellen Odette, Dowager Countess of Desart.
  • Henry Seymour Guinness.
  • Cornelius Joseph Irwin.
  • Right Hon. Andrew Jameson, D.L.
  • Thomas Linehan.
  • James MacKean.
  • John McLoughlin.
  • Earl of Mayo, K.P.
  • James Moran.
  • Mrs. Jane Wyse Power.
Amendment declared carried.

AN CATHAOIRLEACH

As the decision has resulted in a tie, I give my casting vote in favour of the amendment.

I move "In Section 5, Sub-section 2 to delete the word "of" in line 29 and to substitute the words therefor "not exceeding."

I accept this amendment.

Amendment agreed to.

I intended to propose in Section 5, Sub-section (2) to delete in line 33 the words "the said term of twelve months and to substitute therefor the first mentioned term of imprisonment." I propose to withdraw that amendment, and bring it up on report. There is some confusion owing to several members bringing in similar amendments.

Amendment, by leave, withdrawn.

I beg to propose to delete in line 27 the word "shall" and to substitute therefor the word "may." The amendment is similar to the one which has been carried, with this exception that the argument for it in the case of a jury is somewhat stronger. I would like to add to the amendment an increase in the term of penal servitude to which the person may be sentenced from three years to a period of five years. I think if it is "may" it will leave a power of discretion to the judge. Certainly they should have the power to give a sentence of more than three years, which would be too short a sentence for most of the offences set out.

I think we will deal with the question of extending the term when we have dealt with the question of "may" or "shall." I consider it right that the Executive Council, and the Parliament of the Nation in the existing conditions should attach particular penalties and leave to the court the question of deciding the guilt or innocence, leaving also to the judge or magistrate making his recommendation to the Executive Council in particular cases scope for the prerogative of mercy. On this "may" and "shall" question, Senator Douglas dangles his bait of an extension of the term. I am not anxious for an extension. What we wanted was not a long but a swift sentence, a sentence which a prospective criminal would have in his mind's eye when setting out to commit a crime. I would prefer if the Seanad would leave over the question of any extension of the term of imprisonment and deal simply with the question as to whether it is right or not that the Parliament should take into consideration the existing conditions to affix a penalty or leave to the Courts of the land simply the duty of deciding guilt or innocence. When that has been decided the question of the extension of the term, if "may" is inserted, can be raised and then we will consider it.

Amendment put and agreed to.

I desire to move, as a further amendment to substitute in Section 5, Sub-section 3, paragraph (a) instead of “for a term of three years,” the words “for a term not exceeding five years.”

Amendment agreed to.

I desire to withdraw the following amendment, "Section 5, Sub-section 3, to insert after the word "of" in line 37 the words "not more than."

Amendment by leave withdrawn.

The amendment in my name reads as follows: "Section 5, Sub-section 3 to delete in lines 38 and 39 the words ‘nor less than Fifty Pounds.'" I think the Minister ought to accept that amendment. I am sure he has seen by this time how harshly it is calculated to act on the man who has not £100. The man who has the £100 can buy off the punishment due to him simply because he has the money, although his crime is every bit as bad as the crime of the man who has not the £100. I move the amendment.

Amendment put.
The Seanad divided: Tá, 12: Níl, 13.

  • William Cummins.
  • Michael Duffy.
  • Thomas Westropp Bennett.
  • Thomas Farren.
  • Cornelius Irwin.
  • Edward MacEvoy.
  • Thomas MacPartlin.
  • Colonel Maurice Moore.
  • John Thomas O'Farrell.
  • Edward MacLysaght.
  • Col. Sir Wm. Hutcheson Poë.
  • Mrs. Jane Wyse Power.

Níl

  • James Green Douglas.
  • William Barrington.
  • Ellen Cdette Dowager Countess of Desart.
  • Sir Nugent Talbot Everard.
  • Mrs. Alice Stopford Green.
  • Thomas Linehan.
  • Henry Seymour Guinness.
  • Rt. Hon. Andrew Jameson.
  • Sir John Keane.
  • James McKean.
  • John MacLoughlin.
  • Earl of Mayo.
  • James Moran.
Amendment declared lost.
Amendment: Section 5, sub-section (3). To delete in lines 42-3 the words "the said term of three years" and to substitute therefor the words "the said term of penal servitude"—(Senator Mrs. Green)—by leave withdrawn.

In view of what we have done already there is no sense now in the words "three years." We should have said "a term of imprisonment," so as not to have it making nonsense. I propose to substitute in line 42 for the words "at the expiration of the said term of three years" the words "expiration of the previous sentence."

Amendment agreed to.

I beg to move: "To delete in lines 38 and 39 the words ‘nor less than fifty pounds.'" The sense of the amendment has been pointed out already. It is not fair or just that a person who is in a position to pay a fine of £100 should be getting off with a sentence of six months less than the person who is not able to pay. It may be argued that the person who pays the fine will suffer financial loss. I respectfully suggest that there is no analogy as between a loss of £50 or £100 and suffering six months hard labour. It means that you are going to inflict the full penalty on the prisoner who will not be in a financial position to pay the money.

A fine of £10 on one man may be as severe as a fine of £100 on another. You have again the principle of fixing the absolute minimum. It is only reasonable that this amendment be carried. Take the case of two men committing a felony. One had previously held up a bank and has sufficient money in his pocket to pay the fine. He gets off the imprisonment. It is a case of again fixing the minimum instead of leaving it to the judge.

On a show of hands 11 voted for the amendment and 11 against. By the casting vote of An Cathaoirleach, the amendment was declared lost.

Will you accept a motion for the adjournment? It is obvious that we cannot get through the Bill to-night. We have been working for over 10 hours.

AN CATHAOIRLEACH

If we are not to adjourn now it is well that we ought all to know it. Therefore you ought to make up your minds to adjourn now or decide how long you are to go on. I will accept and put to the Seanad a motion if Seanator McLoughlin makes it.

I beg to move that we adjourn now until 11 o'clock to-morrow.

Would it be possible for us to give say one hour to-morrow to this Bill?

I would like to make the point that this Bill is urgent. The president announced to-day an intention to prorogue on Friday next. I do not know whether Senators view with equanimity the prospect of 12,000 or 13,000 prisoners being released indiscriminately on the country. As one with some responsibility it is a thing that I contemplate with no equanimity, and I think that if we are to adjourn the Committee Stage of the Bill it should be adjourned with the definite understanding that the Bill would become law within the week.

AN CATHAOIRLEACH

What adjournment do you suggest?

I do not know what the delay would have to be between the Committee Stage and the Final Stage, but it seems to me that an adjournment until Wednesday——

AN CATHAOIRLEACH

If the Seanad would come to any sort of an agreement that the remaining stages will be taken to-morrow at 11 o'clock, finishing at 12, we might give that hour to it.

I suggest, then, that we meet at 10.30.

AN CATHAOIRLEACH

If the thing is to be fought out on the same lines as to-day, if we started it again to-morrow we probably would deprive Senators of any opportunity of debating the Land Bill.

I do not see why we should be pressed. No one can say there has been any obstruction in the last couple of hours. I think this sort of bullying is very objectionable.

AN CATHAOIRLEACH

It has been proposed that the Seanad do now adjourn and resume to-morrow at 11 o'clock.

I would like to propose that we go on for another hour in view of the statements of the Minister.

AN CATHAOIRLEACH

The difficulty about that is that those who have to catch trains would have to stay here all night. I have no objection to sitting at 10 in the morning if that is the wish of the Seanad, and take this Bill from 10 o'clock to 12 o'clock. We could take the Land Bill at 12 o'clock.

Is it understood that this stage of the Bill is to be finished at 12 o'clock?

AN CATHAOIRLEACH

I was fishing for some such undertaking but I did not get it.

The Seanad adjourned at 10.35 p.m. until 10 o'clock on Tuesday morning.