The motion is: "That this Bill be read a second time."
PUBLIC SAFETY (POWERS OF ARREST AND DETENTION) TEMPORARY BILL, 1923.—SECOND STAGE.
AN CATHAOIRLEACH
Perhaps the most redeeming feature of this Bill is the fact that it is less ruthless than its predecessor, the Public Safety (Emergency Powers) Act, which can hardly be said to have justified the departure from civilised methods which the enactment of some of its provisions involved. I readily admit the necessity of special procedure to deal with an abnormal situation. It is in regard to the nature and extent of the departure from normal constitutional practices that I do not agree. It is true, unfortunately, that we are suffering from the aftermath of five or six years of strife. The armed robber still plies his trade with a certain amount of impunity, and, strange to say, his performances are almost invariably described in the public Press as "daring." Respect and reverence for the law are not so deeply rooted and widespread as one would desire. It is too true that the assassin of private citizens for private vengeance from time to time announces his existence by deeds of blood and violence. I suppose this is what might be expected as a result of the happenings of the last few years.
One of the most disturbing features of the situation is the large number of serious crimes that are attributed to those who are supposed to be the guardians and custodians of our public order and safety. It is only fair to say, in no single instance that I am aware of, has any member of the police forces been found wanting, and I only wish that the same could be said of the army. It is in this respect that one views with a good deal of anxiety the powers that are sought to be conferred on soldiers by this Bill. Section 2 lays it down that it shall be lawful for a responsible officer to arrest and detain in custody for any period not exceding one week any person committing or attempting to commit or who is suspected of committing or about to commit such crimes as mentioned in the Schedule. These are very serious powers to delegate to responsible officers.
In Section 8 we find a responsible officer described as an officer of the military forces of Saorstat Eireann not being below the rank of Commandant who may be empowered in any particular case by the Minister for Defence to delegate his powers to any member of a military force not below the rank of sergeant, etc. Now, this will mean that practically every soldier is going to have the powers of a policeman and the Commandant is not compelled under the Bill to produce any written authority for any arrest he may make or any entrance he may enforce for such arrest. In delegating his powers he is not compelled to do so in writing. In Section 8 every soldier is, in certain circumstances given the full powers of a police constable without a warrant, and he is not forced to show any written authority for any action he may presume to take. In these extraordinary circumstances how is the ordinary peaceful law-abiding citizen to say that a soldier is acting legally or is out on an expedition of his own? It would be different if there were sufficient confidence in the disciplined traditions and character of a long well-trained army to place such terrible powers in their hands, but is it fair to the army that this great responsibility should be placed upon it, and, in fact, place the individual citizen at the mercy of a private soldier? Even assuming that it had iron discipline behind it and that it had long years of training, and if we were in a country where social conditions are better than here, such powers as sought might not be safely entrusted to the army.
We have had more than one terrible example of the danger of allowing a soldier to make arrests without warrant and the danger of turning the soldier into a policeman. We have had cases of people taken from their homes by persons wearing uniforms and holding high rank and we were told by the friends of those people that they were not unduly anxious as they thought that the uniforms were a guarantee for the safety of the prisoners. Subsequent events showed how little faith could be placed on those on whom the integrity of the State so largely depends. I think that the almost unlimited powers given to military officers, even to private soldiers, are a very serious menace and one which no legislature should lightly delegate, particularly to the private soldier. We know that any amount of armed robberies have been traced to men wearing military uniform, yet the Bill throws open the door of every citizen's house to any soldier who may state that he is carrying out his duty under this Bill.
You need not ask him for his authority because the Bill does not provide any written authority. I believe that in every case the soldier should be accompanied by members of the Civic Guard or Dublin Metropolitan Police, and I realise the necessity for reinforcing the police by a military force, especially in cases where persons to be arrested are supposed to be armed, but surely that emergency could be met without giving every soldier a policeman's power.
Another serious point is that those arrests can be made on mere suspicion. It is not outside the wit of any officer to show that he has a reason to suspect a person of having committed some crime. As far as I can gather, if the person arrested is released within a week, the officer is not compelled to offer any explanation for having arrested that person. Certainly the Bill does not provide any redress for the person arrested in that way. One can visualise the amount of petty spleen that can be paid off, if military officers are unscrupulous enough to take advantage under the powers of this Bill.
Section 3 indicates the lack of any definite policy on the part of the Government in regard to political prisoners. Some months ago, many of us advocated the release of all political prisoners not put on trial. Our suggestion was announced as criminal and impossible. It was stated that the safety of the State depended on their continued detention. I could understand that policy if it were acted upon, but it has not been acted upon. The Government have released over nine-tenths of the prisoners, but they have done it in such a way as to neutralise any good results that might reasonably accrue from a general amnesty when the reign of violence had ceased, and when the military power of the irregulars had been definitely smashed, and their unpopularity was at its height. What is the object of keeping the remaining prisoners any longer, unless it is to inflict some more suffering on their dependents, the majority of whom had no responsibility for the misdeeds of the prisoners? We had a public statement attributed to the President to the effect that within the next few weeks the whole of the prisoners will be released. If that is to be the policy a few weeks hence, is there any good reason why it should not be the policy now? If there were any intention of placing these prisoners on trial, I could understand it. Many of the chief offenders were released, while the nonentities were retained.
If violence were to be resumed again, there are sufficient people at large, capable of creating trouble, who do not want any assistance from those detained. Those Appeal Councils can be rendered nugatory by the Minister on the plea of bringing out a new offence, and he could continue that process, if he so desired, ad infinitum. Treatment of that kind would not be tolerated by Courts of Justice, and why should it be tried on an Appeal Council, whose functions are similar to those of Courts of Justice? The result would be that those Appeal Councils would be a mockery unless their findings are in accordance with the feelings of the Minister in power. It is an extraordinary suggestion also that even in cases where Appeal Councils decide that the prisoner is not guilty of the charges under which he is being detained, that he should nevertheless be asked to give recognizances to keep the peace. It is equivalent to stating: “Not guilty, but do not do it again.” If he gives bail in circumstances of that kind, he is deemed guilty, though the Appeal Council may have stated he is innocent. These are the principal remarks I desire to make in regard to this Bill. I can only say, in conclusion, that during the trouble the Parliament virtually delegated the whole of its powers to a dictatorship. That may have been wise in the circumstances, but it has created a peculiar mentality in Ministers, who now seem to be unable or unwilling to get away from the dictatorial pose. The speeches delivered in the other House in connection with this Bill by some Ministers were quite understandable some time ago, but to-day, they are inexplicable. Every good citizen deplores the happenings of the last eighteen months, but I would respectfully submit that we are not going to continue to serve the State or to hasten peace by continually probing at, and opening those old wounds.
There is no doubt that a great many crimes, including robbery under arms, are still being committed in Ireland, and if this Bill aimed only at them there would not be so much to say against it, with the exception of certain things.
The army is in existence for a considerable time but does not appear to be much more disciplined than before. It is smarter than before, but there are a number of things going on such as ill-treatment of prisoners, etc., that do not give confidence to entrust them with the powers sought for. Under the circumstances I do not consider that very satisfactory. Even trained soldiers commit grave outrages under such circumstances, and we have neither trained soldiers, and even less have we trained officers.
This Bill is described as Public Safety (Powers of Arrest and Detention) Temporary Bill, and in the preamble it is stated "as an Act to make provision for the arrest and detention within a certain limited period of certain persons for other matters connected with the preservation of the public safety, and the protection of persons and property." That preamble deals undoubtedly with the prevention of crime in the future and not with crime in the past. It is preventative, not punitive, and if that were adhered to throughout it would not matter, but there are two or three words in Section 1 which nullify that. The words are in line 22, Section 1, which extend the matter to such a person of being, or having been, engaged in or concerned with the commission of offences mentioned in the schedule. That is, it includes people who have been guilty long ago in this matter, and in that way it ceases to be preventative. It becomes a punishment for persons who are supposed to have committed certain offences long ago, whereas in all the other cases it refers to people who are supposed to be going to commit offences. I presume this Bill is meant to arrest any person known to be a bad character. This Bill is meant to prevent that by putting and keeping a man in prison.
Here again, however certain the Minister himself and everybody in the country may be, that the man is not going to commit any such crime and has no intention of doing so, nevertheless to keep arrested the men who in some past time—six months or two years ago—did commit such a crime, seems to me to be going entirely beyond the rest of the Bill and it ceases then to be a preventative measure and becomes a punitive one. Coming to the question of these political prisoners, it could hardly be doubted that many of them have in the past committed, or helped to commit, some of these crimes, but here again some of these were committed in the past, long ago. It is known perfectly well that about nine months ago the leaders in that association issued an order to down arms. That, in itself, might not go very far in our opinion, but they have actually maintained that attitude and I think that it cannot be shown that during these nine months they have broken out or done any great damage in that matter. It may be said that certain individuals have done so, just as certain individuals of the army have done a great deal more, but it cannot be said that there is any chance now of political prisoners breaking out into arms or making attacks on houses.
If, therefore, what I say is true, that there is no chance of these people breaking out into arms or committing hostile acts on individuals, the object of this Bill is not prevention at all. It is not an attempt to keep in prison ruffians who break into houses, but to keep a number of political prisoners in jail because they are political prisoners, and because they are opposed to the present Government and the present state of affairs. When the previous Bill to this was before the Seanad I stated that I believed that one of its objects was to arrest and keep in prison opponents of the Minister, and not only of the Minister but of the present state of affairs, and the Minister indignantly denied that; not only that, but said that I knew perfectly well that it was not true. It turned out to be a fact, because numbers of people who are our political opponents have been arrested during that time.
During the elections there were a great number of cases in which people were arrested, apparently for no reason except to influence it. One of these, I may mention, was Mr. Donnelly, who was Director of Elections. He was arrested just before the elections began, and let out immediately afterwards. There may have been a suspicion that he was going to do something desperate at the moment, but it was very curious that he should be arrested just before and liberated just after. Under the circumstances I might suppose that he was arrested in order to influence the elections. I do not think it did; I think it had a very opposite effect, and in many cases I believe that the elections would have gone very differently if these things did not happen, because they irritated a great number of people.
Another reason why I object to this Bill is because it has an unconstitutional result. If it is meant to detain political prisoners who are members of the Dáil I believe it is absolutely unconstitutional. The Constitution states, "Every member of the Oireachtas shall, except in cases of treason, felony, and breaches of the peace be privileged from arrest in going to or returning from or while within the precincts of either House."
It seems perfectly clear to me that that phrase prevents any member of the Oireachtas from being arrested unless he is charged with any of these acts. Somebody may find some way of getting behind that. I am unable to find any special way. It seems to me as clear as daylight. I do not want to quote what happened in other countries. If I were to do so, I could very well give reasons from other countries for maintaining that it is their practice, but our position is entirely different from theirs, because they are governed, not by a Constitution, but by the privileges of Parliament. Ours is governed by the words of the Constitution, and our Constitution says that any member of the Oireachtas is free from the danger of arrest unless he be guilty or charged with treason, felony, or breach of the peace. None of these people have been charged with any of these acts.
I do not deny for a moment that they have been guilty of these things. Most of them have. But they have not been charged, and I think unless they are charged their detention is an actual breach of the Constitution. When the other Bill was before the Seanad, I made a similar statement. I asked the Minister if he was proposing to override the Constitution, and he said very definitely and clearly that it did not do so, that it could not override the Constitution. The Constitution was the touchstone of every Bill that could be brought before the House, and in that he was perfectly accurate. But it is, as far as I can see, contrary to the Constitution to keep Mr. de Valera, or any member of the Dáil, in prison, as has been done, and is being done.
There is one more reason that I have to give, and that is, that I heard a Senator say some time ago that the main thing with every person of good order and good desire in the country was to bring about peace in this country, to make friends with those whom we quarrelled with, and, as much as is possible, as much as is safe for the State, to bring everyone together in peace and good-will. I maintain that as long as we keep these people in prison that cannot be done. I believe practically every person in Ireland is in favour of the release of these people, with the exception, I presume, of the Ministers and a few others. Practically everyone else whom I have met for the last few months has agreed with that, and it has been stated all over the country, and by all sorts of people, because we all recognise that we cannot have peace and good-will as long as these people are in prison.
When this Bill was before the Seanad in its first form some months ago one of the Labour Members got a clause inserted providing for the inspection of prisons, camps and other places. I had something to do with the endeavour to get that clause inserted, but, as far as I know, it has never been acted upon. The clause is one "Providing for the inspection of such prisons, camps and other places, and the visiting of persons detained therein, by responsible persons, to be appointed by the Minister." I have felt for some months considerable curiosity as to the fate of that clause, and I think our Labour Senators have also felt some curiosity. I shall be very glad if that curiosity could be satisfied, to know whether these persons have been appointed, whether they have inspected the prisons; and if they have not been appointed, if they are going to be appointed, and when.
When the last Public Safety Bill was before the Seanad I felt it my duty to vote against it, because I did not believe that the fundamental principles underlying it would really make for the speedy maintenance of good government. I am very glad that this Bill goes in the right direction, and I should like to say that, while I am still of the same opinion, and while I do not think I could conscientiously vote for the Bill, I recognise the direction in which it goes as a fulfilment of the lines on which the responsible Minister promised he would act.
We are all of us in complete agreement that it is the duty of the Government and the Oireachtas to take such measures as will lead to the establishment of law, of confidence, and of order in this country. I do not mean law and order in the sense in which it is often referred to, but order in the sense by which men and women of all kinds, of all parties and of all sections will feel that the law exists for their protection, for the guarantee of their liberty, and will come to learn that the Constitution and the State, with all its faults, is none the less the guarantee of their liberty. For my part, I am particularly desirous, and I think that we are not without signs, that though they refuse to admit it, that amongst those who have opposed, some constitutionally and many by methods which have no justification whatever, the creation of the State, that these persons should be forced by the very circumstances to find that this very thing is their protection and the guarantee of their liberty, in so far as they are prepared to respect the liberties of others and to act by methods, to put it plainly, which are consistent with the ordinary recognised Christian practices and relationships betwen men. I recognise that this Bill, or some such Bill, is now necessary to continue the policy of government which has been by means of abnormal measures and powers to try and establish a State in which the ordinary law would operate, and thereby to see its vindication.
I recognise that in this Bill with the elimination of several Clauses, which many of us very much objected to on the previous occasion, they are going in that direction. At the same time I am still of the opinion that though it might have been more troublesome and slower and not so spectacular, and perhaps might not have had the same kind of satisfaction that in the long run, once you had got to the state of an established peace, it would be better frankly to face the situation and try your prisoners or release them. There has been a great deal talked from which I wish to dissociate myself. It has been stated that this Government has been hard or brutal towards its political opponents. I read in one place a reference to South Africa, and a suggestion that General Smuts pardoned all his prisoners, and that we are holding them in jail. The facts are, I believe, that the South African Government introduced measures providing special penalties for the prisoners and before they pardoned the prisoners they insisted on the trial of every one of them. I am not saying we should imitate them in that, but I do not want to associate myself with the suggestion that there has been any kind of harshness which is peculiar to this country, and that the Government here has been less reasonable in the treatment of their opponents than those of other countries who had to meet similar circumstances.
I think there is one thing that those of us who are opposed to this measure must face. The political prisoners in jail through those who are supposed to speak for them are still asserting that they, though a minority, are the only lawful Government of this country. They may not be asserting it by means of force, for they cannot do it, but it ought to be made perfectly clear by those who cannot, as I cannot, support their continued detention without trial, that we do not expect the Government to release unconditionally, and to give all facilities for persons who claim that they can act as the lawful Government of the country before they have got a majority. I only mention this because there is sometimes a belief that those of us who have not always been able to agree with all the measures of the Government have any sympathy with that action. I believe, with others here who take a similar position, and hold that view as strongly as I do—I do not propose to move amendments or do any more than simply register my vote on this occasion—that we are getting on, that people are discovering the genuineness of Saorstát Eireann, that they are discovering that they are governing themselves, and that they are discovering that the very blunders of the Government they are objecting to are their blunders and responsibilities, and that they are discovering we are learning to govern. I do hope notwithstanding the powers that are given, that on every occasion where it is possible the Government will try in preference to holding without trial, even though they have this power, and that when the end of the twelve months comes that they get to the end of this Bill, that there will be no need for it, because they will gradually have evolved to a State in which ordinary law can operate.
I propose to deal very briefly with the points raised by the various Senators who spoke. Preliminary to that I should like to say just a few words on the general tenour and the underlying principles of this Bill. It can really be reduced to two main proposals: (1) The proposal that for twelve months to come it shall be possible to arrest and detain persons on something short of legal proof. (2) The proposal with regard to persons still in custody that it shall be lawful to retain them for a further period until we are of opinion that the public safety permits of their release. Practically everything else in the Bill is supplemetary or secondary to these two proposals.
With regard to the first we quite admit that the principle of arrest and detention without trial is normally objectionable and that the principle of assuming innocence until guilt is proved is a very sound and admirable one for a country not situated just as we are. There is still through the country in many counties, perhaps in six or seven counties, a degree of terrorism which puts an undue strain on the average citizen when it comes to a question of coming forward and giving evidence either with regard to his own particular complaints or grievance, or still harder when it is a question of giving evidence in the case of his neighbour's grievance.
We recognise that, and recognise also that in the case of certain individuals brought to trial a very severe strain would be placed upon numbers of jurors. I elaborated that aspect of the matter at some length in the Dáil, and I feel that it is probably unnecessary to stress it here to Senators coming from various parts of the country who have personal knowledge that what I say is true. I think that it should be almost unnecessary for me to state that the Bill is not aimed at any particular section within the country. I believe that every Senator— with the possible exception of Senator Moore, who has rather a remarkable capacity for smelling rats—will accept that——
Who are the rats?
Will realise that the wish of the Government would be to see side by side in the one internment camp both the blackguard who professes to approve of our acceptance of the Treaty and the blackguard who professes to disapprove. Personally, nothing would give me greater pleasure than to see that interesting pair side by side discussing the merits and the demerits of the Treaty while the country recovered from the activities of both. In so far as the operation of this Bill will come directly within the scope of the Department to which I am responsible it is that desirable consummation I will aim at.
As to the prisoners still detained I have some figures which I will run through for the Seanad. On the 1st June last there were in military custody 12,000 prisoners, on 1st July 11,500, on 1st August 11,000, on 1st September 10,500, on 1st October 9,700, on 1st November 8,000, on 1st December 5,500, on 1st January 1,850. There are at present, in round numbers, 1,500. I submit that that is a programme of releases which might be described as generous to the point of rashness. We could not have taken that course if we had not the confidence that both Houses of the Oireachtas would appreciate the necessity of arming the Executive throughout the next year with very special and very exceptional powers to deal with any situation that may arise, and to deal with the aftermath of the situation that, in fact, arose and prevailed for close on two years.
There were comments by Senator O'Farrell with regard to the powers conferred on the military, and in particular the powers conferred by Section 2 on the "responsible officer." I do not propose to enter on the question of Senator O'Farrell's strictures on the military, on members of the army. It is not primarily my responsibility, and, in any case, I hold that it is only remotely relevant to the Bill. The army, such as it is, is the only army you have to rely on to arrest the armed criminal. That is the case for the powers conferred on the responsible military officer by this Bill; that you have no one else to whom you can entrust these duties and who is capable of performing them. One cannot send a party of unarmed Civic Guards to deal with a gang of armed criminals. Senators are no doubt aware that there are gangs of armed criminals and very active gangs in quite a lot of areas in the country still. In Cork, in East Galway, in portions of Tipperary, and portions of Offally there are men still passing their private legislation with their revolvers, and you have only the army to meet these men.
The definition of "responsible officer" has been taken exception to, and, in particular, that portion of the definition which allows the Commandant to delegate. That is necessary simply to meet a practical situation. I gave an example in the Dáil of the situation we wished to meet. A badly-wanted man, or half a dozen badly-wanted men, may be known to be in a particular town, in a fair or circus, amongst any assembly of people, and a party of military must be employed for the arrest. If you say that the physical act of arrest can only be carried out by the responsible officer in person, then, in fact, you are legislating for the criminal, because the odds are one hundred to one against the responsible officer being able to effect the arrest in person.
We were taunted with the lack of any definite policy with regard to the persons still in custody. There may be just this in that charge, that one has to keep an open mind on the matter. One has just to go along judging the situation in the country and seeing, according to its development, what it was possible to do. There has been a very generous scale of releases, particularly within the last two or three months. We must see what it brings. and, watching the situation in the country like that, men can be gradually liberated until it will boil down perhaps to 200, 300, or 500 of those chiefly responsible for the situation of the last two years. Then, when our responsibilities to the people for the safety of their persons, the safety of their property, the freedom of their lives, seems to permit it, those persons will be released. I think that that is our function. I think that is what the people of the country expect.
I do not at all agree with Senator Moore when he says that everyone in the country desires the immediate release of these prisoners, except the Ministers and a few others. I think that is an exaggeration. The question of provisions with regard to recognisances was raised, and Senator O'Farrell seemed to consider that, inasmuch as the arrest and detention was on suspicion, or, at any rate, on something short of legal proof, that, therefore, there ought to be no question of recognisances. Every Senator knows that in the past it was the commonest thing in the world before the Petty Sessions Court when a charge against a person was not proven for bail to be imposed. It was quite a common thing. Moreover, that particular section with regard to recognisances was inserted in the interests of those who are detained, and in the interests of those who will be detained under the operation of this Bill. Take the case of agrarian disturbances, and there are, unfortunately, many such cases. Take, one concrete example which I will give without mentioning the names of persons or places.
I know at the moment of a farm held by two sisters, young girls, against whom a persecution is going on, with regard to the farm, conducted by people who have not a scrap of legal or equitable claim to the land, but who are simply inspired by a desire to take advantage of the apparently helpless position of the owners. The identity of the persons responsible for that persecution is beyond all doubt, but there is no overt act which could be proved in a Court. People do not do that kind of thing in the light of day or in the presence of witnesses. They skulk out at night with a matchbox and a tin of parafin oil and do their work under the cover of darkness. It might well be that this Bill would be used to meet cases of that kind, but no one wants more than this, that the persecution would cease. If persons arrested under this Bill were prepared to give their own assurances to that effect, or prepared to give the bail of their friends or neighbours, there could be no objection to releasing them. A person arrested on very reasonable suspicion of committing outrages, or a series of outrages of this kind, could secure that a friend or relative would come along and offer recognisances for him, and on these recognisances it might be possible in a particular case to issue a release order. The recognisances would not be estreated except on subsequent conviction.
There could be no question of estreating bails on even what would seem to be reasonably grounded suspicion. If A.B. is interned, and his brother, uncle, or father comes along and says, "If you release him I will enter into bails for his good behaviour," then the father's or uncle's recognisances could only be estreated if there was a subsequent conviction of the released person. I think it would be unwise to strike out from the Bill that provision. If there is a substantial feeling here that it should be struck out, I would now ask the Seanad to reject that amendment. I think myself it would be unwise, and that it would not be in the interests of persons who may be interned under this Bill, to strike it out. Senator Colonel Moore dealt mainly with the question of persons still interned in connection with the events of the last two years, and drew a subtle distinction between ruffians who broke into houses and political prisoners. It is an abuse of language to describe the persons still interned as political prisoners.
Excuse me, I think the Minister slightly misunderstood me. What I dealt with was those who committed these crimes, as the political prisoners, I admit did, six or nine months ago, and those who have been arrested for preventive purposes now. That was the distinction. I quite admit they committed these crimes, and I have in no way whatever defended them. There is the question of preventative and punitive.
I am glad to have the Senator's explanation. We think it is necessary for the peace and security of the country to continue to detain certain persons now in custody, and to get power to arrest and detain persons who are not now in custody. I do not propose to deal with Senator Colonel Moore's high Constitutional argument as to the legality of detaining persons who were elected to be members of the Dáil. The Courts can decide that, and, personally, I would be very glad, if it were possible, for Senator Colonel Moore in person to argue his case before the Courts.
Question put and carried.
Bill read a Second Time.