PUBLIC SAFETY BILL, 1927—THIRD STAGE.
The Seanad went into Committee.
SECTION 1.
(1) This Act may be cited as the Public Safety Act, 1927.
(2) This Act shall continue in force for five years from the passing thereof and shall then expire.
I move:—
Sub-section (2). To delete in line 13 the words "five years" and to substitute therefor the words "one year."
The effect of this would be to confine the operations of the Bill to a period of one year. Before saying anything further on the amendment, I want to draw attention to what, in my opinion, was a most undesirable—to say the least of it—canvass that took place in this House and its precincts last evening with regard to matters arising under this Bill. A member of the House went round and endeavoured to persuade Senators to put down no amendments to the Bill—not to alter it by as much as a comma—on the ground that any alteration of the Bill would mean its having to go back to the other House, and that possible political developments might render that a very undesirable course from the viewpoint of Party politics. I hope that the House is more worthy of the purposes for which it was elected than to be swayed by canvassing or touting of that kind. We were elected for special purposes, above all to act as a cool and deliberative assembly to prevent wild or panicky legislation, and generally to protect the interests of the community as a whole from the ravages of Party passions. Unfortunately, there is a disposition for us to ignore the main things for which we were brought into existence, and to concentrate on a matter with which we are supposed to have little or nothing to do—finance. This House, because of its composition interests itself practically in nothing but finance, a matter over which we have no control.
CATHAOIRLEACH
That is not quite accurate—that hardly represents the true position. I would be very sorry to admit for a moment that we had not a substantial amount of control in matters of finance.
In regard to the Finance Bill and the imposition of taxation we are deliberately excluded, but I just make a passing remark that our principal activities are concentrated on matters relating to finance, whilst other very important subjects affecting, above all, the liberty and well-being of every citizen, are pretty well ignored, except by a very small number who are, of course, swamped, and who can do very little except move amendments and criticise. If the House is to succumb to the representations made to it last evening by an over-zealous member, I fear there is no use in moving these amendments. But I have sufficient confidence in Senators to feel that, at least, they will try and consider the amendments on their merits, and not feel that it is good Party tactics not to alter a single comma of the Bill, no matter how desirable that course may be. Very conscientious Senators have come to me and said that the position is so serious in that respect that they cannot consider any amendments. If they are of that opinion still, I do not see any prospect of any of these amendments being considered on their merits. I will say this for the relief of Senators, that no matter what arises in regard to this Bill the Dáil has to meet. The Currency Bill has to go back to the Dáil, as we have inserted some dozen amendments, and the motion for the adjournment has to take place. I am not in possession of any secret, good, bad or indifferent, as to what is going to happen, but I do throw out that as something that must happen—that the Dáil must meet and that anything that may happen in the event of the Bill going back can happen whether it goes back or not.
The reasonableness of this amendment will be recognised when one considers the very drastic and unusual nature of the provisions contained in it. It is setting aside all constitutional practices in regard to a great part of the criminal code. It involves the setting aside of the principles and rights of citizenship that have been won as a result of generations of struggle not only here, but in all other countries. There are, I admit, times, no matter what Government is in power, when the Constitution may have to be set aside, and when drastic measures have to be applied for the suppression of grave disorder, and, above all, the operations of secret societies. But nobody wants to extend that period beyond the time that is absolutely necessary. I do not know if the Government takes such a gloomy view of the position that they feel it is necessary to set aside the Constitution for five years. It seems a long time in the life of a young nation to have a cloud of that kind overhanging it, and in view of the possibility of frequent changes of government within that period, it is a dangerous thing, with Party passions running very high, to have a terrible code, such as is contained in this Bill, in the hands of governments depending for their support on coalitions and on the chances of Party fluctuations and passion in the other House. In these circumstances, I think, in the interests of all concerned, it would be better even to come again for another Bill than to extend this Bill beyond the period that is considered absolutely necessary.
The Senator who has just sat down stated that members of this House were canvassed yesterday in order to persuade them not to put down amendments. I was not canvassed by anybody and I never heard of the canvas, but, now that the Senator has spoken of the matter I find myself deeply interested. I would like to know if we do amend this Bill whether the Dáil can reconsider it in its entirety and throw it out or merely consider the amendments inserted by this House. That does seem to me to concern our deliberations to-day.
CATHAOIRLEACH
I do not know whether the Senator is asking my view on the matter or not.
It would be an excellent view——
CATHAOIRLEACH
Or whether he wants a general statement. The position with regard to amendments is that if the Dáil agreed with amendments inserted by the Seanad there would be nothing more to be said, but if they disagreed with amendments inserted in this House the Bill would come back to us and we would have either to stand by those amendments or to cancel them. If we stood by our amendments the Bill would be held up for a period of about nine months.
That I understand, but my point is this: If we amend this Bill are we giving an opportunity to the Dáil, next Friday, which may possibly be somewhat differently constituted, to reconsider the entire Bill?
CATHAOIRLEACH
That matter must depend entirely upon the construction of their Standing Orders and upon the Ceann Comhairle and not upon me, and I, certainly, am not going to offer any opinion on that question.
The amendment moved by Senator O'Farrell is one that has already been considered in the Dáil. I would prefer to have heard the Senator concern himself more with the case he wished to make for the amendment limiting the operations of the Bill to twelve months rather than bringing in the extraneous matters which he introduced in his statement. It does not matter what the constitution of the Dáil may be. The facts of the matter are, if the Senator will review the history of the last five years, that although we have had very peaceful conditions, gradually increasing in security and stability, which were everywhere manifest, the greatest crime, the most extraordinary crime, that has been committed in our time, was committed in the fifth year after the "Cease Fire" order had been issued by those in arms against the State. That fact stares us in the face. In the fifth year after the "Cease Fire" order was issued a crime of the greatest possible magnitude was committed. And we are asked now to limit the life of this Bill to twelve months.
What has the Senator in mind that will happen in twelve months having regard to his knowledge of the history of the last few years? Is it likely that the people in possession of arms will have left the country by that time, or will have been dealt with according to law? Or is it going to conduce to more settled conditions, to a greater feeling of stability, if in twelve months time the Government has again to come forward to ask Parliament for a measure having all the powers in this Bill? The public mind is disturbed, whether we like it or not, by the introduction into Parliament, and the passage through Parliament, of these measures. Once, however, they are passed there is a greater feeling of public security. But people do not want to be reminded of the necessity for passing into law measures of this sort.
When the Senator speaks of the liberties won I would like him to be a little more exact in his historical review of the situation. There is a disposition here in this country to consider that no big change took place five or six years ago in the history of this country, that we are part and parcel, still, of the British House of Commons, that the history, which the British House of Commons has experienced for five or six or seven centuries, is still our history, that Parliament is always grappling with the Crown, trying to get into its control more and more of the power exercised by the Crown. That is not the case here. At a time of big national crisis, the utmost possible liberty, and the greatest possible democratic control were conferred upon the people of the country. It does not require any review of the history of the last four or five years to assure the Seanad that that democratic control and liberty, given in a time of crisis and stress, have been abused, that efforts have been made to make them a failure, that in order to secure for the people that democratic control and that liberty, we propose in respect to certain people only—those who seek by violence to achieve their ends—to suspend the Constitution as far as these particular activites are concerned. The ordinary criminal code is not interfered with in the slightest degree. The man who sets out by conspiracy, by treason, and by arms to subvert ordered authority in this State, is going to be denied the privileges and liberties of the Constitution, in so far as these activities are concerned, and only so far as these things are concerned. I submit, having regard to the fact that numerous instances have been reported during five years, showing a disposition on the part of those in conspiracy against the State to use violence and unlawful means to achieve their ends, that there must be a longer life to this measure than twelve months. If, as I say, in the fifth year after the issue of the proclamation to cease fire the biggest crime committed in these five years was committed, then there is a good case for giving a life of five years to this measure.
Amendment put.
The Committee divided. Tá, 5; Níl, 22.
Tá
- W. Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- John T. O'Farrell.
Níl
- Sir E. Bellingham.
- P.J. Brady.
- S.L. Brown.
- Mrs. Costello.
- J.C. Counihan.
- Countess of Desart.
- James Dillon.
- Sir Nugent Everard.
- Michael Fanning.
- Earl of Granard.
- B. Haughton.
- P.J. Hooper.
- Arthur Jackson.
- P.W. Kenny.
- Thomas Linehan.
- Francis McGuinness.
- John MacLoughlin.
- General Sir B. Mahon.
- William J. Molloy.
- Joseph O'Connor.
- M.F. O'Hanlon.
- W.B. Yeats.
Amendment declared lost.
Section 1 ordered to stand part of the Bill.
Sections 2 and 3 ordered to stand part of the Bill.
SECTION 4.—SUB-SECTION (1).
Every order made by the Executive Council under this section declaring an association to be an unlawful association shall take effect as on and from the expiration of the day following the day on which such order is published in the "Iris Oifigiúil."
I move:—
Section 4, sub-section (1). To add at the end of the sub-section the words: "Provided that an order under this section declaring an association which is a trade union or a society registered under the Friendly Societies Acts or the Industrial Provident Societies Acts to be an unlawful association may be made by the Executive Council only after application has been made by the Executive Council to the High Court and that Court has been satisfied that the order is necessary for the preservation of the State and the public safety."
The object of this amendment is to see that the professions made by members of the Executive Council. When this Bill was under discussion in the other House, will be given effect to. It has been stated repeatedly that this Bill is drafted for the purpose of dealing with people who endeavour to overthrow the institutions of the State. In the other House, attention was called to the possibility under the provisions of the Bill, if a Minister so desired, of declaring trade unions or other organisations unlawful associations. The amendment, if passed, would prevent any trade union, friendly society or organisation, that could not by any stretch of the imagination come under the heading of an unlawful association, being declared an unlawful association, unless a case was made before the High Court. I think the amendment is not asking too much. We are simply putting up a fair and square case, so that the professions made by the Ministry will be given effect to in law. As I understand it, what is said in debate is not law. The judges have to interpret not what is said in debate but what is contained in the Act. Even though we are incurring the risk of being told that we are out to save our own skins in this matter, nevertheless, we feel it our duty to put down this amendment. We have become so accustomed to abuse from both sides that people outside have already said we are only out to save our skins. Still we think it is our duty to safeguard the interests of the people we represent. The amendment is put forward with that object, and I hope the House will pass it.
This amendment was also put forward in the Dáil and given very careful consideration there. It comes to this, that the interpretation which the Senator has put on this measure is one which connotes a corrupt Executive. If trade unions as we understand them and as we have seen them operating, continue in that work and do not take up amongst their professed objects the advocating, encouraging, or professing to encourage the overthrow by force of the Government of Saorstát Eireann, or any of the other conditions concerned with unlawful associations—
Yes, any one of them. If a trade union has any one of these amongst its professed objects it is an unlawful association; if it has not it is not an unlawful association. An Executive which would declare a trade union an unlawful association would certainly not be entitled to the confidence of the Dáil. It was mentioned in the Dáil by some of those who put forward an amendment of this sort that they did not believe that this section would be used against trade unions. If we introduce the question of trade unions why not go further? Why not include the R.D.S.?
Or the Masonic Institution?
Or any one of them, if you like, Fianna Fáil, which does not advocate the overthrow of the Government of Saorstát Eireann by violence. It does not; it has not that amongst its professed objects. Why not include the many philanthropic associations in the country? Each one of them is just as much entitled to consideration as are trade unions. This Bill is not intended to operate against trade unions. They have their rights and their privileges, and it would be a great abuse of Executive power to include one of them as an unlawful association if it had not amongst its professed objects these particular items set out in the Bill. I think the Senator himself, although he professed some misgiving when recommending this amendment to the Seanad, has no misgiving whatever that it is going to be used in that direction.
I hope, merely because this amendment has been rejected in the other House, that this House will not feel bound to follow the same course of action. If it does it would be, of course, a waste of time putting down amendments here. The position of a trade union is not at all on all fours with that of a friendly society, or a body like the Royal Dublin Society, or the Masonic Institute. A trade union comes into more intimate contact with the public and with the Government than any other organisation that I know of. One can easily imagine how, for instance, a railway strike would affect the whole community. A strike or a big dispute in any branch of transport invariably and immediately brings in the Government, in the interests of the community. Supposing that we called a strike and held up the work on the Shannon scheme, such an act would be of infinitely greater import than anything that might be done by the Royal Dublin Society, or by any other institution or friendly society. The President says that this amendment would connote a corrupt Executive. I do not think it necessarily would. A man like the present Minister for Industry and Commerce might do something that in our opinion would be extremely tyrannical, and that certainly in the minds of most men would be illegal and unconstitutional. He would do it with the greatest excess of fervour, feeling that he was serving some particular cause. A man who poses as a modern Robespierre will do something that will shock humanity, but he will always be able to salve his conscience because he feels in the long run that it will be good for the community, and good even for those he punishes.
We have been treated very severely, very harshly—one might say savagely —in recent years when we have tried to get the question of unemployment discussed. The abuse in connection with that has been of the most callous and provocative type. Every time a labour question has been raised, language of the most cruel type has been used. Many friends of the Government who may be trade unionists but not supporters of ours are uneasy as to the manner in which this Bill may be used, because it states that "The Executive Council may be Order declare any association which in the opinion of the Executive Council ..." The opinion of the Executive may be quite at variance with the opinion of the trade union as to what its objects are. For instance, there may be a union, or an organisation, which does not state all its objects in actual print, or it may be contended that there are one set of objects stated in print while another set are being pursued in actual practice.
It would be quite easy for any Executive Council, imbued with a hostile and anti-labour spirit, to interpret the Constitution to suit itself in a time of keen industrial controversy. In normal times there is no danger of that, but trouble may arise between employers and a trade union, and the Government may contend that the activities of the trade union, whatever its professed objects may be, are seditious, that they are against the interests of the community, that they tend to undermine the Constitution— which does not exist at the time—and other things of that kind, and they might use the special powers contained in this Bill to remove the legislation under which trade unions exist and function. If there is no danger of this thing taking place there is no harm in passing this amendment, because no assurance given by a Minister will effect the administration of the law afterwards.
Amendment put.
The Committee divided: Tá, 5; Níl, 26.
Tá
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- John T. O'Farrell.
Níl
- Sir Edward Bellingham.
- P.J. Brady.
- Samuel L. Brown.
- Mrs. Costello.
- John C. Counihan.
- Countess of Desart.
- James Dillon.
- Sir Nugent Everard.
- Michael Fanning.
- The Earl of Granard.
- Benjamin Haughton.
- P.J. Hooper.
- Arthur Jackson.
- Right Hon, Andrew Jameson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Thomas Linehan.
- John MacLoughlin.
- General Sir Bryan Mahon.
- William John Molloy.
- Joseph O'Connor.
- Michael F. O'Hanlon.
- Bernard O'Rourke.
- Siobhán Bean an Phaoraigh.
- W.B. Yeats.
Amendment declared lost.
Question—"That Section 4 stand part of the Bill"—put and agreed to.
Question—"That Section 5 stand part of the Bill"—put and agreed to.
SECTION 6.
If any document (of whatsoever date or bearing no date) issued by or emanating from an unlawful association or appearing to be so issued or so to emanate or purporting to aid or abet an unlawful association or otherwise relating to or connected with an unlawful association is found on or in the possession of or on or in premises belonging to, occupied by, or under the control of any person, such person, unless he satisfies the Court that he did not know such document was in his possession or on or in such premises or that he did not know the nature or contents of such document, shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or at the discretion of the Court to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.
I propose to delete in line 34 the words "belonging to." In proposing this amendment, I think it will be generally agreed that it is absolutely unfair to any person owning premises to have these words included in the section. The section says that "if any document (of whatever date, or bearing no date) issued by or emanating from an unlawful association is found on or in the possession of, or on, or in premises belonging to, occupied by, or under the control of any person," and so on. The words "belonging to" are the words I want to have eliminated, because I hold that it is unfair that a man owning premises, say a landlord who may be miles away from the place where the documents are found, and who may know nothing whatever about those documents, or that the proprietor of a hotel or lodging-house, a person who has a visitor staying with him, or who lets a room or flat or any other portion of the premises to anybody, should be liable under this section, as long as these words remain, to a fine not exceeding fifty pounds or imprisonment for any term not exceeding three months, if any document connected with an unlawful association is found on such premises. I think that is an absolutely absurd provision in the Bill. And if anyone with common sense looks into the matter and sees the implication of these two words, he will have no hesitation in voting for their removal.
This is another case in which I would direct the attention of the Seanad to the purpose of this measure. The purpose of this measure is really against persons who are seeking by violence to alter the conditions in the State. In ordinary circumstances there would be a case for what the Senator has put up, the deletion of the words "belonging to." But we know that during the last four or five years certain people have been disposed to allow their premises to be used for these purposes. Were it not for the convenience that is afforded by certain people in letting their premises for those purposes it would be much more difficult to carry on the activities of these unlawful associations. There are very few innocent people in matters of this kind, and if there are innocent people, well, the resources of the State are pretty well taxed in dealing with a conspiracy at this time. The assistance of all men of good-will in the State ought be available for the support of the State in dealing with such an association as this measure is intended to deal with. We want to prevent crime. How is it to be prevented? We want to make every citizen in this State a little anxious regarding the class of persons to whom his premises are to be let, a little concerned as to the people who are to occupy them, and a little concerned that the houses of which they are the owners shall not be used for the purpose of forwarding the interests of these illegal societies, societies that have only one purpose in view —anarchy—and we want the help of all citizens to prevent anarchy. We want to see that it will not be easy to get premises for that purpose.
The President tries to make the hair stand on our heads as regards anarchy, but that is beside the point as far as this amendment is concerned. In order to get the proper effect of this section one must realise that any seditious document found in any house in Dublin would henceforth involve the arrest of the landlord. Under it the landlord would be put to the task of proving his innocence of any such document being found on the premises. A farmer having a little cottage or a number of cottages on his land will by this section be held responsible for any documents that may be found in these premises unless he can satisfy the courts that he knew nothing of them. Would it not be sufficient to provide that the occupier of the house, instead of the owner, shall be asked to prove his innocence? There are very many rented dwellings in this country, particularly in Dublin, and I think it is simply preposterous to put words like these in, unless it is the intention of the House and the desire of the Government that, whatever the merits of the amendment, there shall be no amendment inserted in this House.
I did not think that the Labour Party would have so much feeling for the landlords. It is unusual.
Justice for all classes. We are not one-eyed politicians.
There is an opportunity provided which will enable the innocent person to prove his innocence before the court.
This will mean, unless it is amended, that in the case of every landlord you will have to bring him to court in order to prove his innocence.
If one of the people who inhabit Iveagh House, a very admirable institution erected by Lord Iveagh for the purpose of providing homes for men and women who are not able to have homes of their own—it is a kind of very decent lodginghouse and it serves a very useful purpose in the city—was found in possession of a document of a seditious character, I wonder would Lord Iveagh be arrested and would he have to prove his innocence because of the fact that the house is one belonging to him?
Who is the head of the Trust? Would they have to arrest the whole Trust? Our arguments against this portion of the section are not in the form of vexatious opposition; we are merely putting forward the commonsense point of view. You have in the section sufficient provision to deal with everybody concerned in the house, but it is not fair that because a man owns a house he should be held accountable. A man may have let a house for a period of fifty years and yet, under this measure, if any seditious documents are found in that house he is held responsible. Of course it is not a very material point as far as we are concerned. We own less houses than other members of the Seanad and we are less concerned with the matter than anybody else. If the people who are likely to suffer are not alive to their own interests then let the trouble fall upon their own heads.
I would like to know from the President if he has any conception as to what would happen in the case of the Great Southern Railways Company, who have let some thousands of houses to employees. If a document is found in any one of these houses, are the Railway directors to be arrested? Have they to prove their innocence? They undoubtedly own the houses. Again, Messrs. Guinness own hundreds of houses that are let to their employees. Who would be arrested in that case? The Dublin Commissioners hold hundreds of houses on behalf of the Corporation—thousands of houses. Will they be arrested? This may look a laughing matter, but we cannot have one law for one person and another law for another person. If the Railway Company, Messrs. Guinness and the Dublin Commissioners are not to be asked to prove that they know nothing of the seditious documents found, I fail to see why the owner of a little house let to a tenant should be called upon to prove it.
Perhaps the Senator will read the section—"premises belonging to, occupied by, or under the control of any person..."
In line 31 the section reads: "belonging to, occupied by, or ...." If the word "or" were changed to "and" perhaps it would meet the point.
I think the suggestion put forward by Senator Kenny would be acceptable, as it is a reasonable one.
I do not think it would help the section, and that is what I am really concerned about.
Amendment put.
The Committee divided: Tá, 6; Níl, 28.
Tá
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- John T. O'Farrell.
- Siobhán Bean an Phaoraigh.
Níl
- Sir E. Bellingham.
- P.J. Brady.
- S.L. Brown.
- Mrs. Costello.
- John C. Counihan.
- Countess of Desart.
- James Dillon.
- Sir Nugent Everard.
- Michael Fanning.
- Dr. Gogarty.
- Earl of Granard.
- Benjamin Haughton.
- P.J. Hooper.
- Arthur Jackson.
- Right Hon. Andrew Jameson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Thomas Linehan.
- Francis MacGuinness.
- John MacLoughlin.
- General Sir Bryan Mahon.
- William J. Molloy.
- James Moran.
- Joseph O'Connor.
- Michael F. O'Hanlon.
- Bernard O'Rourke.
- W.B. Yeats.
Amendment declared lost.
I desire to call attention to the drafting of Section 6, which, I think, is incomplete in one respect. It is quite conceivable that a person may be in possession of a document for a perfectly lawful purpose. This section provides that a person shall be guilty of an offence if found in possession of documents relating to an unlawful association. Take the case, for instance, that a document of this nature comes into the possession of one of the departments of State. A secretary to a Minister may be sent on an errand with that document in his possession. He is stopped in the street by a guard and the document is found in his possession. Well, under this section, unless he is able to satisfy the court that he did not know such a document was in his possession or that he did not know the nature or contents of it, he is liable to be found guilty of an offence and, on summary conviction, to a fine not exceeding £50, or, at the discretion of the court, to imprisonment for any term not exceeding three months, or to both such fine and such imprisonment. I suggest that there is something wanting in the drafting of the section, such, for instance, as a phrase to the effect that he satisfies the court that he was in possession of the document for a lawful purpose.
The Senator should take into consideration that the State Solicitor and the Attorney-General are concerned in a matter of this sort as far as prosecutions go. I presume they may be relied on to exercise discretion in the matter. The court, too, I think may be relied on to exercise discretion in the case of an innocent person prosecuted under the circumstances referred to by the Senator. Obviously the section is not framed to deal with persons of the kind referred to by the Senator.
There are lawyers who are members of this House, and I would like to know if they can tell us where the discretion lies as far as this section is concerned. A journalist, for instance, may have such a document in his possession for journalistic purposes. I would like to know if any member of this House, who is a lawyer, can get up and say that the court has a discretion in this matter and can acquit the man?
CATHAOIRLEACH
All Acts of Parliament that make penal and attach imprisonment or penalties to certain acts are all put in that shape, but it ultimately lies with the Executive to say whether or not they will prosecute in a particular case and they cannot be compelled to do so. All legislation is phrased in this way: that a man who does certain things shall be guilty of a particular offence and shall be liable on conviction to so and so. The wording is always "shall," but that does not mean that necessarily that man commits an offence and is to be prosecuted. That lies in the discretion of the Executive.
That, I submit, is not the point. But suppose they do prosecute, has the court any discretion?
CATHAOIRLEACH
Yes, but a very important matter.
CATHAOIRLEACH
As, fortunately, I will not be sitting in any of these courts, I would not like to offer any opinion on that.
Does it follow then that certain persons in the community can commit offences and not be prosecuted for them, but that certain other people who commit the same offences are to be prosecuted? In other words, is there to be one law for one section of the community and another law for a different section. That is evidently the outcome of what you, sir, have stated. It seems to be left to the discretion of certain people to say whether, in the case of two men committing an identical offence, one is to be prosecuted and the other is not. If that is the case, then you are having one law for one section of the community and another law for a different section.
You must first find them out.
But, having found them out, why should there be one law for one person and another law for another?
CATHAOIRLEACH
There is an old principle of justice which requires what they can mens rea to be established—that is, a guilty intention. Whether that would apply to this particular section or not I cannot say, as I have not scrutinised the section for that purpose. But there are hundreds and thousands of provisions which apparently and prima facie would make a person guilty under peculiar circumstances. The question then remains, did he do the thing, or had he the documents with what is called mens rea, in other words, a guilty intention, or had he not?
Who is supposed to be the judge of whether he is guilty or not? It seems to me that the judges in a case of this sort are the people instituting the prosecution, and that under this section people would be judged before their cases went to court at all.
CATHAOIRLEACH
I do not think this section imposes an obligation on the Executive to prosecute in every case. I think the question whether they will apply the section or not depends on their own act, and they cannot be compelled to move.
It is obviously a faulty section.
Question—"That Section 6 stand part of the Bill"—put and agreed to.
SECTION 7.
(1) Whenever a person is charged with the offence of being a member of an unlawful association and it is proved to the satisfaction of the Court that a document (of whatsoever date or bearing no date) issued by or emanating from or appearing to be issued by or to emanate from an unlawful association or purporting to aid or abet an unlawful association or otherwise relating to or connected with an unlawful association was found on or in the possession of such person or on or in premises belonging to or occupied by him or under his control such person shall be deemed to be a member of the unlawful association to or with which such document relates or is connected unless he proves that he is not then a member of such association and was not a member of such association at any time after it became by virtue of this Act an unlawful association.
(2) A person who is deemed by virtue of this section to be a member of an unlawful association shall not be deemed to have proved that he is not then a member of such association and was not a member thereof since it became by virtue of this Act an unlawful association unless (in addition to such other evidence as satisfies the Court of such non-membership) he—
(a) declares on oath (which declaration the Court shall give him an opportunity of making) that he is not then a member of such unlawful association and was not a member thereof at any time since it became by virtue of this Act an unlawful association, and
(b) produces two reputable witnesses who depose on oath that they are well acquainted with him and that to the best of their knowledge, information, and belief he is not then a member of such unlawful association and was not a member thereof at any time since it became by virtue of this Act an unlawful association.
I move amendment 4:—
Section 7. To delete the section.
This section seems to me to be quite unnecessary. Section 6 imposes a penalty of £50, and in addition the person concerned may be sentenced to three months' imprisonment for having on his person or in premises belonging to or kept by him or under his control any documents believed to be seditious. That deals with that particular question, and I think the matter should end there. The penalty is a very serious one—£50 or three months' imprisonment—for being in possession of seditious documents. In addition to that, Section 7 says that possession of that document is to be assumed to mean that the person concerned is a member of a suppressed organisation, and that he must set about doing impossible things in order to prove that he is not a member of such a body. At all events, he must, in addition to any other evidence that the court may require, get two reputable witnesses to swear that, to the best of their knowledge, information and belief, he is not a member of such unlawful association. Now the position is, I think, that either Section 6 should not be in the Bill or Section 7 should go. What is the idea of punishing a man for one offence by a fine of £50 and three months' imprisonment and then charging him with another offence on the same head for which he may get three years' penal servitude?
The whole section puts up an impossible proposition to some people, particularly to humble and unknown people, because it requires them to get two reputable witnesses to prove to the best of their knowledge, information and belief that the person concerned is not a member of such an association. It is very difficult to say what a reputable witness is. In the minds of some people even a member of this House might not be called a reputable witness. Yesterday Senator Colonel Moore was told he should be glad that he was not certified as a fit inmate for the Grangegorman Asylum, but to-day Senator Colonel Moore leaves for America to represent the Department of Industry and Commerce on some Commission there.
So that a man who was regarded as a kind of Mad Hatter yesterday has gone to America to-day to represent this State on a Commission.
He may have been, for all I know. At all events, that is the report that has gone around: that he has left for America to represent in some way or another the Department of Industry and Commerce of Saorstát Eireann on a Commission there. That is a compliment to him in view of the statements made with regard to him yesterday. Let us, at all events, be reasonable or logical and not ask a man to do what is obviously impossible. If a man is found with a document in his possession and cannot prove his innocence then assume right away that he is a member of an unlawful association and sentence him to three years' penal servitude, but do not first try him and then bring him back and charge him with being a member of an unlawful association unless he can do what is obviously impossible in a great many cases.
I think the Senator is mixing up two things. There is, first of all, possession of documents, and then there is membership of an unlawful association. This section is in favour of a person who has been a member of an unlawful association but who ceases membership of it. It is his chance of liberating himself from custody and so on, and he ought to be given that opportunity. There are, I believe, many people who were members of these unlawful associations who do not stand over some of the crimes which have been committed by members of them. I think they ought to be afforded an opportunity of proving to the court they are innocent and getting liberated. This section is aimed to provide that particular door of escape for them. They ought to be afforded that escape.
I wonder has the President read the section? I know he is not misleading the House deliberately, but if he reads sub-section (1) he will see that it contains:
"Whenever a person is charged with the offence of being a member of an unlawful association and it is proved to the satisfaction of the court that a document (of whatsoever date or bearing no date) issued by or emanating from or appearing to be issued by or to emanate from an unlawful association or purporting to aid or abet an unlawful association or otherwise relating to or connected with an unlawful association was found on or in the possession of such person or on or in premises belonging to or occupied by him or under his control such person shall be deemed to be a member of the unlawful association."
The fact of a document being in the possession of a man causes him to be deemed to be a member of an unlawful association and he is called upon under sub-section (2), in order to clear himself, to swear on oath that he is not a member and provide two reputable witnesses to swear that, to the best of their knowledge and belief, he is not a member.
The Senator stopped where he ought not to have stopped:
"Unless he prove that he is not then a member of such association and was not a member of such association at any time after it became by virtue of this Act an unlawful association."
He should not be denied an opportunity of giving that proof.
That is what I object to. A man is punished twice for the one crime.
CATHAOIRLEACH
No, there is a confusion, and it is not at all to be wondered at. If you look at clauses 6 and 7, there is a distinction between them. They are not cumulative. Clause 6 does not deal with a person charged with the offence of being a member of an unlawful association. It simply confines itself to the possession of unlawful documents. Clause 7 deals with where a person is also charged with being a member of an unlawful association.
Does it not mean that he is deemed to be a member of an unlawful association?
CATHAOIRLEACH
That has nothing to do with clause 6. Clause 6 does not deal with the charge of being a member of an unlawful association.
I take it that if a man is found with seditious documents and it is proved that he had them knowingly in his possession he can be convicted.
Does it not follow as a matter of course that he will be afterwards charged under Section 7 with being a member of an unlawful association because of the possession of that document?
CATHAOIRLEACH
Not if he already got the three months.
Do we take it that if there is a suspicion that a man found with unlawful documents is a member of an unlawful association he is not tried under Section 6 but under Section 7?
CATHAOIRLEACH
I think he can be tried under either, but not both.
I shall withdraw the amendment on that understanding.
CATHAOIRLEACH
I want to be quite frank. My opinion is not worth anything. It may be of some worth to Senators so far as they have confidence in my experience or judgment, but it is in no way binding upon the courts, who are the judges and interpreters of the law.
It is the same way with a Minister. It seems to me, in the light of all my information, that Section 7 is an important section for the individual.
It will not be used in addition to Section 6?
You are asking me an important question of law, and I am not a lawyer.
CATHAOIRLEACH
It makes me a bit reluctant to answer these questions. It might afterwards be said that we have all been deceived, that we were told there could not be a prosecution under both. It is not my business to interpret these Bills, but I give my opinion for what it is worth. I am told sometimes that I am foolish for doing that, but I think, at the same time, that the House is entitled, in a matter of this kind, to the benefit of my views upon it.
I should like to say that I am of opinion he would be charged under both sections, and if he were able to exculpate himself under Section 7, it would have to be a severe decision to convict him under Section 6, so that 7 is really the valuable section to the prisoner.
Amendment put and negatived.
Amendment 5 (Senator Duffy) not moved.
I move:—
Amendment 6.—Section 7, sub-section (2). To delete all after the word "association" in line 67 down to the end of the sub-section.
This amendment provides for the deletion of the last paragraph of sub-section (2), in which a person deemed to be a member of an unlawful association must produce two reputable witnesses to depose that they are well-acquainted with him, that to the best of their knowledge, information and belief, he is not a member of the unlawful association and was not a member of it since it became unlawful. I have already referred to the difficulties in this regard in the case of poor or unknown people. They might find it very difficult to get witnesses to come along and depose as required. A poor lad living in an alley or tenement house may find it very difficult to get witnesses of that type who know him and who are prepared to come forward and give the necessary evidence. Once a man is arrested, the tendency of people is to believe that there is some substance in the allegation or he would not be arrested. The people believe that the authorities must have some information to justify his arrest and they are not disposed to come along and swear that, in their opinion, the person charged is not a member of an unlawful association. I think it is an unfair position to put a person in, and that it would be sufficient to provide for the production of such evidence as would satisfy the court of non-membership. If there is any discretion at all, it should be left to the court to say what evidence should be adduced in order to prove innocence without laying it down definitely—in contradiction of procedure under all other classes of legislation— what sort of evidence should be produced. The court might insist on this type of evidence in some cases, but in other cases they might consider that there was ample evidence without bringing the provisions of this sub-section into operation at all. They might feel disposed to discharge the prisoner on the evidence adduced but, under this paragraph, they cannot discharge him, irrespective of the testimony in his favour, unless he is in a position to produce two reputable witnesses to give evidence as provided.
I do not think this is a wise amendment. I dispute absolutely the statement made by the Senator, that there might be poor people who could not get two reputable witnesses to come forward and testify in their favour. I have had, during my life, an opportunity of mixing amongst all classes of people. I have had as much association with the poor of the city of Dublin as any other man in the city of Dublin and more than a great many. In my long experience, I do not remember having come across a case in which any man, no matter how poor, was so unknown to other people that, being innocent of an offence, he could not produce two reputable witnesses to give him a character. I do not think the Senator, when he makes a statement of that kind, can be fully conversant with the facts. The statement is not in accord with my experience, and I believe I have as much experience in this regard as anybody else.
Amendment put and negatived.
Sections 7, 8 and 9 ordered to stand part of the Bill.
SECTION 10.
Sub-section (2). Whenever a Judge of the High Court so declares the Minister for Justice to be at liberty to suppress a periodical the said Minister may within one month after the date of the order of such Judge by order suppress such periodical.
(6) No appeal shall lie from an order of a Judge of the High Court on an application under this section by the Minister for Justice for liberty to suppress a periodical.
I move amendment 6a:—
Section 10, sub-section (2). To add at the end of the sub-section the words "for a specified period, not in any case to exceed three months."
I have, of course, no sympathy with newspapers which deliberately set themselves out to encourage those who seek to overthrow the State or the Government of the country as established by the Irish people. But it seems to me that this section may inflict an unintentional injustice. The section seems to be intended to deal, in the main, with papers that are of a mushroom and fugitive character, which are established frequently, as we all know, merely to advocate extreme courses. But in addition to dealing with that class of publication this section brings within its net publications of a different character—newspapers, for instance, that have been established for many years, and that have a certain standing in the newspaper world. At present, the procedure in this section is that the Minister, if he thinks it desirable that the newspaper should be suppressed, brings the newspaper before a Judge of the High Court, who is to pronounce as to whether a certain article is seditious or not. We all know that "sedition" is a very wide term and is differently interpreted by even the most distinguished lawyers.
Whether the article in question is seditious or not will depend on the judgment of that court. If the court is satisfied that the article is seditious, the Judge may issue an order to the Minister authorising him to suppress the newspaper. That is as far as the Judge is allowed to go. The Minister proceeds to suppress the newspaper. What is the period of suppression to be? The suppression may last for a day, or it may last for ever. The period is quite indefinite. The Minister is put into a judicial position, and when the Judge has convicted the newspaper the Minister passes sentence. I think that power to pass sentence should be limited, in some way, because there are different degrees of criminality in sedition. A paragraph may quite easily get into a newspaper without any unlawful intention on the part of the publisher. He may be a man of strong political views, and, through carelessness or otherwise, some paragraph may be allowed to slip in which in calmer moments he would not allow. It would be very hard to destroy the property in that newspaper by reason of a slip of this description. Not only would you deprive the proprietor of that newspaper of his livelihood, but you would also deprive his workpeople of their livelihood. Then, if the paper is suppressed and the plant put out of action, the proprietor will find it very difficult, if he repents and desires to sell the paper, to do so. He will have great difficulty in finding a purchaser for it.
So far as I can interpret the section, the Minister has no power to remove the suppression. That is another reason why some specific words should be introduced into the section giving the Minister power to remove the suppression and instructing him to state the term the suppression shall last. In considering this matter, it should be remembered that there are other powers in the Bill to punish the journalist who offends. He can be prosecuted if he incites to crime, and there are various offences for which he can be made liable. Therefore, I think that the power of the Minister under this section should be limited, if only for the sake of the people employed in the production of the newspaper.
I think the Senator will agree that in order to secure the assent of a Judge of the High Court to a motion by the Minister for Justice to suppress a periodical very considerable proof will have to be produced that the journal has offended very materially against this measure. It will not be easy in the first place to get a suppression order. Anyone who has been afforded an opportunity of reading some of these periodicals will realise the great damage they are capable of doing and how difficult it will be to get proof against them. Further, they will realise how near they can go to the line without crossing it. Under the Interpretation Act, which authorises a Minister to do anything by Order, he has power to revoke the Order. I understand that it would be open to the Minister having made an Order to suppress a periodical, to revoke the Order. I am not disposed to give a three months period because it might be treated as a licence. I believe very few cases will arise in which a Judge of the High Court will give this authority to the Minister. I believe that it will be with the greatest possible difficulty an Order even in one case will be got. I think there would have to be very strong reasons for the suppression of a periodical if the Minister were to succeed in getting an Order from a Judge of the High Court. It would certainly be very advisable that persons engaged in publishing these periodicals, proprietors and so on, should exercise much greater care than has been exercised during the last couple of years. I think there is very little danger of abuses creeping in, in connection with the administration of this section. Every possible safeguard is being given. As I said before, the Minister having made an Order for suppression has power to revoke that Order.
Even with the power that the Minister has under the Interpretation Act to revoke an Order, I still hold that it would be very important that the term of suppression should be stated. In the case of every other offence under this Bill, the offender knows where he stands. He is fined a certain sum of money or he is imprisoned for a certain period. In this case the offender or his employees do not know where they stand or offenders do not know how long the punishment is to run. I do think that offenders under this section should at least be put in as good a position as offenders under any other section. I know that there is one other section in which somewhat the same conditions apply, but I think it is not analogous to this case. That is the section under which a member of an unlawful association can be detained indefinitely. In this case I think the offender should be out on the same footing as other offenders.
Is it not largely a question of degree? If the Senator looks at the Schedule he will find there are certain offences named there, a conviction in respect of which would leave the convicted person no interest in any subsequent proceedings. In the case of a person who is deported during the lifetime of the Act he would be outside the country. Yet a newspaper proprietor who had offended and who may be more guilty than anybody else is only to suffer for three months, under this amendment. I fear that is treating the matter too lightly. He may be guilty of incitement to any of the offences mentioned in the Schedule, and we all know how certain people are susceptible to incitement of that sort. I admit that to limit the suppression to a three months period would be very lax.
Some definite period should be stated.
Amendment put and declared lost.
I move:—
Section 10, sub-section (6). To delete the sub-section and to substitute the following new sub-section therefor:—
"(6) An appeal shall lie to the Supreme Court from any Order of a Judge of the High Court in respect of any application under sub-section (1) of this section."
This section purports to give newspapers which offend the protection of the civil courts. In that respect it differs somewhat from sections dealing with other offenders, but the section only gives the newspaper owner half the protection of the civil courts. My point is that if a newspaper is entitled to the protection of the civil courts surely it is entitled to the full protection of the civil courts and that, accordingly, there should be an appeal from the decision of the High Court Judge to the Supreme Court. I do not lack in respect for the competence and impartiality of our High Court Judges, but I do say that I would have more confidence, as I believe everybody else would, in the competence and impartiality of the Supreme Court. I would suggest further that the fact that the newspaper man appeals from the High Court to the Supreme Court shows prima facie that he is willing to run on the straight path in future, even if he has offended, and that he will act the part of a loyal citizen. I think that that mere fact in itself should entitle him to be allowed to put his case before the Supreme Court to pronounce as to whether what he has published is seditious or not. As I said on the previous amendment, a definition of sedition is extremely difficult in law. Where a man shows an intention of obeying the law he should have an opportunity of appearing before a higher tribunal.
I do not exactly subscribe to what the Senator stated —that to appeal is evidence of the man's desire to obey the law. It is evidence of his desire to continue in business and possibly to do the same thing again. As I said before, it will not be easy to get the consent of the Judge of the High Court in cases of this kind. Certain people who, in the opinion of the Minister for Justice, are undesirable persons in this country, can be deported, but certain people publishing certain things which might be of a very dangerous character, are to have an opportunity of going before a Judge of the High Court. I think that is quite enough.
CATHAOIRLEACH
It seems to me, Senator, that the discretionary words in the section—the Judge "may" make a certain Order—meets your idea. If a newspaper proprietor is anxious to obey the law and said that the article had been published through some neglect or blunder and that he was sorry, I doubt if the Judge would issue an Order in that case. I think that to a certain extent is a protection on the lines of the amendment.
It is to some extent, but the real point is as to the Judge's decision as to whether the matter is seditious or not.
CATHAOIRLEACH
If the man wants to be loyal and says that the offence was committed through a pure accident, he will have no difficulty. He will not take up a defiant attitude. He will come in in an apologetic attitude. He will say: "I did not mean this; this was done without my knowledge," or "I did not know what this article meant," and so forth. Then the Judge has discretion as to whether he will issue the Order or not.
Even judges make mistakes sometimes.
CATHAOIRLEACH
I would not have intervened at all, but the only thing I wanted to say was that the case the Senator selected was that of an innocent man. A newspaper proprietor may take responsibility for what appears in his columns, but he may not have knowledge of it. In a case of that kind, as the Senator pointed out, it requires a very strong case to be made before an order would be issued.
Amendment put and negatived.
Question—"That Sections 11 and 12 stand part of the Bill"—put and agreed to.
SECTION 13.
I move:—
Section 13, sub-section (5). To delete at the end of the sub-section the words "six months' imprisonment with hard labour" and to substitute therefor the words "imprisonment for any period not exceeding six months."
When discussing this amendment, we have to consider the whole of Section 13. The amendment only deals with a certain penalty that follows disobedience of an order. Under the section the Minister may, by order, order anybody he likes to leave the country, and in the event of failure to obey that order, there is a certain penalty pre scribed. I want the Senate to bear that in mind. The Minister may by order notify any citizen of the State that he has got to leave it, and anyone failing to obey that order may be arrested and imprisoned, and, on every occasion on which that person refuses to obey the order, he may be imprisoned for a period of six months hard labour. That is a very drastic section, and the object of my amendment simply is that there shall be a discretion with regard to the terms of imprisonment. It says in the section as it stands, "and on conviction thereof by a court of summary jurisdiction shall be sentenced to six months' imprisonment with hard labour." The object of my amendment is to secure that the sentence shall be imprisonment for any period not exceeding six months.
I want it to be optional with the court of summary jurisdiction as to whether it shall impose a sentence of hard labour or a maximum sentence of six months. I think it will be admitted by everybody, and by the President himself, that there are degrees of guilt. Under this section Senators will find that it does not necessarily mean that a person who may be deported by order of the Minister would be given a chance to defend himself. He may not necessarily be a member of an unlawful association, but the Minister can make an order expelling him from the country, and, if he refuses to go, he is brought before a court, which has no option but to sentence him to six months' imprisonment with hard labour. I think that is too drastic. There are, as I say, degrees of guilt. The President said a few moments ago that there may be people who are associated in some way with an unlawful association but who do not stand for brutal murder or crimes of that description. They may have sympathy with the ideals of an association which probably would be declared unlawful. I do not think that we are entitled to take away liberty of thought from anybody. It is within the power of the Minister to say to such a person: "As you hold different opinions from me, I am going to order you to be deported, and, if you fail to go, you will be brought before a court of summary jurisdiction and sentenced to six months' hard labour." The court is left no option to say whether such an individual is a danger to the State. I think the amendment is eminently reasonable, and I hope that the Senate will pass it, bearing in mind the particular nature of the section under discussion and the great power that is being put into the hands of the Minister for Justice.
The Public Safety Act which was passed in November made provision which entitled the Minister for Justice, in certain cases, to intern certain people. They were made very comfortable, but it is not proposed to make it very comfortable for persons engaged in activities to counteract which we have introduced this measure. A person ordered out is going to be treated in such a way that it will be easier for him to get out than to remain. Although what the Senator said is quite correct, the Seanad must view the exercise of the administration in connection with Section 13 in a correct perspective. The Minister can order anybody out, but it is most unlikely, having regard to the certain number of people there are in the country upon whom expulsion orders will be served, that the Minister will serve such orders lightly. He must have sound reasons for doing so. While the phrase here is "in the opinion of the Minister," there is more than the Minister's opinion involved in the issue of an expulsion order. The Minister must be satisfied, from information supplied to him, that there is a good case for serving an expulsion order on one of these individuals. It certainly is not the intention to make them comfortable here. This Bill is designed to prevent crime and to deal with persons engaged in conspiracy against the State. This country is going to be made too hot for them to stay in, and they had better either get out or stop their activities.
The Senator must remember that there is no Aliens Act in this country.
They are much worse than aliens.
No matter how terrible the Minister may make the punishment of some of the people he wants to deport he must know they will have to bear it through sheer necessity. It is obvious a number of them will not have anywhere to go, because, as I said yesterday, Great Britain and Northern Ireland will not have them; it is inconceivable America will have them, or that the American Consul will visa their passports; and I cannot conceive the British Dominions taking them. It means, therefore, keeping those persons in perpetual imprisonment with hard labour all the time, allowing for no degree in guilt and making one suffer the same as the other. There is the assumption that the Minister for Justice, whoever he may be, will in every case be right and will in no case serve an expulsion order except on a person eminently deserving of such treatment. Judges and juries have made mistakes on various occasions, and is it safe to assume that the Minister for Justice, above all a Minister who will declare openly that he is out for a wide and vigorous sweep, and who will have very little patience with arguments as to justice and reasonableness, will not make a mistake in some cases? There might be circumstances in which a District Justice or a Judge would not be disposed to inflict the full penalty. It might be the case of a woman. There are ladies in this country who have made themselves very prominent in politics. There are extremists amongst them, and they are not confined to one side. Of course there are women extremists who, like men extremists, are of a delicate disposition, and the state of their health probably accounts for their extreme views. In such cases it is rather inhuman to insist that the District Justice must in every case impose a sentence of six months' hard labour. I do not know whether it is a sign of strength on the part of a government or an assembly to excel in brutality. It may appear strong for the time being to do so, but looking back, one will see that it was a sign of weakness. Senator Gogarty being a surgeon and used to the knife would probably be inclined to bring the knife into public life to cut off an injured part.
It ought to comfort the Senator to know that this expulsion authority is to be embodied in an Act. Every other civilised country in the world, including Ulster, resorts to expulsion when it is thought necessary. Mr. de Valera, the Deputy for disaster, was given 24 hours to get over the Border, and he got out in good time. Thousands have been expelled from Italy, where there is no Act regarding expulsion. Anyone violating public order is put out. Senator O'Farrell spoke of lady extremists, but there is such a thing as an extreme supporter of law and order. I think it is time to get rid of all this undermining and of instigators of crime who do not come into the open. Probably some of the murderers of Mr. O'Higgins were boys of sixteen.
I hope the House will not lose sight of the fact that the person on whom this Order is served is allowed no chance whatever of disproving his guilt. The Order is served on certain persons and they have to leave the country, no opportunity being provided under the section whereby an innocent person may prove his innocence.
That is perfectly true; but the Senator should also bear in mind that no opportunity is denied persons for proving to the Minister their innocence. The Senator knows I am making a bull point here, and that representations are very often made to the Minister in respect of certain persons. The Senator knows that.
I cannot see the justification for allowing such a section. It is all very fine for the President to say the Minister will do this and that. It amounts to this, that all safeguards for the individual are removed under this section. The Minister, whoever he may be, and it may not be the same Minister next week as this week for instance, is to be allowed to hold all power of citizenship, life and death in his hands. I think that is an absolutely ridiculous proposition which should not be tolerated by any body of representatives of a free people.
Amendment put.
The Committee divided: Tá, 7; Níl, 27.
Tá
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- P. J. Hooper.
- John T. O'Farrell.
- Siobhán Bean an Phaoraigh.
Níl
- William Barrington.
- Sir Edward Bellingham.
- P.J. Brady.
- Samuel L. Brown.
- Mrs. Costello.
- John C. Counihan.
- Countess of Desart.
- James Dillon.
- Sir Nugent Everard.
- Michael Fanning.
- Dr. Gogarty.
- The Earl of Granard.
- Benjamin Haughton.
- Arthur Jackson.
- Right Hon. Andrew Jameson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Thomas Linehan.
- Francis MacGuinness.
- John MacLoughlin.
- General Sir Bryan Mahon.
- William J. Molloy.
- James Moran.
- Joseph O'Connor.
- Michael F. O'Hanlon.
- Bernard O'Rourke.
Amendment declared lost.
Section 14 agreed to.
SECTION 15.
I move:—
To add at the end of the section a new sub-section as follows:—
(2) Each member of the Gárda Síochána while acting under this or the next preceding section shall be in uniform or accompanied by at least one member of the Gárda Síochána in uniform."
This is a very reasonable and necessary amendment, because as the section reads at present citizens will be liable to be held up and searched by anybody, whether dressed in uniform or civilian attire. I think the least a citizen might ask for is that a person holding him up and searching him should wear the uniform of the force to which he belongs. I cannot see what good purpose is to be achieved by allowing the Gárda to search and arrest without warrant while dressed in civilian attire. There is a grave danger of innocent citizens being robbed and ill-used by evilly-disposed persons. I do not suggest that the Gárda would do that, but I say that this gives an opportunity for evilly-disposed persons to carry on their malpractices to a greater extent than would be the case if this power were not given. The amendment would safeguard the public to a great extent.
This amendment was also proposed in the Dáil, and I recited quite a number of instances which occurred, not only here, but in other countries—very well-organised countries—in which uniforms had been abused. We have had evidence of uniforms being abused in our own country, and if the mover of the amendment is a reader of newspapers he will recollect having seen where a gentleman called Koepenick, who was a bootmaker, some years ago reviewed a considerable portion of the German army. Then there is the case of another gentleman—I think he was an Irishman—who dressed up himself and a number of his friends in Drury Lane, and posing as a Sultan, paid a visit to a warship at Portsmouth, where he was entertained by the Admiral. There was another gentleman named Brown, who came to Dun Laoghaire some years ago as an advance agent of the British Fleet, gave orders to local tradesmen, and pocketed a good deal of money. He was subsequently arrested and convicted.
Then there was the case about eight years ago of an uneducated gentleman who visited a number of military posts and was entertained at each one of them. He was subsequently arrested and convicted, but the fact remains that he was able to carry out his inspection at the various posts. Ordinarily, when an arrest takes place a uniformed Gárda is present. Every uniformed member of the Gárda Síochána carries an identification card, giving his name and number. Every plain clothes detective carries such a card signed by the Commissioner. It is a disciplinary offence for a member of the Gárda Síochána not to have his card. The amendment will not make the safeguards any stronger than they are at present. The section is not any stronger than a similar section in the Arms Act of 1926, where power is given to a Gárda to arrest any person whom he suspects of being in possession of arms. If this section were not in the Bill, a detective officer passing a person whom he had good reason to suspect had unlawful documents on him, would not be in a position to take him into custody, examine whatever documents he had, or enter into possession of them. The amendment would weaken the section and introduce into the Bill an infirmity which it would be very difficult to rectify.
Has a member of the public a right to demand, before being searched by any person, to see his identification card?
This amendment affects not only Section 15, but Section 14, which gives a right to the Gárda Síochána to enter upon premises, by force if necessary, on the authority of a Superintendent. That is probably the more serious section of the two, because in troubled times breaking into houses is a common form of lawlessness. If, for instance, a person had a telephone in his house, and found people demanding admission, there might be time for him, perhaps, to give word to the police if he were sure these people had no authority to enter his house, as he would be if they were required to be in uniform. But if they are in civilian clothes and say they are members of the Gárda Síochána, by the time he is able to find out whether they are or not it is too late to give the alarm. Even if they have discs or identification cards of any kind, how is the ordinary citizen to know whether they are forged or otherwise? I never saw one of these, and I do not see that there would be much trouble in forging one of them. Unless there is a regular specimen made public, and it is not possible to copy it, I do not see what there is to prevent anybody from forging an identification card or disc and passing it on. The fact of having first of all to look at a man's card throws away all chance of seeking aid until it is too late. It is particularly is too late. It is particularly dangerous, where one is held up on the roadside, that you must take the word of the person that he is an officer of the law, because he can take away anything you possess, whether money or documents. You have no means of identifying whether he is an ordinary common robber or a member of the forces.
I wonder if the President would agree to accept the amendment with the insertion after "shall" of the words "as far as practicable." There was a somewhat similar amendment introduced into a Public Safety measure a few years ago, where it stated that in all searches and raids on premises the military would, as far as practicable, be accompanied by a member of the D.M.P. or the Civic Guard. That, at any rate, would encourage the force to wear uniform or to bring someone in uniform with them. It is a crime, under the Public Safety (Emergency Powers) Act, 1926, to wear the Civic Guard or any other uniform without authority, so that a person who goes out to commit a felony commits an additional crime by putting on uniform. He also gives himself away more if in uniform, and it is more easy to find him out. I do not think there is so much fear of the uniform being abused as the lack of it being abused to the detriment of law-abiding citizens.
The Deputy will recollect a prosecution of a person about twelve months ago who dressed in the uniform of a sergeant of the Gárda and presented himself with two others, also in uniform, at Mountjoy Prison, and was admitted to the Prison; so that there is no more protection in the uniform than in the discs. Even, although it is an offence, that will not stop its abuse occasionally. The maximum security that we can possibly give to the citizens has been given by means of the various regulations that we have in the Gárda. The uniform would not add anything to the security of the ordinary citizen.
Amendment put and negatived.
Sections 15, 16 and 17 agreed to and added to the Bill.
SECTION 18.
(Liability of Parents or Guardians of Certain Young Offenders).
I move amendment 8a: To delete the section.
Although I do not think there is much use in moving this amendment, still I feel bound to do so. My experience is that this section has created a great deal of concern amongst the public, and, my personal belief is, that it is based upon a misconception of the mentality of the people. The young people who go into these organisations believe they are heroes, and this section inclines to make them still greater heroes in their own eyes and in those of their comrades. In that way it will swell the memberships of these organisations. The section imposes an obligation upon parents exceedingly difficult of fulfilment. Even the most careful parents would find it very difficult to check those young people and to know whether they belong to those organisations at all. I, myself, not many years ago, was approached by parents whose son had been arrested by the National Forces to try and get him released. They assured me most positively, that they had no knowledge, and did not believe for a moment, that he belonged to such an organisation. All the circumstances of the case pointed that way. On inquiry, however, I found that that innocent-looking boy had engaged in a very serious ambush of the National Forces. Yet, if these parents had been put to it to prove that they had taken all proper steps to keep that boy out of this organisation, knowing all the circumstances, I say they would have found it very difficult to establish their innocence. Some parents will never suspect their children and, consequently, will not think it necessary to take any special steps to prevent them from joining such organisations. I think it would be better to trust to the natural desire of parents to keep their children out of trouble than to impose the penalties suggested in this section. I believe the result will not be to make evilly-disposed boys and girls well disposed, but to make them more ill-disposed and to make well-disposed parents somewhat ill-disposed.
The point that concerns the Executive in regard to this matter is, who is responsible for the control of children under 16 years of age? Now, if it is intended to place it upon the State I submit that is a derogation from family responsibility. That should be the concern of the parents. It ought to be, and it is the parents' duty, moral, as well as State, to look after their children up to 16 years of age. We come in with all sorts of penalties in respect of children. Is it good? It ought not to be State correction but parental correction, and if there is no other means of bringing home to the parents that this is their duty to their children, and to the State, some such section as this must be inserted.
We do not want to take delivery of the control of children. We have got enough to do to look after people when they have passed away from that age. It is the parents' duty, and if they neglect it, surely to goodness they ought to be punished. It is a terrible, a shocking neglect, and it ought to be brought home to them that they cannot continue in that neglect with impunity.
What the President says is all right in theory, but in practice it works out differently. Fancy the case of a man at work all day who has five or six boys, from ten to fifteen years of age, some of whom are not going to school and for whom there is no employment, knocking around the streets of Dublin. He could not possibly make himself responsible for what those boys do, nor could their mother. In Ireland during recent years children have established a certain very regrettable independence of their parents, because of the very wild times through which we have passed. It is well-nigh impossible to restore that as far as the present generation of boys of fourteen or fifteen years of age is concerned. In certain circumstances, where a parent has the duty of providing for his boys, for whom, unfortunately, there is no work, it would be impossible to make him responsible for whatever they may do.
During the recent election the son of a member of this House—I do not know what his age is, but he may not be more than sixteen—assaulted a Labour candidate and tried to put him off the platform. That is an example of liberty of speech. Would it be fair for that candidate to hold the father responsible for the deed of the son? I do not think anybody would say that the father should be held responsible in a case of that kind.
That is not affected by this section, which deals with unlawful associations.
If it is not unlawful to assault a man on a platform when he is making a political speech; if that should not be punished I do not know what should; I suppose it depends on who does it. What the President has said with regard to political organisations is equally applicable to any other form of illegal activity. A boy may belong to a robber gang, and there have been various gangs going about and robbing houses. Would it be fair to make the parents responsible for that?
They are being held responsible here as far as criminal political activities are concerned.
You might as well hold the parents responsible for any other form of unlawful activity, membership of a robber gang, or anything of that kind, and until you hold them responsible for the deeds of their children in respect of all illegal activities it is preposterous to say that you will hold them responsible for one form only.
Does the Senator want the section enlarged to meet that?
I should imagine that the Senator would rather chop off than add on. In any case, he does not take matters seriously. He might poultice it, but people are inclined to chop off where other people are concerned and poultice where they are concerned.
I was taking what the Senator said seriously, and I was asking if he wanted to include responsibility for all the acts of the children.
Amendment put and declared lost.
Sections 18, 19, 20 and 21 ordered to stand part of the Bill.
SECTION 22 (1).
As soon as may be after every occasion on which this Part of this Act comes into force there shall be established by the Executive Council one or more tribunals (in this Part of this Act referred to as special courts) consisting of three or more members of whom one (who may be or not be an officer in the Defence Forces of Saorstát Eireann) shall be a person certified by the Attorney-General to have legal knowledge and experience and the others shall be officers of the Defence Forces of Saorstát Eireann not below the rank of commandant.
I move:
To delete all after the word "one" in line 49 down to the end of the sub-section and to substitute therefor the words "shall be an ordinary Judge of the Supreme Court and two shall be Judges of the High Court."
This is an important amendment, because it deals with the composition of the proposed special court. The Bill as originally introduced gave the Government an alternative form of special court, a court to be composed of three members, of whom one was to be an ordinary Judge of the Supreme Court and two Judges of the High Court. My amendment proposes to give that as the one form of special court. This was struck out of the Bill on the motion of the Government, and they were then confined to a military court, one member of whom should be certified by the Attorney-General as having some legal knowledge. I would prefer to have the legal gentlemen of this House deal with a matter of this kind, but lawyers are evidently a very close trade union and do not believe in giving very much of their advice free. They have taken no part in the discussion on this Bill, on which they might be exceedingly helpful, although they did take a very prominent part in the discussion on currency and matters of that kind, where the help of financiers would be useful.
When one deprives a man of the right of trial by jury, whatever his offence may be, I think all reasonable steps should be taken to see that the alternative court is at least a competent court, a court capable of deciding on proper lines of procedure in regard to evidence and one that should be able to assess the value of evidence in passing sentence. It is an extraordinary proposition in this Bill to bring in the Army at all. This is not a case of open fighting; it is not a case of civil war, or anything approaching it. It is merely a case of hunting down and arresting criminals by the Civic Guard and then handing them to military officers to be tried and to be sent to the scaffold if necessary. The only obstacle between them and the scaffold is another military officer, who is merely to confirm what the court has done. I think that that is quite an unjustifiable proposition. I understand that one of the objections has been that the judges would be afraid to administer the law, or if they had the courage——
May I say that nobody has said that, in my hearing or outside my hearing.
I am glad to hear that. I was only stating what I understood to be the opposition. Or, I should say, that having administered the law, they might, at all events, incur the disfavour and the displeasure of a section of the community, and that in that way our courts would be made as unpopular as the courts which preceded them under the British régime. I do not know if that is the Government's view. I hope it is not, because we are told, and it is a fact, that that section of the community which will most likely be affected by this Bill is a very small and insignificant section, and that our courts should not be merely wiped aside and ad hoc and junker courts be set up, merely to retain the popularity of the regular courts in other respects. One would like to know what the objection is to having this special court composed of competent judges. Is there any genuine objection, unless they fear that they will not administer justice with sufficient severity? I can see no other genuine reason for it. It is an unheard of thing in ordinary conditions at least, with no civil war obtaining and nothing approaching civil war, to set aside the courts and set up military officers in their place. I do not care how competent the military officers may be as military men. They are not judges, they are not lawyers, they were never intended to sit in a court of justice, and why should they try somebody arrested by the civil authorities, and who should normally be tried by the civil courts? These people may not have committed any acts of violence, good, bad, or indifferent, against the Army. They may simply belong to a suppressed association. Fancy bringing men of that kind before two military officers, giving them the right of trying them, to sift the evidence before them and apportion sentences. You might as well bring in a butcher or a carpenter to operate for appendicitis, and he would be more competent. I do not know what the legal authorities, so far as one can get their views in matters of this kind, think of them, but I think, in the interest of justice, in the interest of the lawyers, and of the great profession to which they belong, they should make their views clear in matters of this kind and not allow themselves to be silenced by the incidents which I mentioned at the beginning of this day's deliberations.
This amendment provides something that originally was in the Bill, and I explained in the Dáil that it was not in the Bill as ordered to be drafted by the Executive Council. We held certain meetings of heads of Parties—other people have given away that information, so that I am not breaking any confidence when I say that—and during the discussions that took place there, and subsequent to them, the purport of this amendment was inserted in the original Bill. It would not have been inserted if it had not been for these meetings of heads of Parties. If I might digress for a moment, I should say that the reason for the holding of these meetings was that we were all satisfied that a crisis had arisen in the country, and that it would be very good for the State if the maximum amount of support could be given to a measure to deal with those who were responsible for bringing that crisis about. I was subsequently informed by my advisers that the putting in of two Judges of the High Court and a Judge of the Supreme Court to discharge the duties of this court was never contemplated by those Judges in the terms of their appointment, never contemplated by them under the Constitution, that they had never at any time contemplated being called upon to decide any issue of life and death. That is a matter for a jury, and it would be unreasonable, on the part of this Executive, at any rate, to ask any of our Judges to function in such a manner. This Executive will not do it. It cannot do it. It is foreign to its policy in connection with the setting up of our courts. The judiciary is independent of the Executive, and has been from the first. I hope it will always remain so. I think that one of the best things we have done during the course of our administration is that it should be so independent. It will not be regarded as independent if at any time such an amendment as this were to be passed into law.
It would, of course, be open to the Oireachtas to put in three Commissioners. Let us understand what the position would then be when the Act passes out of operation, and let us understand what the position of the Commissioners would be. It is said that this is unfair to our Army officers. They have done duty much the same as this already, and no injustice has been done to anybody. There is this difference with regard to the circumstances, that at that time there was a state of civil disturbance, and I put it to the House whether the circumstances are altogether different when four or five young men seize motor cars and go out and assassinate a Minister of the State —whether, as far as they are concerned there is much difference between the events of five years ago and the events of a few weeks ago? There is not a great deal of difference. Might I remind the Seanad that these courts will not be set up automatically, that a proclamation must be issued, that both Houses of the Oireachtas have to be called together, and, I presume, a statement must be made which will satisfy both Houses that an occasion has arisen for the establishment of these courts.
I explained in the other House and here, yesterday, that some attempts have lately been made to interfere with juries. They are simply on a par with the other attempts that have been made to bring down the State. Interference with juries will not be tolerated. Every time an attack is made upon a great institution of the State, the State must respond to that attack. That is a complete reply. We have made provision for a tribunal which will be fair, which will be just, which is not of the type which distinguishes the present method of effecting justice, and which will be effective in bringing home to these people the fact that they will not be allowed to attack the State with impunity.
At the outset the President gave reason why this Bill was altered as compared with the Bill as introduced. I do not know if the President has given exactly the correct reason. I think a more correct reason would be that, because the Government did not get its way with regard to the proposals, there was a determination to make the Bill more drastic. I think that would be the correct reason.
That statement is not true, and I should say, as the Senator has said so much, that at these meetings I got no intimation that there would be much more than opposition— even opposition. We have certainly got marked hostility.
Criticism of the measure has made the Government determined not to listen to reason at all, but to make the Bill, if possible, more drastic than it was. That is the spirit in which this Bill has been largely approached, and that is the spirit in which this House is asked to approach it. But that does not relieve Senators of the responsibility of at least voicing the views of the people on questions of this kind. The President also talks about the independence of the courts. Is it not a farce to talk about the independence of the courts when you state that the moment you want a particular type of justice administered, when you think the courts might be too meticulous in regard to evidence and so forth, they are wiped aside and military junkers are brought in in their place? The President also made a very remarkable statement when he asked if there was a material difference between the condition of affairs now and five years ago. If there is not he and his Party have been humbugging the country, because they have been telling the people and boasting about the restoration of law and order, and of the fact that everyone can go about his business in the ordinary way. I do not think that anyone has been disposed to take from their credit there. The President stated now, after all, that the country is practically as bad as it was five years ago. It could not possibly be as bad. Five years ago we had no courts of justice even in existence. We had what were called Sinn Fein courts—amateurs. We had no police force. There was no army except an armed rabble. There was chaos throughout the country, but the President, just for the purpose of his argument, says the position is as bad as it was five years ago. This or some other Government will be looking for a National Loan shortly. Is the President prepared to stand by that statement, and does he think that, for the sake of gaining a mere point, it is wise to make a deliberate statement of that kind? I know he says it simply because he is inclined to say things too quickly without thinking about them. But that certainly is one of the things he should not have said for the mere sake of scoring a point.
When the Senator was taking down what I said, I think he took me down wrongly. If he writes shorthand, he should endeavour to write it correctly.
I did not write it in shorthand.
The Senator has used a term which, in his more reflective moments, I am sure he would be sorry to see on the records. He mentioned the words "military junkers." I am sure he has greater respect for the officers of the Army.
The Senator ought not allow that to remain on the records.
Owing to some observations made by Senator O'Farrell, I desire to say a few words. As a lawyer, I view with the utmost dislike the setting up of military courts. Their existence and their operation can only be justified by a state of absolute emergency. I would have opposed these provisions of this Bill if it were not for the safeguards to which the President has just referred. If a military court is set up in this country, this House would have the responsibility. No military court can be set up without a proclamation, and no proclamation can be made without calling together both the Houses within five days, and each of these Houses will have the responsibility for the setting up of military courts. If the two Houses are satisfied that such a state of affairs exists in the country as justifies and calls for military courts, then my objection as a lawyer is gone.
Amendment put.
The Committee divided: Tá, 6; Níl, 28.
Tá
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- P.J. Hooper.
- John T. O'Farrell.
Níl
- William Barrington.
- Sir Edward Bellingham.
- P.J. Brady.
- Samuel L. Brown.
- Mrs. Costello.
- John C. Counihan.
- Countess of Desart.
- James Dillon.
- Sir Nugent Everard.
- Michael Fanning.
- Dr. Gogarty.
- The Earl of Granard.
- Benjamin Haughton.
- Arthur Jackson.
- Right Hon. Andrew Jameson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Thomas Linehan.
- Francis MacGuinness.
- John MacLoughlin.
- General Sir Bryan Mahon.
- William J. Molloy.
- James Moran.
- Joseph O'Connor.
- Michael F. O'Hanlon.
- Bernard O'Rourke.
- W.B. Yeats.
Amendment declared lost.
When I used the word "junkers" in regard to the Army, I used it in the abstract sense in which people are accustomed to use it where military people are asked to do legal work. I meant no offence to the National Army. I am a sincere admirer of the Army, and soldiers of the National Army are persons for whom I have great respect.
I desire to move the following amendment:—
Section 22, sub-section (1). To delete in lines 50-51 the words "person certified by the Attorney-General to have legal knowledge and experience" and to substitute therefor the words "practising barrister or solicitor of not less than five years standing or shall be or have been a Recorder or County Court Judge in Ireland, or a Judge of the Supreme Court, High Court or Circuit Court, or a Justice of the District Court."
I have taken this amendment from the Public Safety (Emergency Powers) Act of 1926. Under that Act people could be interned. There was an Appeal Board then set up to which they might appeal and endeavour to establish their innocence and secure release, One member of that Board was to have the qualifications set out in this amendment. The late Minister for Justice thought it necessary to put in these qualifications. I am sure he had good reason for doing it. A similar description is given in the Courts of Justice Act, 1924. Why the description has been altered in this measure I am quite unable to say. I think it is desirable that similar qualifications should apply in this case. I do not know whether legal Senators have any views on the matter, but it is desirable that a man should have some standing as a solicitor or barrister, that he should not be merely a man with experience extending over a week, when it comes to a matter of life or death, and where the liberty of the citizen is involved.
An individual just called to the Bar, just qualified, or a solicitor with a week's experience, and, in fact, a solicitor's clerk could be appointed under the terms of the Bill. Sometimes, perhaps, a solicitor's clerk might be better than a solicitor himself; it would be the exception rather than the rule. What was good enough for a Bill last year, introduced by a Minister who had a lot of experience in matters of this kind—and, notwithstanding that he always took stern measures, he, at least, gave them a good colouring as being legal, and he always took care that those called upon to administer the law should have some legal training—should be good enough now.
This is a somewhat different amendment from the one moved previously by the Senator. In the present case I think there is a good deal to be said for the principle underlying the amendment. There are some portions of it that I would not be able to go so far upon as Senator O'Farrell. If I understand the amendment correctly, it seeks to remove the discretion altogether from the Attorney-General and to insist that barristers or solicitors who seek to be appointed should be practising barristers or solicitors. I would not for a moment defend the proposal to remove the discretion of the Attorney-General, who, we must assume, will appoint the man best suited to the office, nor would I support the amendment if the Senator insists that he must be a practising barrister or solicitor, because we all know there are barristers in the Civil Service whose experience and knowledge of law is very much greater than that of some practising barristers and solicitors. If his amendment will have the effect of excluding such officers, I could not support it.
There is something to be said for one member of the military court being a barrister or solicitor. It may be that my colleagues will not thank me for seeking to impose the responsibility involved, as there will be a responsibility involved in connection with these courts; but it seems to me not unreasonable that one of the three members of the court should be a barrister or a solicitor, with regard to whose legal knowledge and experience the Attorney-General is satisfied. If Senator O'Farrell modifies the amendment in the direction of the suggestions I have made, I would be prepared to support it.
I am quite prepared to withdraw the word "practising." I merely put it in because it was introduced in last year's Act. I would be prepared to alter the amendment to read accordingly; and would, of course, leave the discretion to the Attorney-General.
And also leave out that portion about appointing Judges or Recorders.
CATHAOIRLEACH
Then what would be left? If the Attorney-General is to certify he is a man with legal knowledge and experience, that would cover all the needs you mention.
Not necessarily. Take the case of the removable magistrates under the old regime. I say the area of his discretion should be confined to barristers or solicitors.
CATHAOIRLEACH
They would include Recorders, Judges of the High Courts and Justices—they are all barristers.
One of the old Justices of the Peace might be appointed.
I would like to draw the Senator's attention to this: "Persons certified by the Attorney-General to have legal knowledge and experience." When an Attorney-General is appointed we do not enter into possession of him absolutely. He is an independent man. He will not certify certain things on the mere asking of the Executive Council. He must be satisfied, and he has exactly the same position in giving judgment, or an opinion, if I might say so, as a layman or as a judge on the bench. He has something on record; his name stands over it. Any person appointed to one of those courts has, we might say, the imprimatur of the Attorney-General. The Attorney-General is a very independent-minded person, as I have experienced within the last five years. We have had three Attorneys-General, and consequently I have had some experience of them. "Of whom one shall be a person certified by the Attorney-General to have legal knowledge and experience." If these words are in, whether or not the Senator's amendment is in, he is not restricted in any sense from appointing any one of those persons. He is not restricted from appointing a barrister, a solicitor or a judge of five years standing.
Could he appoint a person who might be neither a solicitor nor a barrister and yet have legal knowledge and experience?
It would be impossible for him to appoint a person of legal knowledge or experience who was not a barrister or a solicitor.
Why is it necessary to put a certain definition into Bills such as was introduced in the Bill of 1926? It was not put in for nothing. Why must we always assume that the Attorney-General and people of that kind are safe and can do nothing wrong? Are not laws laid down to guide judges as well as to guide the Attorney-General? Must we not give some sort of protection to the prisoner? Has the prisoner no voice—has he no right to claim justice at the Bar of this House and to see that we should guarantee that sufficient legal knowledge or experience will be in possession of the man appointed? We are told the Attorney-General is perfect and could not possibly do anything wrong. We assume all the people to be saints.
Undoubtedly the late Minister for Justice thought it was necessary to put in a definition such as was put in the Act of 1926. I at least would be prepared to follow him in that respect, and to say that there should be some sort of definition put in to guide the Attorney-General and to leave him with a discretion as to who he would select; at least to say that they shall be from amongst certain ranks and not quacks. I am not assuming that the present Attorney-General would do anything of the kind, but as the Bill stands men without legal knowledge and experience could be appointed, and that certainly would not be right. It would not be proper to have men without legal knowledge or experience presiding over courts where men were on trial for their liberty. That is not done in the courts where people are tried for ordinary crimes, and therefore I think a prisoner who is being tried under this Bill should have some protection.
Would it meet the case if a phrase were inserted to this effect: that he should be a person certified by the Attorney-General as having professional knowledge and experience? An amendment to that effect would ensure that he was a qualified solicitor or barrister.
CATHAOIRLEACH
Personally, I think this is the strongest protection that could be given and much better than if you were to enumerate that he should be a member of the profession, because members of the profession are not necessarily expert in their profession. If you compel him to be a person whom the Attorney-General certifies to be a man of legal experience and legal knowledge you go further than any of these other provisions have gone.
I would remind Senator O'Farrell that it is not necessary for the Attorney-General to be a saint in the discharge of his duty, which is one of very great responsibility.
He is a member of the Government for the time being and you leave him with an absolute and complete discretion.
He is not in a sense a member of the Government. I would like the Senator thoroughly to understand that legal people have very great responsibilities, and in the office of Attorney-General I should say very much greater responsibilities than those of Ministers. The profession is almost at stake in connection with certain decisions that they must come to.
Amendment put.
The Committee divided. Tá, 5; Níl, 23.
Tá
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- John T. O'Farrell.
Níl
- William Barrington.
- Sir Edward Bellingham.
- S.L. Brown.
- Mrs. Costello.
- John C. Counihan.
- Countess of Desart.
- James Dillon.
- Sir Nugent Everard.
- Michael Fanning.
- Dr. Gogarty.
- Earl of Granard.
- Benjamin Haughton.
- Arthur Jackson.
- Right Hon. Andrew Jameson.
- Patrick W. Kenny.
- Thomas Linehan.
- John MacLoughlin.
- William John Molloy.
- James Moran.
- Joseph O'Connor.
- Michael F. O'Hanlon.
- Bernard O'Rourke.
- W.B. Yeats.
Amendment declared lost.
Section 22 and 23 agreed to.
SECTION 24. (2).
(2) The confirming authority shall be an officer of the Defence Forces of Saorstát Eireann nominated for the purpose by the Executive Council and not below the rank of colonel.
I move amendment 11:—
Section 24, sub-section (2). To delete in lines 18-19 the words "an officer of the Defence Forces of Saorstát Eireann" and to substitute therefor the words "a Judge of the High Court."
Under Section 24 sentences passed by a special court have to be confirmed. The special court is to be composed of two officers not below the rank of commandant together with this alleged legal person. Their sentence is to be approved or confirmed by another military officer who is not to be below the rank of colonel. It is really carrying procedure to a farce to think that a colonel in the Army will have any more legal knowledge or experience than a commandant. I think it is laughable.
He will have more responsibility.
The Senator says he will have a greater sense of responsibility. It is hard luck on a prisoner if his only hope is that of going from a commandant to a colonel. My amendment seeks to provide that the confirming authority shall be a Judge of the High Court; that, at least, before a man is sent for execution or to penal servitude for life or to any sentence of that kind, the sentence shall be confirmed by a Judge with some knowledge of the criminal code, of a prisoner's rights, and so forth. Sending the sentence of the court for confirmation to a colonel is only a make-believe and might be cut out for the sake of common decency. What can a colonel know who has not heard the evidence? Can he know any more than those who have tried the case? It is only on a matter of law that there will be any object at all in asking for confirmation of sentence of the court. You will have two commandants sentencing a man, and then you go to a colonel to ask him to confirm the sentence. What does he know that the officers who have tried the prisoner do not know? The only protection that I can see for the prisoner is that the confirming authority should be a lawyer of experience or a Judge of the High Court. In my opinion the confirming authority should be a Judge of the High Courts, but I do not really mind what other alternative is suggested so long as the confirming authority is a person experienced in the law. I suggest to the Government that they should not carry on the farce, seeing that the prisoner has been tried by two commandants, of saying that the confirming authority should be a colonel.
The Senator, I think, does not quite understand the position. The fact is that the colonel will have a legal assessor, and it is not, as the Senator suggests, a farce. It is a very serious business. The colonel will have the assistance of a legal assessor, and officers holding the rank of colonel do not take their responsibilities lightly. They have very onerous duties to perform, and they have just as much respect, perhaps more, for life than the people who criticise them.
As far as knowledge of law is concerned, the legal assessor will be able to advise on all these matters. I would like to direct the Senator's attention to Section 26. It is a very important section, and was put into the Bill in the Dáil on representations being made that there should be a confirming authority. We have had experience already of a confirming authority during the Civil War period. The exercise of the duty of that confirming authority was very onerous. They discharged their duties certainly with great credit to themselves and, as I have already said, there is a real respect for human life amongst officers of the Army.
Amendment put and declared lost.
Amendment 12 not moved.
Question—"That Section 24 stand part of the Bill"—put and agreed to.
SECTION 25.
The following amendment stands in my name:—
Section 25, sub-section (1). To add at the end of the sub-section the words "or penal servitude for life at the discretion of the special court."
When I put down this amendment the section seemed to me to be a drastic one. I understood that there was to be no possible appeal there. I understand now that the Executive Council, through the Minister for Justice, is kept in close cognisance of such decisions, and I have the fullest confidence as a result. The record of the Executive Council has been most satisfactory up to this.
Amendment not moved.
Question: "That Sections 25, 26 and 27 stand part of the Bill"—put and agreed to.
Amendment 14 not moved.
Question: "That Section 28, the Schedule and the title stand part of the Bill"—put and agreed to.
The Seanad went out of Committee.
Bill reported without amendment.
