Seanad Éireann debate -
Thursday, 4 Jan 1940

Vol. 24 No. 5

Emergency Powers (Amendment) Bill, 1940—Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Sir John Keane

I move amendment No. 1:—

Before sub-section (3) to insert a new sub-section as follows:—

(3) Paragraph (k) of sub-section (2) of Section 2 of the Principal Act is hereby amended by the addition at the end of the said paragraph of the words:—

Provided that no natural-born Irish citizen shall be detained until the relevant facts have been laid before a judge of the High Court and such judge concurs in such detention.

I intend to be very brief on this amendment, but I am very seriously concerned by the rather light-hearted way in which some people think you can suspend the Habeas Corpus Act. The Habeas Corpus Act is really the basic charter of individual liberty, and countries with far more experience than we have and a long record of democracy proceed with the utmost caution in this matter of a suspension of the fundamental right.

I think I am right in saying that the Habeas Corpus Act is not suspended to-day in Great Britain, although that country is at war, and I think I am also right in saying that, during the coercion times here, the Habeas Corpus Act was not suspended. Yet we intend to suspend it. I will not say that there are not certain circumstances in which it is justified, especially in the very ill-informed and undeveloped state of public opinion in this country, where terrorism abounds, where you cannot get evidence and where juries will not function, but I should not like to give power to the Government to evade trial where there is adequate evidence, and I am afraid that is what will be done. It is far easier to lock people up than to take steps to procure all possible evidence and to test the matter in the courts. Incidentally, I should even prefer secret trial, trial in camera, to this method of detention. I should prefer anything to avoid this method of detention. The object of the amendment is to secure that a judicial examination will be brought to bear on the evidence available and a decision taken that the evidence is inadequate to go before a court, before this power of detention is applied. I should like to see the dossier on which the case is to proceed sent to a judge of the High Court, and unless the judge is satisfied that the evidence is inadequate for a court, and there is reasonable ground for internment, the case should proceed.

Mr. Boland

I cannot accept the amendment. The whole point about internment is that there is not sufficient evidence to get a conviction. There is the safeguard provided in this Bill that in the order which will be laid before the House, a commission will be set up before which any person who feels that he has been wrongly detained or interned can appear. That is a safeguard, but to say that before we intern anybody, we should lay the facts before a judge of the High Court would simply mean that the thing would be unworkable. There must be promptness of action in these cases, and you must have power to arrest and intern a man with promptitude. The Senator may have no doubts that if we have the evidence, we will prosecute.

I cannot say any more than to assure the Senator that if we get evidence on which to convict these people in all cases, we will bring them before the special court and prosecute them, but to ask us to set all the facts before a High Court judge, before we proceed to detain anyone, would simply be making the thing worthless. There is that provision there, as I say which, I am sure, will be found in practice to work very well—a commission of three people who will hear any appeal that any interned person may wish to make against his internment. I think that is quite adequate. It was the provision made by the previous Government in three Acts of theirs dealing with this matter and incorporated in the permanent Act of 1926. I think it is quite sufficient, and I cannot accept the amendment.

Sir John Keane

Am I to understand that the commission is to be set up to work under the Emergency Powers Act as well as under the permanent Act?

Mr. Boland

Yes.

Sir John Keane

I am not altogether satisfied, but I do admit that the commission is a safeguard, although I think there will be a great temptation to evade trial and to use the power of detention, but under the circumstances, the responsibility rests with the Government and I do not intend to press the amendment.

Amendment, by leave, withdrawn.

Amendment No. 2 not moved.

Section 2 agreed to.

Sections 3 and 4 and the Title agreed to.

Bill reported without amendment.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. M. Hayes

May I make one point on that, Sir? Some doubts were raised during the debate here whether this Bill will be deemed to be in accordance with the Constitution. That point was not made for the purpose of discussing the Constitution nor in the hope that there was a flaw in this particular Bill. I think that it may be taken that those of us who spoke in favour of the Bill to-day hope that the measure is in accordance with the Constitution. There is just one other point which is a very important one. The question was raised this evening. This Bill arises out of a judgment given in the courts, and it was stated this evening by the Taoiseach that there was no objection in Parliament to saying that a judgment of the courts was wrong. It is a rule of Parliamentary debate observed here and in the other House and in every other House, that the judges cannot be criticised. The Ceann Comhairle expressed the view yesterday afternoon that judges should not be praised lest anybody should afterwards attempt to criticise. That state of affairs does not depend on any particular ruling. The Taoiseach suggested that it was a rule made by me. It was not made to-day or yesterday. It rests, in our case, on the Constitution, on Article 35. Article 35 says, in Clause 2:

All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

If they are independent in the exercise of the judicial functions, then they should certainly be free from criticism in this House or the other House. While to obey the judge's decision is certainly to obey the law, I think it is a misconception on the part of the Taoiseach to suggest that it is open to us in this House or the other House to criticise the decision. It is not. You can say that an Act has a meaning which neither the Government nor the Parliament intended it to have, but to say the judge is wrong is to go on a line that will bring judgments into debate by way of criticism. That is a very bad thing, and I hope that the matter will be reconsidered and that the procedure followed to the present in both Houses will be preserved.

Mr. Foran

It is not our intention to call for a further division on the Bill, but I want to explain, as there seems to be grave uneasiness on the part of the Minister present at the attitude of the Labour Party towards this Bill. We want to assure him that he need have no misgivings as to the attitude the Labour Party will take up in any case where the freedom and the rights of the people are concerned. We realise that this Bill takes away a fundamental right from Irish citizens—the right to trial—and consequently we are opposing it. We are opposing this or any other Government having the enormous powers that this Government gets under the Bill. Governments with such powers are inclined to use them, as we know, on very minor occasions. They have interpreted ordinary everyday affairs as a menace to the State and use their powers against trade unionists or workers struggling for their rights. We realise that and we opposed the Bill early on as we have opposed all these measures consistently all the way through. We will continue to do that. That is our attitude to the Bill and that is our object in voting against.

Cathaoirleach

Having made his position clear, Senator Hayes will, I am sure, be in agreement that the matter should now be left over for consideration by the Committee on Procedure and Privileges.

Mr. Hayes

I do not think there is anything, Sir, for the Committee to consider. I think the matter is covered by the Constitution.

Cathaoirleach

In the opinion of the Chair, reference to a court decision in explanation of legislation is permissible.

Mr. Hayes

In explanation, certainly.

Question put and agreed to.