On the section, would the Minister tell me why it is necessary to make the special regulations referred to in relation to these places of detention? I thought there was a whole code of regulations in existence dealing with prisons and camps. Why, therefore, is it necessary to take power to make further regulations?
Offences Against the State (Amendment) Bill, 1940—Committee and Final Stages.
Sections 1 to 6 inclusive, agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
The regulations that the Senator refers to deal with the ordinary prisons to which persons sentenced by a court are sent. The regulations in this Bill are intended to deal with persons interned, an entirely different matter. That is why different regulations will apply.
Question put and agreed to.
SECTION 8.
(3) Any person who is detained under this Part of this Act may apply in writing to the Government to have the continuation of his said detention considered by the commission, and upon such application being so made the following provisions shall have effect, that is to say:—
(d) if the commission reports that no reasonable grounds exist for the continued detention of such person, such person shall, with all convenient speed be released.
I move the following amendment:—
In sub-section (3) (d), line 56, to delete the words "for the continued detention of" and substitute therefor the words "to detain or to withhold from trial."
I do not like to leave this vital question without further examination, because it really is vital. I admit that the security of the community is all important. It is equally important to do justice. This question of individual liberty is fundamental to all civilisation.
The present European conflict is governed by it. See what lengths you can go to when you depart from it. I am sure many Senators have read the reports of the atrocities that can and have taken place when peoples depart from this very sacred right of warrant, arrest, trial and all the rest of it. I do not say that we are going to have anything like that here, but I would ask the House to be on its guard. Before it tampers with this sacred right, the House should be perfectly satisfied that it has got every reason for doing so. I submit it should only do so in the very last resort. I am not altogether satisfied that we are not going further than is necessary in this.
The Minister made the point earlier that nobody is to be deprived of his liberty except by process of law. Surely it is not enough to say it is the law. The Minister himself would not like to be a party to a law that gave the Government arbitrary powers, and if it was the law it would be in accordance with the Constitution. In these matters you have to go back to essential justice, to the concrete fact, and not rely merely on the statement that it is the law. After all, we are the lawmaking authority, and there is a responsibility on us to see that the law affords full and adequate liberty to the individual. In connection with this, I was rather interested to find the Minister reading for the House Article 40 of the Constitution, clause 4 (1): "No citizen shall be deprived of his personal liberty save in accordance with law." I observed that he did not go on to read sub-clause 2, which embodies the whole of this right of habeas corpus. I do not want to get involved in a legal point, but I imagine that it was on that sub-clause that the judge gave the decision, which has given the Government all this trouble.
It may be said that I am looking at this from the point of view of a West Briton, and that I am making too much potter about this sacred right. We had a discussion on these Bills about a Gaelic civilisation in this new State, but surely we all know that the whole of our functions as regards government, rule of law and everything else is conditioned by British methods. We are really a daughter of the Mother of Parliaments. Is not our whole procedure, our code of law really, in essence, governed by British practice? There is no getting away from it. What we possess in the way of fundamental justice, liberty and right in this country all has its roots in rights that were won hundreds of years ago in Great Britain. All that has gone to the Dominions. We are not a Dominion, but whatever we are in the Commonwealth of Nations, we have it, too. It has gone to almost every country in the world that has freedom, as we understand it—civilised freedom.
Nach raibh dlíthe Gaedhealacha againn in Éirinn sul a tháinic na Sasanacha?
Might I have that remark interpreted? In any case, Sir, it is really important not to be lighthearted or jocular about this matter. The purpose of my amendment is really this: the Minister takes power to arrest on suspicion. In the belief that someone is going to do something wrong, that person can be detained. I think probably it is necessary in the first instance to concede that right. Having conceded it, we want to hedge it round with all possible safeguards, and that is what I want to do by this amendment. I admit that the security of the community is the first consideration, but only second to that is the right of the individual to justice. The Minister acts on suspicion, and as far as that is concerned I am satisfied that the commission can review his acts. Supposing the commission has ample evidence that a person is going to commit a crime, has ample evidence of wrong-doing on the part of the person detained, is he justified in withholding trial from that person? That is what I want. That is the essence of my amendment. I think if there is sufficient evidence to satisfy a special tribunal, that person should be put on trial.
Now there will naturally be a great temptation on the part of the administration—we know that when we are on the brink of a civil war people get panicky and judgments are liable to be rash—to avoid trial with all its inconveniences and have recourse to detention. I feel that the Minister's action in that matter should be subject to review. If this power to arrest and detain a person on suspicion is to be subject to review why should not the power to withhold from trial be also subject to review? All I am asking is that if this commission is satisfied that there is evidence for a trial, within a certain period the person should be put on trial in the ordinary way. I am only asking that the commission should have power to order the person to be put on trial. I can see no injustice in it, nor can I see in it any peril to the community. It is simply bringing a second opinion to bear upon the Minister's administrative function. He concedes it in the first case; why should he not concede it in the second? That is the purpose of my amendment.
This is further reaching even than the immediate necessities of the case; it is most important for the future. It is most important for the preservation of the civic spirit. It is most important, in order to mobilise this rather nebulous thing we call public opinion, that we should use the machinery of the courts to its fullest extent.
Once you make it easy to depart from that, you are setting back, stunting, and delaying the political education of this country. The political education of this country, I submit, is still in a very immature state, and in this crisis we are going through to-day we are doing a great deal to develop that political education. We made a great step forward in it yesterday in the speech that the Taoiseach made. I do not want to arrest that political development, that sense of public responsibility, and I feel that you will do it if you take power to detain people when they should be tried, and when there is on the face of it prima facie evidence which would satisfy a grand jury and similarly would satisfy the commission set up under this Act. I should also like to ask the Minister what will actually be the procedure of this commission? I take it, of course, there will not be any publicity, but I should like to ask whether persons appealing to the commission will have the right to employ legal advice, to employ counsel, and have the usual skilled assistance that prisoners have on those occasions? I hope nobody is going to tell me that I am putting up a plea for the I.R.A. I am not. I am putting up a plea for something which is far more sacred than anything else, that is, the fundamental right of liberty, and I am not at all happy that some people should feel so light-hearted about anything so sacred to civilisation.
I rise to second the amendment proposed by Senator Sir John Keane. I support it in the interests not merely of the Minister himself and his administration but of that great principle to which we all subscribe, the rule of law. There is some parallel in the administration of justice to this provision for which Senator Sir John Keane pleads. In the initiation of a criminal charge, as we all know, depositions are taken before a peace commissioner, or sometimes before a justice in special circumstances. That is the preliminary or preparatory stage to determining whether or not the case shall go to trial in the court. In this thing, which is much bigger and of much more momentous importance, the Minister issues a warrant for the arrest and detention of a suspected person. Mindful of our Constitution's provision of habeas corpus, and the method of dealing justice in accordance with its spirit, this Bill provides in one section that a person so detained as a suspect shall be furnished with a copy of what it is he is charged with. He then knows on what grounds he is arrested and detained by the Minister, and what case he has got to meet. That section is of incalculable value in the preservation of individual personal liberty.
It takes away from this procedure what otherwise would appear to have some character of the Bastille methods which made the French Revolution necessary. Further, the Minister, having furnished the suspect with an account of what he is charged with, in order further to secure public confidence, to allay public anxiety and give the fullest assurance that there is nothing of what is called the bully's method, sets up a commission, a dispassionate commission, of men with experience of life, law, and of cases of the type to be dealt with. This section says in its sub-section (3): "The commission shall inquire into the grounds of such person's detention and shall, with all convenient speed, report thereon to the Government." The section goes on to say that: "The Minister for Justice shall furnish to the commission such information and documents (relevant to the subject-matter of such inquiry) in the possession or procurement of the Government, or of any Minister of State as shall be called for by the commission."
Nothing could be fairer. The spirit of justice animates this provision. All that was in the mind of the Minister, all that worked upon him to make his decision to issue his warrant for detention will be put before that commission frankly, and if more evidence has come into the possession of the Minister who issued the warrant, or of the Government as a whole, the commission has power, observe, to call for the Minister's production of it to aid in its inquiry into the rightfulness or otherwise of the person's detention. I need hardly stop to point out that this gives a high status to the tribunal and that it is clear as crystal that the purpose of setting it up and of making these regulations with regard to its scope is that it shall not be said that the Minister in issuing his warrant was merely actuated by a suspicious propensity, or that his view was warped, that, in short, he had not acted fairly in arresting and detaining the suspect. This dispassionate body is set up. It gets all the information that the Minister had, and is informed of the grounds upon which the suspect is detained. To what end? That the commission may report.
This section under immediate discussion provides that where no reasonable grounds exist for the continued detention of such a person he shall with all convenient speed be released. But, according to the contention of the mover of the amendment—and I subscribe to it—they may then be in a position to do more, perhaps, in regard to certain suspects. As regards one set of suspects, they may decide that there is no reasonable ground for their detention. With regard to others they may say, in view of what they have learned, in view of the information put before them, of the information given by Ministers called to aid them, that there is good ground for bringing these men to immediate trial.
Now, habeas corpus is much concerned with securing that an innocent citizen shall not lose his liberty by indefinite detention, but it is also insistent upon the right of the individual law-abiding citizen to be brought to trial. In the section that I have already quoted, Section 4, we have the first step towards that provided for, namely, the furnishing of the suspect with the statement of the charge preferred against him. I submit with all respect that this commission could very reasonably in regard to some cases say, “We have enough before us to show that this man may be brought to trial without any risk or danger to the public interest through miscarriage of justice or anything of the kind” and they should order then—I withdraw the word “order”—they should advise the Minister to act accordingly. It seems to me that it will be of value to the Minister in the eyes of the public that he is not refusing justice to any man, even a man that at first he had reasonable cause to suspect. If a tribunal has gone into the matter and considers that not only should he not be released but that he should be brought to trial the Minister can then act accordingly and can claim that there is nothing inconsistent with the issue of his warrant, that he is acting according to the rule of law in that. This I consider of the highest importance. The whole revolution which has brought this Legislature into being was one for liberty, for personal freedom and it would ill-befit us to show a disregard for all the safeguards of freedom and the rights of personality. After all, to save this State is an important task and to us who are citizens it is of undeniable and incalculable value. To save this State is a great thing but, after all, there are some of us idealistic enough to hold that to maintain a great principle, to maintain the fundamental principle of personal liberty, to stand for the rights of personality is even greater because it includes justice to all the world. I think the Minister would be doing a service to the country in adopting this amendment. As Senator Sir John Keane said, very properly, it will do no wrong to anyone.
I cannot accept this amendment. In this matter as to whether there is ample evidence or not which will secure a conviction the Government naturally has to be guided by its legal advisers. It is the Attorney-General's duty to advise the Government as to whether there is sufficient evidence to secure a conviction in any case. Where we have not got that evidence, where we have the knowledge, as I have said, that people are about to do something subversive and a man is interned, if he has a grievance, if he thinks he is not interned justly, all he has got to do is to go before the commission. If he is able to satisfy them that he is unlawfully or unjustly held they will so find, I am quite sure. I think it was suggested that perhaps while he is before the commission something might transpire, some information might be given by the Government that would, in the opinion of the commission, justify bringing that man to trial. I would also suggest that something also might be given away by the man himself in trying to get out, and I think it would not be fair to him that information which he gave before a body that he thought was there to safeguard him should be used in evidence against him. I do not think that would be just or proper at all. It is a danger that is there. I really think there is no reason whatever for asking for this amendment. I admit we have not had very much experience; we have had only a few cases, but the procedure has been that where a man felt that he was unjustly detained and went before the commission, the Government made its case; the police said what they had to say about the man and told the commission why they had arrested this man; he was present and made his case, and it generally happened—I think in every case in which there was an appearance before the commission—that the man admitted that up to a certain date he had undoubtedly been an active member of this organisation but that he had severed his connection with it and that he had not been a member for some months past and did not intend to be so in the future; gave an undertaking to that effect and was released. I am sure that that will be the procedure in the future also.
I do not think that there is the remotest fear of any person being arrested except those who, we are well satisfied and have good reason to believe, are likely to engage in these activities. Senator Sir John Keane can be perfectly certain of that. In this matter, the Minister will have to be trusted. I do not see any other way out of it. He will have to be trusted to see that he does not act vindictively towards anybody. It is unthinkable that any man, who will have to face the public on these matters, would be guilty of any such injustice. I think the provisions for protecting the individual are adequate. I am not prepared to accept the amendment, and I think it would be better if the Senator withdrew it.
I do not intend to withdraw the amendment, because I regard it as vital. The power which the Minister takes here far transcends the needs at the moment. He takes powers to supersede the courts, but he gives no safeguards to the individual in that administrative act. I consider this fundamental in the code of justice and I must ask the House to divide on the principle.
Would a person be entitled to legal aid before this commission?
The commission can settle its own procedure, and if anyone wants to bring in counsel to represent him I am sure it will agree. That is a matter for it to decide.
If there is going to be a division on this matter, I should like to see every possible effort made to give persons who are interned, and who are anxious to make a case against internment, every possible opportunity of making a case to the best constituted tribunal we can have. There has been an improvement in the tribunal as a result of the amendment adopted yesterday in the Dáil.
I hope the Senator realises that it is not a tribunal. It is a commission, a very different body.
Mr. Hayes
There is not very much in that. It is a commission or a committee. In any event, it may not be any harm if it is not bound by the rules of evidence. That may help it to decide in favour of the prisoner, but really you cannot have two things at the same time. You really cannot have power of internment going with trial by a judge. You cannot combine the two things. It may very well be that you would do an injustice by endeavouring to combine them. I do not understand how the amendment will work. AB goes before the commission and the commission decides that there is sufficient evidence to leave him in internment, but not sufficient evidence to bring him to trial. Then he is interned.
Might I submit that that is exactly the dilemma that faces the Minister in his administrative capacity?
Mr. Hayes
I know, but the trouble is that the Minister will have to solve that dilemma. AB goes before the commission, and sufficient evidence is not forthcoming, in the judgment of the commission, to bring him to trial. Therefore he remains in internment. CD goes before the commission and the commission believes that there is sufficient evidence to bring him to trial. He is then brought to trial, is found "not guilty," and is released. The result is that a person is released against whom there is more evidence than against a person who is interned.
If I thought there was anything in the amendment that would work I would certainly be prepared to support it. I am accepting the Minister's description of what will happen. A man is brought before the commission at his own request. The police state the reasons for recommending his internment. One of them may very well be that he is in constant association with certain persons. That is a common reason, but a man may very easily be able to prove that his association with them was innocent and perfectly lawful, in which case he will presumably get free. If he can have legal assistance, as is suggested, it is also in his favour, but how you can place on the commission the onus of saying that in one particular case there is evidence to justify internment, and that in another case there is sufficient to place a prisoner on trial, I do not know. That trial may very well result in the release of a person against whom there is the greater amount of evidence. The amendment seems to me to be unworkable.
If I understood Senator Sir John Keane, his uneasiness is that the Minister may withhold trial. I suggest that if the Minister wants to withhold trial, he can avoid arresting the man and thereby withhold trial.
Senator Hayes propounds a dilemma which is implicit in the whole situation. Once you depart from the fundamental rule of law, you are bound to meet with all these anachronisms. Because they exist, you should try to safeguard justice as much as possible.
As one who had to face internment on four occasions —three times by the British and once by a Government in this country—I say that I would prefer to be interned than put on trial. I presume that if there had been sufficient evidence, I might be placed on trial. The Minister in his reply stated that men who are interned may apply to be taken before a certain commission. In 1916 that procedure did not apply. You were taken before the commission without any application on your own part. If people were asked at that time to go there voluntarily, probably nobody would go unless a person who was perfectly innocent, and we did not presume to be perfectly innocent.
We begin now with the fact that a person is interned. He is interned according to our law as a result of being suspected of certain activities. That individual may believe he is wronged. Then a commission or a committee, whatever you wish to call it, is set up to which he can appeal and give his reasons as to why he should not be interned. It may possibly happen that his internment is on the grounds to which Senator Hayes referred, that he has always been associated with a certain pal who has also been arrested. It may be that he did not belong to the organisation of which that pal was a member. If he goes before this commission, he may feel that it would be turned into an inquisition and that he may be questioned as to why he should not be returned for trial. I think that fact would deter anybody from appealing to the commission. It would really mean that a person would say to himself: "Well if I were interned, I could stay there quietly but if I applied to the commission for an examination of my case, I may be cross-examined and a charge brought against me." That I think would be a deterrent. As one who went through the thing myself, I think that if a man feels that going before a commission means that they will cross-examine him and put him through a sort of third-degree, the result of which may be that he may be charged with some offence, it would be a deterrent to his applying to the commission. That, I think, is what would happen if what the Senator suggests in this amendment were inserted in the Bill. If a person is arrested in the wrong, a person such as Senator Hayes mentioned, he will go before the committee. He will recognise the jurisdiction or the right of the committee to investigate his case and if they are satisfied that the Guards made a mistake, he will, naturally, be released. I think the effect of giving them power to recommend that he should be placed on trial would really prevent anybody from going before the commission.
The Senator has discovered a mare's nest. If he will read the section, surely he will find that there is no possibility of inquisition. There is not the slightest suggestion of a suspect being examined on his own behalf nor even of his tendering voluntary evidence on his own behalf. So that we may not legislate in haste and repent, might I with your permission just deal for a moment with the actual terms of the clause:—
Any person who is detained under this Part of this Act may apply in writing to the Government to have the continuation of his said detention considered by the commission and upon such application being so made the following provisions shall have effect.
It is of vital importance to understand this. These provisions and these alone are to govern the procedure of the commission:—
The Government shall, with all convenient speed, refer the matter of the continuation of such person's detention to the commission; the commission shall inquire into the grounds of such person's detention and shall, with all convenient speed report thereon to the Government;
—I hope the Senator follows that—
the Minister for Justice shall furnish to the commission such information and documents (relevant to the subject-matter of such inquiry) in the possession or procurement of the Government or of any Minister of State as shall be called for by the commission;
That is the whole business. The Minister submits to the commission all that is available in the possession of the Minister or the Government and it is upon that that the commission found their opinion and advise accordingly.
I would like to ask the Minister one question, and hope he will be good enough to answer it. He said incidentally in his reply that we must have confidence in the Minister. I hope I have not said anything that would suggest that I have not full, confidence in the Minister and in the Government. I have absolute confidence, but there is such a thing as advice. If one may be permitted to refer to British institutions—that is rather unpopular, I know —the King of England, the King of Great Britain and Northern Ireland, when he is in doubt with regard to important matters, can call on the services of the Judicial Committee of the Privy Council. That is composed of the highest lawyers in his realm. They consider the matter and they advise the Crown. Nobody ever yet suggested that that was a want of confidence in the whole jurisprudence and scheme of law which prevails in Great Britain. Using the word respectfully, I resent the suggestion that in proposing an amendment to this, in the interests of justice and the rule of law, I am displaying any want of confidence in the Minister. That is a prelude to asking this question. Has he consulted Article 37 of the Constitution? If he has not got it convenient, I will read it, with your permission:—
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons
such as a commission; that I interpolate—
duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
We passed an Act and we are now trying to amend it, if we can, and the genesis of it is that Part VI of the Offences Against the State Act, 1939, is being repealed. Why? Because, by the judgment of the High Court, for a Minister to issue a warrant for the arrest and detention of a suspect and keep him detained without formulating a charge or bringing him to trial is—as they say vulgarly—"butting in" on the judiciary; it is an invasion —to use more elegant language—of the rights of the judiciary. In the term "such person or such body of persons", "any person" includes a Minister, and "body of persons" includes a body of Ministers or a commission such as this, unless this commission is a tribunal or court. There is power, as I read this morning in the Constitution, to appoint a special court in cases such as are at present under consideration, where the case cannot be brought with safety under the examination of an ordinary court. Either this commission, by virtue of this enactment to-day, will exercise some judicial power according to law which will have somewhat the same character as that of a special court, or the same judgment of the High Court will be given against it. It is really in the interest of the Minister that I would clothe this commission in some degree with this character, in order to safeguard the measure from being condemned as non-constitutional. I would beg of the Minister on reconsideration not to let the matter go while there is still time to remedy the flaw which was in the former Act, as pointed out in the judgment of the High Court.
I did not mean for one moment to suggest that I was implying that Senator Magennis or anybody else was displaying any want of confidence in myself. What I said was that, in these matters, where such power was being given to any Minister, naturally there must be a certain amount of confidence that he will not abuse those powers; otherwise he will not get them. I did not mean any personal implication whatever.
As far as that matter of the Constitution is concerned, I would draw the Senator's attention to the fact that this Bill is, we hope, to be presented to the Supreme Court who, no doubt, will have regard to Article 37 and every other Article of the Constitution. As he knows, it has been decided by the High Court that previously it was not constitutional; now we hope to get it from the Supreme Court and we hope it will be decided one way or the other by them.
Why not consider it now?
I can only tell the Senator that we have considered it in every possible way and have done our best to produce a Bill in strict accordance with the Constitution. We have done our best and it remains for the Supreme Court to say whether we have succeeded or not. That is the only answer I can make.
If we were to accept this amendment, I think the effect would be exactly as Senator O'Donovan has said; it would be a deterrent and men would not come before it. Our experience, and the experience of the last Government I think, has been so. I do not know if the last Government had a commission; I think they had, I do not know, for it never entered my head to go before any commission, if they had a commission. Nobody I know ever went before such a commission and our experience the last time was that very few went before it. We would like indeed, if anyone feels the slightest grievance, that they would go before the commission.
Particularly if I have the administration of this Act, I shall feel very pleased indeed if people avail themselves of the machinery of the commission, if a mistake has been made, and go before it and try to get out. I am well satisfied that what Senator O'Donovan says would be the effect, that it would be really a deterrent. As to the constitutional position, all that has been considered by the Government to the best of their ability and with all the legal advice at their disposal. It only remains for the Supreme Court to say whether we have succeeded in producing a Bill which is in accordance with the Constitution. If they do not say so that will be another day's work.
The question on the amendment is: That the words proposed to be deleted stand part of the section.
Question put and declared carried.
Votáil.
Would the Senators who desire a division please rise?
Senators Sir John Keane, Parkinson and McGee rose.
The Senators will be be recorded as dissenting.
Question proposed: "That Section 8 stand part of the Bill."
What is the significance of having a commissioned officer of the Defence Forces as a member of this commission? Is it for the purpose of conveying to the public mind that it is a military body and that the people who are likely to be detained are members of a military organisation? If so, would not the inevitable result be that they would regard a member of our Defence Forces as a natural enemy from whom they could not expect justice? If that is not so, what is the particular benefit of having a serving soldier merely because he has seven years' experience as a member of what might almost be regarded as a sort of police commission? It may be the attitude of the Government that, "Here is a commission; take it or leave it", but if the Government is anxious that the largest number of people should take advantage of this commission to escape from the clutches of the law, if, in their opinion, they ought not to be detained, surely it is to the advantage of the commission that it should not have on it a single person who is drawing emoluments from the State, whether as a judge or not. Surely the attitude of the leaders of these organisations would be to persuade their followers that the cards were stacked against them and that they ought not to go before the commission? I should have thought that if the Government were anxious that these people should go before the commission, and have their cases tried, there ought not to be on it a single person of whom it could be said that he was drawing money from the State and, therefore, would have to obey his masters.
This is a new provision. In the case of the last commission, it was not obligatory to appoint a military member, but, as a matter of fact, two were appointed, and I must say that I confess frankly that I cannot give any other reason but that they were thought most suitable. It was open to the Government to appoint any two members. One was required to be a judge of the Supreme Court or High Court, a district justice or barrister of seven years' standing, and the other two laymen. We appointed two military men because we thought them the most suitable. I do not know any other reason. Yesterday in the Dáil this amendment was carried. I was not present, and I am not saying that I would not have agreed to it, but I would rather be free to appoint any person. I do not see any objection to it because military men proved very satisfactory before and no one who went before that body had any grounds for complaint.
I am naturally not pressing the Government in the matter, but when the Minister speaks of its having been very satisfactory, does he mean from the point of view of the Government, or from the point of view of the men coming before it? The point I wish to make is that if you want to encourage these people to come before the tribunal, I do not think it is the best way to go about it, to appoint people who are receiving emoluments from the State, because I think it gives a handle to the leaders of these people to say: "What is the good of going before that body? These fellows get money from the State and obviously are not going to give you a square deal."
When I spoke of its being satisfactory, I meant from the point of view of the Government and of the people who went before it, because every person who went before it was released.
Is this the type of commission the Minister is going to apply to detention under the Emergency Powers Act?
Yes, the same.
Question put and agreed to.
Section 9, Schedule, and Title agreed to.
Bill reported without amendment.
Question—"That the Bill be received for final consideration"— agreed to.
Question proposed: "That the Bill do now pass."
We have already made our position clear on this Bill. We should have liked to vote for Senator Sir John Keane's amendment, but we oppose the Bill on the whole, and we do so on very sound principles. As I said yesterday, we have opposed these Bills consistently. We regard them as a very serious encroachment on the liberty of the subject, and we opposed them at a time when there was a much more serious menace before the country. When the Minister and a large number of the present Government were in opposition, there were far more formidable opponents than what has to be dealt with now. We opposed them then, and we persisted in opposing them.
In all the discussions on this Bill, there is an aspect which has not been dealt with by any member up to now. There is a major war taking place in Europe. The conflicting elements say that the war is a conflict between two ideologies—democracy versus the Nazi or Totalitarian States. I submit that, by voluntary action on the part of the Oireachtas, we are setting up almost a totalitarian state in this country. The Minister, without consultation with anybody, is entitled to arrest people for any cause which he can designate as an offence against the State. We think that is not a power which should be entrusted to any Minister in a democratic country, because it is a very serious encroachment on the fundamental right of the liberty of the subject.
As a Labour Party, believing in a democratic régime, we must ensure that this country continues its democratic system of government, and we are entitled to protest against Bills of this character. Can anyone visualise a Government of the future, composed of, say, a Labour Party, with my colleague Senator Lynch in the position of the present Minister, or Senator Counihan representing the Farmers' Party, dealing with certain people in the Army with the powers given under this Bill? What would become of the "scallywags" and "jail birds" if Senator Counihan had such power in his hands? That is a matter for serious consideration. We should not set a precedent that would empower people to set up what would amount to tyranny in the form of government. It is true that provision is made that these Bills will lapse after a certain time, but the fact is if a Government has these powers it will not hesitate to use them. I referred yesterday to the application of this Bill to a large number of citizens, who felt that they had a grievance, and the Seanad took steps to right that matter. The methods these citizens employ may be considered contrary to the spirit of law and order, but I submit that many of the steps taken in this and in other countries are contrary to law and order. Timid and law-abiding people will never get anywhere. It is only by agitation and by efforts of that kind that we have been able to bring about improvements.
Whether the farmers were right or were justified in the line that they recently adopted is another matter. We heard the Minister talking about the crime of holding up of fairs, as if that was something new, something outrageous, or something to be put down. Just picture the position of a number of railwaymen or people engaged in transport, who, feeling that they had a grievance, withdrew their labour, and the military going in to take charge of the transport system. Such provisions in a Bill are matters of great concern to people on these benches, and they are certainly of great concern to thinking persons. It is extraordinary at this stage to find that Senator Sir John Keane and I are definitely in agreement. I will vote against the Bill, but the Senator will not. Yet, in substance we are in agreement. The Bill is a definite encroachment on the liberty of the subject, and consequently we have opposed it all the time. We hope that its application will be used wisely and well. Without being a prophet, I want to say that it will not succeed in the object that the Government has in view. Internment will not solve any differences of opinion that exist between certain sections of the community. We had experience of internment and of coercion, and if they could have done away with the spirit that was abroad we would not be here to-day. We will have that spirit in future generations if this measure is not applied wisely and well. We are opposing the Bill and the principle embodied in it, because it is contrary to democratic ideals.
I think the only difference between the Senator who spoke last and myself is one of principle, but perhaps I am a bit more of a realist than he is. I appreciate the difficulty in which the Government is placed. This should be in a democracy an abnormal practice. I understand that the Army Act gives certain powers in regard to discipline and that they have always been considered abnormal from the 17th century. Senators must excuse me for basing my plea on British practice, but it has been proved by tradition. The Army Act is an annual Act, being renewed every year. Could not the Government consider making this Bill of such a nature as to expire annually, and then being renewed, so that we should be reminded of the violence we are doing to the sacred principles of liberty and democracy, and only when the need was imperative was it to be used?
I want to explain my statement with regard to the Volunteers, and to discipline in the Army and the Civic Guards, which was commented upon by the Minister and by other Senators as being outrageous. I have been asked by my colleagues to withdraw the statement. All I can say is that I believe that I told what was a fact; that it is wrong for the Government on its part to take in indiscriminately every class of individual in the country, and as one Senator told us, from street corners. Was it good policy to take them into the Volunteers and give them responsible posts to hold? I understand it was Volunteers were in charge of the Magazine Fort when the raid was made? That shows clearly and conclusively that the Volunteers are not a disciplined body, and I think justifies the statement I made, that the Volunteers are a body which definitely could not be relied upon. When I mentioned that there were a number of scallywags in the Volunteers I meant that a very small percentage could contaminate a large body. That was the statement I made. I cannot withdraw it, because I believe it is a positive fact. In future, I think the Government should exercise some discretion in selecting Volunteers, particularly for a peace time Army.
I am sorry Senator Counihan did not leave that matter alone; he has only made it worse. I do not know what the regulations are, but I am certain that when people are recruited for the Army precautions are taken as far as they can be taken to see that only men who are fit to be in the Army are taken into the Army. If, as I said before, some others do get in, that is unavoidable and deplorable. In course, it might happen. In any Army or any large body of men anywhere you will find people who do not come up to the standard expected of them. If the Senator had been gracious enough to say that, I think he would have undone a great deal of the harm which he did.
As to Senator Sir John Keane's suggestion that this should be an annual Bill, I would draw his attention to the fact that this part of the Bill only comes into force when the Government make a proclamation. Section 3 (1) provides: This part of this Act shall not come into or be in force save as and when and for so long as is provided by the subsequent sub-sections of this section. I would also draw his attention to the fact that, under sub-section (4), whenever the Government has made and published a proclamation it can be annulled by the passing of a resolution by the Dáil. Therefore, this part of the Act is only temporary and is intended to deal with an emergency situation. Section 3 (2) reads:
(2) If and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately, this Part of this Act shall come into force forthwith.
It can be withdrawn in the same way. I think that meets that point.
All I can say about Senator Foran is that I do not agree with him. I think he is taking a wrong line, but that is a matter for him and his Party who have considered it. Even if his Party took that attitude previously, that is a poor reason for taking it now. I do not think that people are required to continue to do what they did in different circumstances. But that is a matter for the Senator. He has considered it, and so has his Party, and if they feel justified in keeping to the attitude they took up in other circumstances, that is a matter for them. As I said yesterday, I think that the Party that should take the most precautions to preserve democratic institutions is the Labour Party, and they are not doing that by their attitude now. They are really encouraging others to take the power out of the hands of the elected Government of the people. That is my opinion, it is the Government's opinion, and, apparently, it is the opinion of the vast majority of the members of the House.
Question put and declared carried.
The Seanad adjournedsine die at 5.15 p.m.