Seanad Éireann debate -
Wednesday, 14 Feb 1951

Vol. 39 No. 5

Criminal Justice Bill, 1949 (Seanad Bill amended by Dáil—Recommittal and Final Stages.

Mr. Quirke

I move amendment No. 1:—

In page 7, Section 23, after sub-section (4), to insert a new sub-section as follows:—

(5) This section shall not apply to a disqualification order made pursuant to Section 30 of the Road Traffic Act, 1933, or a forfeiture pursuant to Section 28 of the Intoxicating Liquor Act, 1927.

This matter was very fully discussed in the Dáil. On reading over the debate, it was not quite clear to me why the Minister objected to accepting the amendment in the Dáil which was on similar lines to the amendment which I have just moved in this House. It is quite clear, I think, to anybody who studies the position that under Section 23 of this Bill the Minister seeks power which he did not have heretofore. There are numerous objections to his having such power because, apart from anything else, it would practically be impossible for a Minister to handle the number of applications which he would receive if the power which is suggested in this Bill were given to him. In the course of the debate in the Dáil it transpired that approximately 1,700 petitions are received by the Minister each year in connection with various matters. Anybody who knows anything at all must admit that it is quite impossible for any Minister to deal personally with that number of cases and, furthermore, that it is quite impossible for the higher officials of a Department to do so. As a matter of fact, it has been admitted that such petitions in connection with minor offences of one kind or another are dealt with by what may be regarded as minor officials.

An Cathaoirleach

I do not wish to interrupt the Senator but I think there is a possibility that the two amendments could be discussed together.

Mr. M. Hayes

I think so. They bear upon one another.

Mr. Quirke

Yes.

Mr. M. Hayes

If we are going to do that, perhaps we might as well go into committee. It would enable Senator Quirke to make a second speech on the amendments.

Section 23 recommitted.

The Seanad went into committee to consider amendments Nos. 1 and 2.

Mr. Quirke

Under this Bill the Minister takes unto himself the power to remit penalties under the Road Traffic Act and there is a Government amendment in connection with that matter which reads as follows:—

In page 7, Section 23, after sub-section (4), to insert a new sub-section as follows:—

(5) Where a disqualification for holding a driving licence under the Road Traffic Act, 1933 (No. 11 of 1933), is remitted, in whole or in part, under this section, notice of the remission shall be published as soon as may be in Iris Oifigiúil.

If the Minister is given the power which this Bill seeks to give him, it is a foregone conclusion that there will be an annual stream of applications for the remission of penalties as a result of legal proceedings. In other words, it will be more or less an advertisement, if you like, to people who are driving cars to the effect that, even if they are caught, it is not as bad as it was heretofore—"even if we happen to be caught we can always appeal to the Minister." I submit that that is a most undesirable situation. We do not have to go back very far in the political history of this country to see the pressure which has been put on Ministers from time to time in connection with various matters. Anybody who knows the country and country conditions must agree that when people have a certain amount of drink taken they get ideas into their heads.

A man who, in his sober senses, would not admit that a Minister could be influenced, would, if he had a few drinks taken, immediately come to the conclusion that he is the Minister's best friend and that all he has to do is to write a letter to Deputy MacEoin, or whoever may happen to be the Minister at the time, and that the matter will be all right. If you like, the two matters are intermingled. I think I am correct in saying that a lot of the accidents which occur take place late at night. As we are discussing the two amendments, I suggest that road houses, if you like to call them so, or public houses, are breaking the law in supplying drink to people after hours, and that, in turn, has a direct bearing on the other question also. I do not want to suggest for a moment that the attitude of this Government or of previous Governments with regard to clemency in major matters, such as manslaughter and so forth, should be changed. However, the line which is being taken in this Bill is a very drastic and dangerous line—that, under Section 23, the Minister has a right to remit the sentences imposed by the judges. This situation is far more serious now than it was when the original Act was introduced in 1933. At the present time, the number of cars has increased beyond all possible imagination from the time that the Bill was introduced. There are so many cars, in fact, that parking space can hardly be found for them even in provincial towns. There must be approximately four times as many cars on the road now as there were at the time the original legislation was enacted.

There is also another matter which has a bearing on this amendment and that is, that, unfortunately, there is more drink being consumed in the country now than there has been. Possibly there is more money in circulation. Anybody who reads the papers will see that more accidents have taken place over the past two, three or four years than have taken place in, possibly, three times that period heretofore. If the Minister has the power to remit sentences, there is no question but that pressure will be brought on the Minister. I would appeal to the Minister to accept this amendment. In the Dáil, the Minister said that he himself did not want the power. If he does not want the power, he now has an opportunity even at this eleventh hour of getting rid of that power. I think the Minister was very sensible when he said that he himself did not want the power.

In connection with offences of this kind, there is not the possibility, or if you like, the probability that there would be a miscarriage of justice. If a man is found driving a car under the influence of drink, he is picked up by the Guards and taken to the barracks. There is no question about his identity. The man in many cases will have a driver's licence and there are other ways by which he can be identified, so that there is no question of an error being made on the question of identity. The next question to be decided is whether or not he is under the influence of drink. I understand that, in the case of a man being charged for driving a car under the influence of drink, a doctor is called in at the earliest possible moment. Notwithstanding what has been said for and against the medical profession, privately and publicly in the last week or two, I have the greatest possible respect for the members of the medical profession in this country and I think it is out of the question that any doctor would alter his opinion one iota even, if he were called in to give evidence, in the case of his best pal, so that there is no danger whatever of the question of a miscarriage of justice in so far as the medical evidence is concerned.

In other countries if a man is found having taken any drink whatsoever, his licence is taken from him and he is open to be penalised in various ways. He does not have to be under the influence of drink. I think that is the case in Sweden and Denmark, some of the Scandinavian countries, where if a man is held up for his driver's licence or because of some accident and the slightest smell of alcohol is got from him, he is taken before a doctor. If any sign of alcohol is found at all in his system, he gets the full rigour of the law. I think that that is swinging the pendulum too far in the other direction. I myself have been accustomed to taking a drink for a long number of years—I suppose 30 years— and I am sure there are several people here who have also been accustomed to taking a drink. That is a very different matter from a man driving a car under the influence of drink. I think we are all inclined to read the newspapers casually and if we see that somebody has been knocked down by a motor car we say: "That is too bad", and it is left at that. If we could imagine that some member of our own family had been knocked down by a motor car driven by a man under the influence of drink I think we would take a very different view of it. If that man were convicted for driving a car under the influence of drink, the only remark any of us would be likely to pass would be that he got off too lightly.

We are here discussing a Bill and in that Bill we are asked to pass one particular section which, in actual fact, overrides the authority of the judge. These are statutory cases, where there should not, in my opinion, be any authority on the part of any Minister to remit the penalties. The power, as I said in the earlier stages, was conferred on the courts and rightly so in my opinion. The suggestion here is that that power should now, for all practical purposes, be taken from the courts and put in the hands of the Minister. That is what it actually means. The judge can pass a sentence all right. The Minister himself said he remit. The Minister himself said he did not want the power. He said he would think the matter over and that he would consider, I think I have the quotation here, bringing in a suitable amendment in the Seanad:—

"I undertake to have the matter carefully examined and to bring in an amendment in the Seanad, if necessary."

Minister for Justice (General MacEoin)

Dealing with what aspect of the question? What is that in answer to?

Mr. Quirke

In connection with the publication.

General MacEoin

I do not think that amendment meets the case at all.

Mr. Quirke

According to law, these cases should be tried in public. That is the law. If this section is to pass as it is in the Bill at the present time, it will mean that those cases will come in in hundreds, even in thousands, so that it will be completely impossible for the Minister to deal with them. I appeal to the Minister to accept this amendment. If we pass the Bill as it stands, in my opinion it is a reflection on the judges in the country who were appointed by succeeding Governments, and I think they are fully competent to handle situations of this kind. They have the confidence of the people. If the Minister is given the powers which he seeks in this Bill, I feel it will not be for the benefit of law and order in this country. I appeal to the Minister to accept the amendment.

Mr. Hawkins

I support Senator Quirke's amendment, but on a much broader basis. Much has been said here and in the other House about the seriousness of persons driving cars while under the influence of drink, but, serious as that is, the amendment, to my mind, raises a much more serious and important question, the question whether justice in the last analysis is to be administered by the political head of a Department or by the judges appointed for the purpose. There are many other offences—almost any offence for which one can be brought before the court and convicted—in respect of which the Minister has power under the section to remit punishment. There are offences under the licensing laws and so on. In all such cases, the person convicted has the right of appeal, and particularly if he thinks he has some influence with the political Party in power, that political influence will be used to its utmost.

The Minister's case in the Dáil was that it often happened that, after a conviction in the court, some new evidence or some new light on the case came to hand. If that is the plea the Minister is going to make to-day, justice can only be done in such cases by having a new trial and not by appeal to somebody who is political head of the Department. The driving of a car while under the influence of drink is a serious charge, no doubt, but there are quite a number of other charges which are just as serious and it is because of the wide field which the giving of this power covers that I would ask the House to examine it on the ground of principle rather than in relation to any particular individual cases.

General MacEoin

I am more or less astounded by the line of argument taken by the two Senators who have spoken. They have not adverted to my amendment, except to say, in a very casual way, that it does not meet the requirements of the situation and if I, in 1937, had made the speech made by these two Senators, against the Constitution, I would have been charged very violently with being against the Constitution.

Mr. Hawkins

Quite a number of speeches were made against it at the time.

General MacEoin

It is too late for you to be making them now. If we start to amend the Constitution, I hope the Senators and I will be able to agree on the respect in which it should be amended. This section is designed to give to the Government—not to the Minister—the power laid down in the section of the Constitution relating to the prerogative of mercy. The Constitution says:—

"The right of pardon and power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."

Up to the present, the prerogative of mercy has been exercised in two respects. Under the Adaptation of Enactments Act, 1922, the Governor-General was substituted for the Lord Lieutenant in certain circumstances and for the Secretary of State for Home Affairs in others. So long as we had a Governor-General here, a certain practice was built up under which the Minister for Justice exercised the very power which I am now taking, no more and no less. When the position of Governor-General was abolished in 1936, it was necessary to transfer the power of forgiving and the prerogative of mercy to some other authority and it was transferred to the Executive Council by the Executive Powers (Remission of Sentences) Order, 1937. That power was then vested in the Executive Council and it is the power under which my predecessor and I have acted since then.

It is argued that it does not fully meet the requirements of the Constitution, that there should be a positive law authorising us to exercise that power. I was perfectly satisfied that in the Dáil I had made a case that would meet the requirements of any reasonably-minded man on the question of the publication of the remission of penalties. I said I would examine it, and I did so. The Government may not vest these powers in the Minister at all, and my predecessor in office said he thought I was the person in whom the Government should be compelled to vest it. In a casual way, I said that if he put down an amendment to that effect, I would accept it. He did so, and while I was then taking away power from the Government which it should exercise and making it a mandatory matter, after some pressure, I accepted it. That is what is in the Bill now. If the Government delegate the power to anybody, it must be to the Minister for Justice. They cannot delegate it to Senator Quirke, to the Revenue Commissioners, to the Land Commission or any other body of persons.

To exclude disqualification Orders from the scope of the section altogether ignores the fact that under the Constitution the President has power to remit in such cases. There is no question about that. The President may remit any disqualifications on the advice of the Government, and that is laid down in the Constitution. How is the President to be enabled to review the circumstances under which the prerogative of mercy is to be exercised except through some process which Senators opposite say is almost impossible?

He must have some method. In this method it is being delegated and is to be exercised as it always has been up to the present. If it were something novel or new I could understand the argument being made against it. I am only contending in regard to what has been the practice. The disqualifications mentioned here are those in the Road Traffic Act and the Intoxicating Liquor Act. Under the latter Act, no court exercises that power. If the licence has been endorsed twice, the axe falls and there is no one who can remit it—not even the Government or the President, in my opinion, as it is statutory. One may argue that the Minister could take off an endorsement if a petition were made in certain circumstances. He might remove the endorsement once.

Under the Fisheries Act there is disqualification and that occurs also in regard to abuses under the electoral law. There is another one, which may interest Senator Quirke—auctioneers' disqualifications. Under the Auctioneers and House Agents Act the court may cancel the licence held by a person and, if he is a licensed auctioneer, every auction permit granted to him or to any person to conduct auctions on his behalf. That is a disqualification which is imposed. Under this, it is true, the Government could restore that licence to the auctioneer and I think it would be too bad if they could not. It would be only reasonable that they could restore a thing like that.

What I said in the Dáil was that it was not this Act that should be amended, in regard to the removal of disqualification put on a drunken driver, but the Road Traffic Act itself. What I suggest to my colleague the Minister for Local Government is that, where disqualification takes place in such circumstances, the Act should be amended so that in one, two or three years' time the person could make an application to the court to have the licence restored. That would be the proper method of approach to this point.

The Government and the President must retain the right to exercise the prerogative of mercy at all times and in all cases. It would not be wise to restrict that power in any way. Remember that the prerogative of mercy is extended not to the innocent but to the guilty. You cannot forgive an innocent person: justice must step in and he must be re-established. Where an injustice has been done or a miscarriage of justice has taken place, a free pardon is granted and again it is the Minister for Justice who initiates it. Having heard and investigated the case and having satisfied himself fully that the person was innocent from the beginning, he makes a submission to the Government that they should exercise the prerogative of mercy or the power of remission, by granting a free pardon to that individual. Not only that; if imprisoned, they pay him damages for every loss sustained and do everything possible to restore that person's good name. That has been the practice. The previous Administration and the one before it carried that out. This Administration is doing so and there has been no change or departure. This will not make any change.

What I said in the Dáil was that it was a power I would not like to have. I mean that. However, there are many things I do not like in my life, but when there is a duty to discharge I will discharge it without fear, favour or affection, to the best of my ability. What I said was—and I repeat it— that where a driver is disqualified for being drunk, that disqualification, in my opinion, will never be removed. If a Minister removed it and the fellow had an accident the next day and killed someone, where would the Minister be? For his own safety, he will not exercise such a power. I am meeting the point that if by any chance he does exercise it, it will be put in Irish Oifigiúil, so that the people will not be scandalised and everyone will know that he has been granted a remission of the disqualification.

The argument was made that we were not going far enough and there was an argument that we should do something else. Any announcement in Irish Oifigiúil must of necessity be short and the circumstances, the facts and the reasons for the disqualification could not be put in. These were the arguments against putting it in, but still, it being a Road Traffic Act case, I think it is better to put it in and meet the point to that extent. It does improve the Bill in some way and I feel that the Seanad should accept my amendment and reject the amendment moved by Senator Quirke.

Mr. Quirke

In my opinion, the Minister has made practically no case against my amendment. He fires the Constitution at us and suggests we are making a case against the Constitution. At the same time, he is suggesting that he did not speak against the Constitution when it was being enacted. As a vigorous member of the Fine Gael Party, if he did not make speeches against the Constitution—I cannot quote him, however, as having made them—all I can say is that he was not carrying out the Party instructions. However, be that as it may, it is really absured to suggest that there is any comparison between what we are discussing here to-day, Section 23, the remission of the sentence passed on a person found under the influence of drink in charge of a motor car, and the provision made in the Constitution. The power is given—and rightly so—in the Constitution to the President to exercise the prerogative of mercy on the advice of the Government. There was no doubt in anyone's mind as to what was intended in that particular section and I am quite certain that nobody in his wildest dreams ever thought they would find a Government in this country which would appeal to the President to remit a sentence passed on somebody down the country for having an unlicensed dog or something of that kind. It was quite evident that only in very serious circumstances, where it was a question of life and death, would any Government—I say definitely any Government —appeal to the President to exercise the prerogative of mercy.

The Minister suggests that this is practically the same thing. To my mind, we should be very cautious as to what we should do in connection with exercising the prerogative of mercy, and what we are doing under this section is leaving the door wide open. It is all very well for the Minister to say that no Minister would exercise his authority and remit a sentence on a man who, he thought, was likely to go out on the roads and kill somebody else a couple of weeks afterwards.

I quite agree with the Minister on that; no Minister would do a thing like that because he would know that he would have to face the public. I am not so sure, however, that any Minister would be the proper man to judge a case of that kind. I do not want to suggest for one moment that the present Minister or any other Minister I can think of would deliberately remit a sentence in a case where he thought he was wrong, in other words in the case of a man who, in his opinion, was likely to go out and run roughshod through the country the following week. But what qualifications has any Minister assuming that the Minister was himself to be judge—which is far from the fact—to judge what any man will do in the future? The only thing he could do would be to go on the facts before him and say that if a man had committed one, two, or three offences of that kind he would be likely to go on committing them. The only way to put people in a position where they can be brought up in court, charged and sentenced is to close the door rather than to open it.

The Minister in his speech suggested that he had this power already, but I hold that he did not have it. If he had, why is the section necessary at all? If he had the power there is no sense whatever in his taking it under this Bill.

The question of bringing other smaller crimes, other less important offences, into this discussion is to my mind drawing a red herring across the track. If it is necessary to deal with the Road Traffic Act and to make drastic changes in it, what we should really do is to have new legislation. I am quite prepared to admit that the Road Traffic Act was brought in under circumstances very different from the circumstances we have to-day and in very different times, but we should not try to deal with it—I do not like to say in an underhand way—but in a side-wind method such as that adopted under this Bill.

Mr. Hawkins

One or two questions arise out of the Minister's statement. Referring to the licensing laws, he stated that after two endorsements the licence goes and that there is no appeal to the Minister but he added that the Minister had power to remove one of the endorsements. Therefore the removal of one of the endorsements can go on indefinitely and the axe need never fall except in a particular case where the Minister wishes it to fall. That must be the case.

While the amendment put down by the Minister goes a distance, I suggest that it does not go as far as we would wish, but there is very little we on this side of the House can do about it if the Minister is not prepared to accept Senator Quirke's amendment.

He has fulfilled to a certain extent the promise made in the Dáil regarding the names of persons whose sentences are remitted in the case of one particular offence, that of driving a car while under the influence of drink. I have already said that that is a serious offence and the question has been raised here and elsewhere. The increase in the number of cases has been attributed on the one hand to an increase in the number of persons who take too much alcohol and on the other hand to an increase in the number of persons who have motor cars. I think that the latter is the cause.

Mr. Baxter

And too much money to spend.

Mr. Hawkins

However, if the Minister undertakes to publish the remissions in one type of case he should do it in the case of other types of persons. Take the case of an auctioneer. If his licence is removed he may appeal and his licence can be restored. It is only fair that the public should be made aware of that fact through the official organ of the State. I would ask the Minister to amend at the Report Stage the amendment so as to include every remission under the prerogative of mercy under this Bill.

Professor Stanford

I would ask the Minister whether it must be stated in the public Press when the prerogative of mercy is exercised in other cases. If not, is it not desirable that it should always be published when this prerogative of mercy is used?

General MacEoin

It is not in the public interest.

Mr. M. Hayes

I came into the House rather in favour of Senator Quirke's amendment. Perhaps I had not given the matter sufficient consideration, but with regard to the first half of his amendment which applies to disqualification under the Road Traffic Act I have a very strong view. I think that everybody in the House would agree with me that people who are found to be drunk in charge of a motor car should be very severely punished and that there should be disqualification—and I would rather think disqualification for life—for all persons who have been convicted of being drunk in charge of a motor car because they have been on the public streets with a lethal weapon much more dangerous than a loaded revolver which may be discharged in the air. I felt that there was something to be said for fixing disqualification of that kind without its being possible to have it removed by any authority whatsoever in the State. Having listened to the arguments here I must confess that I have found neither Senator Quirke nor Senator Hawkins convincing; in fact neither was as convincing on that matter as he usually is.

First and foremost the statement that this power given to the Minister under Section 23 of the Bill is new is of course quite wrong. This is an old power. As the Minister has very well explained, it is a very old power and a very extensive power and the Bill does not contain any new power for the Minister. It is a very interesting matter. Formerly the powers of pardon were exercised by the Governor-General within limits imposed by letters of instruction from the King and they were exercised by virtue of the royal prerogative of mercy. That was the position under all Governors - General including Domhnall O Buachalla who also exercised the royal prerogative of mercy under these circumstances and within these limits. On the abolition of the Governorship-General the prerogative of mercy, the power of pardon, was vested in the Government, that is the last Government, the Fianna Fáil Government. They made an Order conferring these powers on the Minister for Justice, so there is no novelty, no departure, no new principle involved in this particular section of the Bill. Neither is there any fundamental question of removing by Section 23 of the Bill from the courts the power to punish and of transferring judicial matters to the Government. That is not being done here except it is to be taken that the power of remission of certain penalties which was always exercised did that.

It seems to me that it would be much better that this power should be exercised by the Minister for Justice than that the President should be brought into a question dealing with the Road Traffic Act. Neither do I think that this has been done by a side-wind. It has been done in a most obviously plain fashion. The Minister is being given the power which his predecessors had — a power which, during 16 years of office, nobody on the far side ever suggested should be taken from the Minister.

People who have known me for some time in this House will agree that, whether I was in opposition or supporting a Government, I never took the view that Ministers have a double dose of original sin and that they cannot personally be trusted. I have never been of the opinion that Ministers have a special degree of wickedness and that in exercising their ordinary statutory powers they would always exercise them in favour of political supporters and against political opponents.

Mr. Quirke

I did not suggest anything of the kind. I said that pressure might be brought to bear on them and that a Minister's life could be made intolerable. That is what I wanted to convey.

Mr. M. Hayes

In other words, Senator Quirke was full of confidence in the Minister and was brimming over with sympathy for him. I do not accept that picture. I am sorry. He has the greatest confidence in the Minister's capacity to withstand all kinds of pressure, and he believes that he would not, in any circumstances, yield, but he feels that he wants to rescue the Minister and keep him from being subjected to that pressure. Of course, Ministers in the previous Government were never subjected to that type of pressure because their followers never approached them at all. That is what the Senator would have us believe.

Mr. Baxter

That would, indeed, be a fairly tale.

Mr. M. Hayes

Precedents are established, particularly in this matter of justice. I think we have been singularly fortunate, with regard to the Department of Justice, in a great many ways in connection with the powers conferred on Ministers. From a practical point of view I think that the Minister's suggestion is the best—that, in the case of drunken driving, whenever the disqualification is removed, it should be by way of special exception and that it should be quoted in Iris Oifigiúil.

I agree with the Minister and with Senator Quirke that the Road Traffic Act ought to be amended. Perhaps it would be a suitable thing for the Seanad to seek to have the whole road code amended and make certain penalties much more drastic. I think it would be a mistake to suggest that every time the Minister exercises his powers he should publish it in Iris Oifigiúil. That would be too much. I take it that the Government amendment on the Order Paper expresses the view on behalf of the Minister and I think we all agree with him that disqualification imposed upon a driver found to be drunk in charge of a car should be remitted only in very exceptional cases and that the remission should get the greatest possible publicity. Pending an amendment of the Road Traffic Act, I think that that is quite a sufficient precaution and I suggest that the House should be satisfied with it.

It should be emphasised again that what is contained in Section 23 is in accordance with the Constitution, with Irish precedent and with British precedent. There is nothing new or remarkable about it. It is quite normal and orderly.

Mr. Quirke

I appreciate what Senator Hayes has said. It would not be in keeping with my opinion of him if he were to accept the statement which he accused me of making—or "the picture", as he put it—to the effect that I was overflowing with confidence in every Minister and with sympathy for him in connection with this particular situation. That is not so at all. On the other hand, I am not prepared and I have never been prepared to swallow all the things that are said about various Ministers.

For instance, I do not believe half the things which were said about the Minister for Posts and Telegraphs in connection with the Baltinglass affair. I do not swallow things whole-hog at all. I do not believe that the present Minister, although he has a lot to recommend him, is going to be the Minister for Justice for all time. It does not look like it at present, in any case. The fact of the matter is that there is always the danger that you might get a man in the position of Minister who might not be quite so strong as the Minister is or as the last Minister was, and that pressure might be brought to bear on that particular Minister, as it has been suggested was done in the case of other Ministers. I am not saying that it was done but it has been suggested by members of the Coalition Party that pressure was brought to bear on Ministers to have certain things done. I may say that that allegation has not yet been proved to my satisfaction. It is only wise and right that we should take the necessary precautions to ensure that no Minister will be open to the pressure, or the temptation —whichever you like—of what would be likely to come if we accept this section as it stands.

Senator Hayes, who followed the Minister, insists that the last Minister had this power and that we are not doing anything that was not done under the previous Administration. I ask the Minister to tell this House if the previous Minister had this power to, perhaps, remit sentences of the court on individuals for offences against the Road Traffic Act or the Intoxicating Liquor Act. I ask the Minister to tell this House now if these powers were used by the previous Minister and, if so, in what instances? By way of defence, the Minister also said that while he does not intend to be in a position to give back a licence which was actually withdrawn, he would, nevertheless, be in a position to remit endorsements. To my mind that is only a way around it. If you can remit endorsements I submit that you can keep on remitting an endorsement indefinitely. If my information is correct a licence is not actually suspended until there are three endorsements. If a man's licence has been endorsed twice he must realise that he is for the high jump if it should be endorsed a third time. But now, all he has to say is: "The Minister has power to remit these sentences and we can appeal to the Minister now." The trouble is that, in such a case, they can go on appealing and they can approach him again the next time.

In the interests of the country, I submit that my amendment should be accepted and that the Minister should not be given the power which he is taking under this Bill. It may be suggested that the power is being given to the Government as against being given to the Minister and, in that connection, I would point out that there is also a sub-section which enables the Government to transfer the power to the Minister. In actual practice, the power is really not being transferred by the Minister to the higher officials of his Department but to the junior officials, who will be trying thousands of cases which are sure to come in as a result of this particular section.

Mr. Douglas

I do not propose to follow the general line of argument. I am convinced that it is in the interest of the State that there should be some method by which mercy can be exercised in suitable cases. That is the principle. The Constitution accepts that principle and provides that if the law does not provide some other method it can be exercised by the President on the advice of the Government. Although this amendment is strictly limited, we have been debating it in general terms. I am convinced that somewhere, somehow, in the interests of justice, humanity and the goodwill of the State generally, a method must be found. To take the power away altogether would create much more harm than is likely to arise out of the amendment. I am not convinced that it should always be exercised by the Government and that there might not be methods by which it could be exercised otherwise. That is the difficulty, but until we have provided some other method, I see no other way but that it should be by the Government.

The only thing I do not particularly like is that they should delegate it to a Minister. Even though the Minister advises it, it should be done in the name of the Government. However, that is a minor details. This particular amendment does not try to remove the prerogative of mercy or the remission, but it does try to remove it in the case of disqualification. I agree with everything that has been said in the Seanad with regard to the seriousness of the offence of driving when not fit to do so, particularly when under the influence of drink. I am not altogether convinced that a disqualification for a long period is necessary in every case as the best way or most just way of doing it. What the people want is to have this matter stopped and a reform brought about. We know that drunkards can be reformed. I have some sympathy with Senator Quirke in this when he says that that particular type of case is very difficult indeed to deal with. The Minister says no Minister would deal with it and he was probably right. Certainly, it would be an extremely exceptional case. I am not convinced there should not be some method of dealing with it after a period of time and, having regard to all the circumstances, it will not be solved by taking it away altogether, as this amendment says. I do not think it will be solved by hundreds of petitions to the Minister, 99 per cent. of which will be refused.

I am glad the matter has been raised. I think the debate has been valuable in that it raised a point which does require consideration. As to whether an appeal to a court after a period of time would be the way to deal with it, or whether there might be some special body composed of a number of judges, I have an open mind. In the case of most people who drive for pleasure, if they are disqualified it is not a very serious matter, but to people who have to depend entirely on it for their livelihood it becomes a more severe punishment. In the interests of safety, no matter how hard the punishment may be, you cannot allow the man to drive again if there is the slightest chance that he will commit the offence again.

Mr. Summerfield

I am sorry so much emphasis has been put on the drunken motor driver. After all, the powers will have to be used in connection with other types of offences. In my experience, many of the accidents —the fatal accidents—on the road have not been caused by the drunken drivers at all but by another type of driver, the reckless driver, and nobody has any desire to see him escape the consequences of his act. In recent times, some of the sentences passed in proven cases of drunkenness have shocked the vast body of responsible motorists in this country by their inadequacy. Since we have heard this note of the drunken driver so much in this debate, I want to say now that, with the large increase in driving in this country, the vast majority of drivers are decent, responsible drivers. If those drivers were the judge and jury trying some of those people who were caught either before or after an accident, then the sentences imposed would be far more severe than has been the case up to now. I do feel that, after all, a court of law is a court of justice. It metes out justice as far as it can go, but there are times when mercy is needed, too, and, as Senator Douglas has said, there should be some outside court of appeal and that appeal is really vested in the Government of the day. The motorist to-day is the butt of everybody's gibe.

General MacEoin

I must crave indulgence for a moment to remind the Seanad of two facts. The Section gives power to the Government to remit penalties except in capital cases, and in capital cases that is reserved to the President. Except in capital cases, the Government may commute or remit and so on and then, in sub-section (2), the Government may remit any disqualification and so on.

"The Government may delegate to the Minister for Justice."

Now, they might not.

Mr. Quirke

They might not have a Minister at all. The Government still retain to themselves the exclusive right to exercise this section.

Mr. Douglas

And I think they should.

General MacEoin

They may not delegate it, but they may delegate certain sections of it, in whole or in part. Now, the case made by Senator Douglas is that he thinks it should be by a collective body, that it is a matter for the Government. The Government are not deaf, they are not blind, and I do believe that they read the debates now and again of both Dáil and Seanad. Notice will be taken of what this House has said relating to this section and I think that, if the matter is pressed any further, you will prevent the poor unfortunate Minister for Justice from exercising any power at all. That may be the best thing that could happen. However, I hope that the Government now will have as much confidence in me as the previous Government had in my predecessor and that they will vest that power in me. If they have not that confidence in me, the best thing I can do is to pack the bag. Here is the whole situation. Under the Treaty, the prerogative of mercy was vested in the Governor-General in the same constitutional way as Canada. Then the Governor-General was abolished under Section 2 of the Executive Powers (Consequential Provisions) Act, 1937. Section 2, sub-section (1), of that Act says:—

"Every power, function, duty and jurisdiction which immediately before the passing of the Principal Act, was, by any means whatsoever, capable of being exercised or required to be performed by the King or by the Representative of the Crown (whether on advice, nomination, appeal, or other communication or without any such communication) shall be and be deemed to have been, as from the passing of the Principal Act, transferred to and (as the case may be) capable of being exercised by or required to be performed by the Executive Council, save where and in so far as the exercise or performance of such power, function, duty or jurisdiction is, by virtue of an amendment of the Constitution effected by the Principal Act or by virtue of the Executive Authority (External Relations) Act, 1936 (No. 58 of 1936), conferred or imposed on some other person."

Section 6, sub-section (1) reads:—

"It shall be lawful for the Executive Council, whenever they think proper, to transfer by Order to any Executive Minister any power, function, duty, or jurisdiction which is by virtue of this Act or any Order made under this Act transferred to and vested in the Executive Council."

Mr. Quirke

What is the Minister quoting from?

General MacEoin

From the Executive Powers (Consequential Provisions) Act, 1937. I am pointing out that, under Section 6, the Government made this Order, which has been in operation from that day to this. That Order is the Executive Powers (Consequential Provisions) Order of 1937 and reads:—

"Whereas it is enacted by sub-section (1) of Section 6 of the Executive Powers (Consequential Provisions) Act, 1937 (No. 20 of 1937) that it shall be lawful for the Executive Council, whenever they think proper, to transfer by Order to any Executive Minister any power which is by virtue of that Act or any Order made under that Act transferred to or vested in the Executive Council, and

Whereas the Minister for Justice is an executive Minister, now the Executive Council in exercise of the powers conferred on them by section 6 of the Executive Powers (Consequential Provisions) Act, 1937 (No. 20 of 1937) and every and any other power then in its behalf enabling it hereby order as follows...."

The last paragraph then is:—

"Every power of commuting or remitting any sentence or punishment pronounced or imposed by any court exercising criminal jurisdiction, save and except any power to grant a free pardon and any power to commute a sentence of death, which by virtue of the Executive Powers (Consequential Provisions) Act, 1937, was transferred to and vested in the Executive Council is hereby transferred to the Minister for Justice."

They retained the powers in respect of two matters, the free pardon and the death penalty, but they vested everything else in the Minister for Justice. That is signed and dated 3rd September, 1937. That is the power my predecessor exercised.

Let me be quite clear about it. What I said was that I think, with regard to disqualification in matters relating to the licensing laws, the Minister could circumvent it by removing the endorsement.

It is argued that I could not. It has never been exercised, but I think the power is there, because, in my opinion, the Executive Council have power to remit any punishment imposed by a court—and an endorsement is a matter which the justice decides on the basis of whether the offence is a major or a minor offence—and, if they have not, the President has. There is no power the President may not exercise on the advice of the Government. This Bill, then, is to make it imperative that, whatever power is exercised by the Minister, it is from this Oireachtas that the power comes and not from anything which might have existed in the past. It brings it into accord with the existing Constitution and makes it clear that we are not dependent on a long memo, such as the memo I have here, as to where we got our powers. If I attempted to read this memo, I should be expelled by all and sundry, but if I am invited to address some meeting at which Senator Quirke will be present, I will read it with pleasure. It sets out how the prerogative was established and where it was vested, and is a history of the exercise of the prerogative before and since the foundation of the State.

I have been asked if there were cases in which the Minister exercised this power and I answered yes. I mentioned them in the Dáil and it can be argued that it is scarcely fair, because the persons involved can be identified. As there was no publication of these people's names, to cite them again is hardly fair. In reply to Senator Stanford, as to why all remissions should not be published, I said it was not in the public interest to do so. I can assure the House that I have examined the matter very carefully. It is not that I do not want to do it, but the interests of the State would not be served by their publication. I can assure the House that that is so. It was examined not only by me, as Minister, but by my predecessors, and, where mercy has been extended, it is not in the interests of the State to publish the names; but, in view of the special circumstances relating to and surrounding the cases of persons convicted of being drunk in charge of a car, in the hope that it will be a deterrent and that they will realise fully that no remission will be granted, the name will be published. I think I have gone a long distance, then, to meet the arguments and I suggest that it should be allowed to go through in the firm belief that the Government of the day and the Minister for Justice, if he gets the authority, will never abuse the power which the Oireachtas has given.

Amendment, by leave, withdrawn.

The following Government amendment was agreed to:—

In page 7, Section 23, after sub-section (4), to insert a new sub-section as follows:—

(5) Where a disqualification for holding a driving licence under the Road Traffic Act, 1933 (No. 11 of 1933), is remitted, in whole or in part, under this section, notice of the remission shall be published as soon as may be inIris Oifigiúil.

Bill, as amended, received for final consideration.

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

Mr. Anthony

I want to draw the attention of the House and of the Minister to what I regard as the inadequacy of the punishment set out in Section 11. Sub-section (2) reads:—

"A person convicted of common assault or battery shall be liable to a fine not exceeding £50 or, at the discretion of the court, imprisonment for a term not exceeding six months."

Sub-section (3) reads:—

"Common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise."

I want to direct the attention of the Minister and of the House to the inadequacy of the sentences passed on persons guilty of brutal assault. We read about them in the Press, and, indeed, one might regard assaults on the Garda Síochána as our national pastime. Various prosecutions have been brought against persons, particularly in country areas, who have assembled outside dance halls and other places of amusement and brutally assaulted members of the Garda who, in the interests of peace, stepped in to prevent assault on certain persons entering the halls. This has grown almost into a national pastime. I wonder if the Minister could see to it that the maximum sentences is imposed on these people. I have a number of reports of cases of this character cut from the Press and intended to bring them to the personal notice of the Minister, but this is an opportune time to direct his attention to these assaults, which are quite common throughout the country.

Only two or three days ago, a case of assaults was heard in one of our courts and the district justice sentenced those ruffians to one month's imprisonment each, with hard labour, for assaulting one man, and he bound them to the peace also for 12 months. The local sergeant said that this was a black spot in the district, but on the appeal of the solicitor for the defence, the justice made the sentence suspensory in each case and allowed the order binding them to the peace to stand. The general public and law-abiding citizens regard these sentences as quite inadequate. Persons who have committed brutal assaults, particularly on the Gardaí, have got away with a minimum sentences in many cases, instead of the maximum one.

Professor Stanford

May I speak briefly on the Bill, since I believe I was the first to draw the Minister's attention to the dangers of the powers given in Section 20 to have the courts cleared? I would like to congratulate him on the care he has taken to see that these dangers were removed. Anyone who compares Section 20 with the section in the Bill as originally drafted will see that it is a very different section. I would personally like to congratulate him on the care and foresight he has shown in amending that section.

General MacEoin

This Bill has been discussed in a non-Party spirit in an endeavour to do the very best that could be done. I am grateful to those who have brought obervations to bear on it. Everyone will agree that, as a result of the efforts here and in the Dáil, the Bill has been improved considerably and I wish to thank Senators and Deputies for that improvement.

On the question of Section 11, common assault and battery is the most minor form of assault. If I put my hand towards a person, it nearly becomes an assault. The question of putting in the maximum or minimum penalty is dangerous. You cannot direct the judge or justice as to what sentence he should impose and if you put the minimum penalty the danger is that he would acquit the accused because the penalty would be out of proportion to the offence. When the Bill was here first, this sentence was 12 months and we reduced it to six. The whole question of penalties in this Bill has been carefully examined and we have come to the conclusion that this is the best decision to make.

Assault on the Guards is not assault and battery: it is a much more serious offence and is not in this section at all —unless someone threw an apple at a Guard, which would scarcely be regarded as a serious assault, though one could be fined and get six months' imprisonment for it.

Mr. Quirke

Senator Anthony reminded me of something which I should have thought of myself, in connection with sentences imposed for particular offences. I agree with the Senator who has just spoken, who said that Section 20 has been much improved. There is one sub-section there dealing with the question of indecent assault. I went to at least two previous Ministers for Justice in connection with this particular matter and I would appeal to the present Minister, and I will keep on appealing to the next and to subsequent Ministers until something is done about it. In this country, crimes of this kind are not very common, but they are far too many and the sentence is far too light. About five or six years ago, a man was charged with two such offences and it transpired when he was brought up in court that he had just come out of prison having done a term of six months for a similar offence. He got six months, I think, on each of the two subsequent offences and went back to gaol again. I was not in a position to follow his history, but I am satisfied that it was a succession of the same crime. To my mind, the law needs to be changed in connection with that particular type of individual. I do not think six months is an adequate sentence, not do I think six years would be adequate. A man whose record shows that he is a regular offender in that line should be put in a home of some kind, as he is not fit to be at large. It is completely different from any other kind of offence. I appealed to a couple of Ministers heretofore and I will keep on appealing. I appeal now to the present Minister to look into the matter very carefully and see if something can be done.

Within the last week, a similar offence was committed. The man has not yet been tried and it is not fair to discuss it, so I do not propose to do so, but I will mention the matter privately to the Minister afterwards. I think people of that kind are subnormal and are mental cases and that they should definitely be put away. It is all right for people to read of cases happening to someone they never saw or heard of, but it may have reference to any of our families next week or the week after and then there may be a different view taken of it. It is a very serious matter. I think it is a case of mental disease in some form. It is absolutely absurd that people should be brought up time after time for similar offences of that kind and get away with being just out of business for a few months and then allowed to start out on the same record when they come out again.

General MacEoin

The only reference in the Bill to a particular type of offence is for the clearing of the court in certain circumstances. There is no punishment in this Bill for it. May I point out to the House, apropos of replying to the Senator, that the penalties for these offences are very grave and that it is at the discretion of the judge to decide what penalties he will impose? Neither the Government nor the Minister or anybody else can advise or direct the judge as to what penalties he should or should not impose in a particular case. The very thing that the Senator was arguing here this evening, that the Minister or the Executive should have no overriding authority, certainly operates in this case. Therefore it is within the discretion of the judge to give six months, 12 months or up to seven years. There is a huge difference between six months and what the Act provides, seven years.

Mr. Quirke

Is the minimum not six months?

General MacEoin

There is no minimum. The judge decides the case on its merits and I think you must leave the matter to his discretion. The only reference to the question here is whether the court should be cleared so that it does not arise on this Bill. There are sufficient penalties for any of these offences if the judge wants to impose them.

Mr. Quirke

It is a matter of opinion. I cannot see why a minimum penalty is laid down in connection with other matters and not with this. I think there are a lot of people in the country who would agree with me and disagree with the Minister. The Minister says seven years is enough; I say that 70 years would not be enough as the matter should not be dealt with on that basis at all. Just as a man found drunk in charge of a car should be brought before a doctor I say that a man who is found guilty in a case of this sort for the first time should be brought before a board of competent doctors who would deal with his case and if necessary he should be transferred to an institution for criminal lunatics. Such a man is not an ordinary man; ordinary human beings do not commit this offence. Such a man should be put away from society altogether and possibly treated. I am not a doctor or a lawyer but there may be some treatment which would be successful. It is a matter which needs very serious and immediate attention and I would appeal to the Minister to take it up with the Government if necessary.

General MacEoin

I am in agreement with the views expressed, but seven years is a high figure. The Senator is complaining about the six months' period but there is a long stretch between them.

Mr. Quirke

I am sorry for speaking again but the fact is, as far as my recollection goes—and I have been very much interested in this—that the general thing is that a man is sentenced to approximately six months. I have yet to hear of a fellow being sentenced to seven years. Again I repeat that it is not a case for a term of imprisonment at all; it is a case for putting people away for an indefinite period and if they can be cured by treatment by all means release them; exercise the prerogative of mercy that we have been talking about all day, but if they cannot be cured they should not be at large any more than you would release a wild animal out of the Zoo.

Question put and agreed to.

Ordered: That the Bill as amended be returned to the Dáil.