Amendment No. 1 is consequential on amendment No. 2, so they should be discussed together and the decision on No. 1 will also govern No. 2.
Firearms Bill, 1971: Report and Final Stages.
I move amendment No. 1:
In page 2, line 11, after "hereby amended," to insert "(a)" and to add after "firearm" in lines 13 and 14 the following:
"(b) by the addition, after the definition of ‘prohibited weapon', of the following:
‘the expression "prohibited substance" means and includes any substance capable of exploding whether or not it may be detonated by the addition or admixture of some other substance and capable on explosion of being dangerous to life or property except such substance as may, by regulation made by the Minister (which he is hereby authorised to make), be specifically excluded from this category as having in his opinion a common and legitimate use such that the application to it of section 17A (1) of this Act would be unreasonable.'"
I should like to compliment the staff of this House, and the printers who are employed by them, on their baffling efficiency in getting the amendments, which I gave them only late yesterday evening, checked, typed, set in type, printed, posted and delivered to the houses of Members living in Dublin at eight o'clock this morning. I would not have thought it possible, and I think they deserve the compliments of the House for that performance.
Senators
Hear, hear.
Yesterday I admitted that the amendment which is now replaced by amendment No. 1 was too broad. I tried to cure this defect by extending the amendment which I spoke about yesterday by providing the Minister with power to exclude from the category of prohibited substance whatever he likes. I admit that this is, in a sense, taking the easy way out, because I have not got access to a complete list of dangerous substances, but I take it that the Minister has and that it would be easy for him, guided by expert advisers, to provide a list of substances which are potentially dangerous but have a normal or usually innocuous or legitimate use such as to render their inclusion in this category unreasonable. I am not in favour, on the whole, of delegating ministerial powers more than is necessary, because as much as possible should be done on the floor of the Parliament. However, in a case like this, particularly when an amendment from this side of the House is concerned, I am suggesting something which is not unreasonable.
If the House will look at what I now propose the House will see that the amendment section of the Principal Act is proposed to be extended by an additional clause defining a prohibited substance as something
capable of exploding whether or not it may be detonated by the addition or admixture of some other substance and capable on explosion of being dangerous to life or property except such substance as may, by regulation made by the Minister (which he is hereby authorised to make), be specifically excluded from this category as having in his opinion a common and legitimate use such that the application to it of section 17A (1) of this Act would be unreasonable.
The only bearing which this amendment has is on the amendment for which it is preparatory, namely, amendment No. 2 in which my suggestion, which I pressed here yesterday with as much force as I could, is that the State ought to impose some penal measure on persons who procure, incite or organise in some way the importation of lethal weapons, including explosives and prohibited substances, into the North of Ireland by whatever route they can devise. I had great difficulty here yesterday in getting across to the Minister what I had in mind. The Minister does not have the name of being unintelligent and I cannot believe that he did not understand the point I was making. He repeatedly came back to the law about exporting arms from this jurisdiction into the North. I am not talking about that matter. He then spoke about another matter, namely, the futility, as he described it, of attempting to control offences which would be committed outside our jurisdiction. I was not talking about that matter either.
What I wish to be done is to make it an offence for someone within our jurisdiction to conspire, within our jurisdiction or while inside our jurisdiction, or incite or procure the importation of lethal weapons into the North of Ireland. I shall deal in a moment with what I have discovered to be the legal aspect of this matter. Before I do so I want to say something on the Minister's point that it would be futil to make such a provision. The statute law of this country is full of futilities.
There are statute acres, or Irish acres, of law which are futile and therefore are dead letters. They are never used. When, for instance, was a prosecution last instituted in respect of the exportation of documents or pictures contrary to the 1945 Act? I do not think there ever was such a prosecution. I could spend a day naming statutes, and sections of statutes, which have been dead letters and futile.
If we want an instant example of futility, let us look at this Bill now before us. It provides a variation in penalties which, so far as the variation is downwards, is utterly needless and represents, in no respect, a public demand or even a sectional demand. In so far as the variation is upwards it is not going to deter the kind of people we have in mind. It is already within the jurisdiction of a district justice to impose a nominal sentence or to apply the Probation Act for an offence charged under the 1925 Act. Justices regularly do so, as the Minister very well knows, having been in practice as a solicitor himself. In the vast majority of criminal offences tried in the district courts the maximum penalty is not imposed. There are cases of mandatory penalties, but in the vast majority of cases in which a justice has a discretion to vary, up and down a scale, he does not impose the maximum sentence and he has jurisdiction to impose a minimal sentence.
It is a waste of the time of this House, and of the time of the civil servants who have to prepare these documents, to come in here asking us to split firearms into categories for the purpose of reducing penalties in one particular category. I cannot see the point in that and there is no public demand for it. The Minister did not even pretend there was a public demand for it. There is not even a sectional demand for it and it is utterly futile.
Now go to the other end of the scale, where we have the increase in penalties in the case of the more dangerous or military-type firearms. Does the Minister seriously think that the kind of people in this country—and they exist unfortunately—who possess unlawful firearms and intend to use them unlawfully will be stopped by this bit of paper? Does he seriously think that the kind of prosecution which can be brought on foot of it, or the threat of such a prosecution, will stop them? If so, he is an optimist.
As I said on the Second Stage, this section 3, together with section 5 which deals with firearms dealers, is just so much camouflage intended to distract attention from the guts of the Bill which is in section 4. The purpose of that section is something with which I agree. My criticism all along has been that it is not enough to put section 4 into the reformation of our firearms code at a time of national danger such as exists at present. It simply does not go far enough. The Minister has described my amendment as a futile one, but, if passed, it is far more likely to be an offence which will be regularly committed than many of the things which are in our statute law already. I think this is unworthy of this Minister or of any Minister.
I cannot refrain from expressing the view that the Minister's attitude towards my amendment is governed by pique of some kind, whether that pique be his own or that of somebody advising him. I cannot see why my amendment should not get a rational discassion and why I should not get straight answers to the straight questions which I posed here yesterday. The Minister still has not given me any straight answers. He pretended to misunderstand the purpose of this amendment. For example, yesterday he said that we could not take it upon ourselves to control matters which happen outside our jurisdiction. In putting it like that I am stating his case even more strongly than he stated it himself.
Certainly, we cannot control things that happen outside our jurisdiction absolutely, but we can go some distance towards controlling them. What I am suggesting, and what this side of the House would like to see, is an extension of this Bill so as to make it unlawful for someone in our jurisdiction to procure or organise the importation of deadly weapons or substances into the North of Ireland. What is futile about that? The offence which I pose is that of conspiracy, incitement or procurement of weapons for importation to the North of Ireland. I am not seeking that Irish courts should be asked to try the offence of actually landing these weapons in the North of Ireland. We are talking about the offence of organising or procuring such a landing committed by somebody within the jurisdiction of this State.
I know I will not have an opportunity of repeating this, because this is not a Committee Stage, but I hope I have said enough on the matter to make it clear to the Minister, beyond any possibility of sheltering behind a pretence of not understanding it, that what I am getting at is a conspiracy or an attempt to bring arms into the North of Ireland by any route be it by balloon, a helicopter, a fishing smack or a trawler. Even though the arms do not go through this jurisdiction, the offence would be constituted by activity within this jurisdiction. That activity could include the making of telephone calls, the holding of conversations or the writing of letters. The Minister knows perfectly well that there was a trial in this city a few months ago of a similar kind in which conspiracy was the main count, the only count I think, in the indictment. The alleged offence, if it had been established, would have consisted of just such matters.
As I said yesterday, I am not trying to trip the Minister up as lawyer to lawyer. I did not expect him, off the cuff, to answer the legal problems arising here. I did not ask him to do so. I mentioned this matter eight days ago. If this House is not going to be taken seriously, to the extent that serious speeches which are made on the Second Stage are looked into in the expectation that they will provide material for amendment at later Stages, then I think we are wasting our time having a Second Stage to Bills at all.
The Minister mentioned phrases such as public international law and private international law. I have not seen the written report of his speech and I could not be positive about the phrases he used until I see them in black and white, but the impression I got from them was that he felt there might be some rule which would make it wrong or impossible for a State to legislate in regard to a conspiracy or an incitement to commit an act which would take place outside its own borders. Yesterday I gave the Minister my opinion off the cuff, without claiming that it was necessarily right, that if somebody in this State conspired to murder somebody outside this State that it would be an offence triable here. I have since established that I was speaking the truth. It is an offence in this State to conspire in the murder of somebody outside the State. It is an offence by statute and it has been part of our law for the past 110 years. The Minister will find it in section 4 of the Offences Against the Person Act, 1861, the larger proportion of which is still in force in this State. Some sections of it have been repealed, but section 4, according to the index of legislation prepared by the Statute Law Reform and Consolidation Office, which is under the Minister's charge, is apparently still part of the law, unless it has been changed in the last three years. I am willing to be interrupted and contradicted at once if I am wrong about this, but if I am right about this the law certainly was, until 1968, and so far as I know, still is, as follows. I hope the "republicans" on the far side of the House will not laugh at the references to "her Majesty".
All persons who shall conspire, confederate, and agree to murder any Person, whether he be a Subject of Her Majesty or not, and whether he be within the Queen's Dominions or not, and whosoever shall solicit, encourage, persuade, or endeavour to persuade, or shall propose to any Person to murder any other Person, whether he be a subject of Her Majesty or not, and whether he be within the Queen's Dominions or not shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for any Term not more than Ten and not less than Three years— or to be imprisoned for any Term not exceeding Two years, with or without Hard Labour.
I am sorry for the reference to the Queen. If the Soldiers of Destiny had not liked this they could have repealed or amended this section specifically. I hope I will not get any facetious references to the Queen hereafter.
That has been part of our law for 110 years. In other words, if I conspire with the Minister or with anybody else to murder somebody in the North Island of New Zealand, which the Minister mentioned here last night, that is a very serious offence under the law of this State, or so I understand it unless the law has been changed in the last three years, and unless section 4 of this Act no longer applies. Certainly, as late as 1968 it would have been a very serious offence for me so to conspire to murder, although the murder, if it came off, would have taken place in the North Island of New Zealand.
That is a statutory instance and as far as I have been able to discover overnight—and my library in this regard is not big—there is doubt as to whether in the ordinary common law, apart from a statutory offence, it is possible to try a conspiracy. As far as I can gather there is doubt as to whether it is indictable in this jurisdiction or in Britain to conspire to commit crimes the effects of which would be felt in some other jurisdiction. But there is certainly no doubt about this—that there is a legislative precedent still on our Statute Book after 110 years which does make it a very serious offence indeed to conspire to commit an offence which will take effect outside our borders.
Therefore, that part of the Minister's argument—and I myself do not see that it has any real relevance because this is a sovereign Assembly as the Minister reminded us the other day— falls to the ground. We have a clear precedent here of a case in which conspiracy or even advocating the commission of murder outside the jurisdiction of the State is a serious offence.
I have here a reference to a case which would illustrate the workings of this Act. It is a case reported in 1881 in which the defendant was a man by the name of Most. He was indicted under section 4 of the Offences Against the Persons Act, 1861. The encouragement and endeavour to persuade to murder proved at the trial was the publication and circulation by him of an article, written in German in a newspaper published in that language in London, exulting in the recent murder of the Emperor of Russia, and commending it as an example for revolutionists throughout the world.
The jury were directed that if they thought that by the publication of the article Most did intend to and did encourage or endeavour to persuade any person to murder any other person whether a subject of Her Majesty or not, and whether within the Queen's dominions or not, and that such encouragement and endeavouring to persuade were the natural and reasonable effect of the article, they should find him guilty. It was held that such direction was correct.
I am not interested in the Emperor of Russia; I am interested in the people in the North of Ireland, and that is the kind of law we should have in their regard. For the Minister to speak about them as though there was the slightest resemblance to our situation visá-vis them and our situation vis-á-vis the North and the South Islands of New Zealand shows what a sham, what a bogus set-up has existed in this Government all along in regard to the North of Ireland. They take an interest in it only when they have to. When they do, I admit, it is sincere enough because they are human beings like the rest of us and do not like to see people being killed or hurt. I accept that unreservedly. But they have no real interest in it. I charge them in this Bill, which goes almost no distance to forestall violence in the North, with showing that sham to the world. I do not want to be part of that.
When I go abroad, to England or elsewhere, I have to defend this rotten Govvernment. I have to stand up for them and I have to say that we are doing our best—and by "we" I mean all the parties in both Houses and the whole Irish people and their political representatives—to keep peace in the North. That is what I have got to say. How can I say it with an easy conscience when I find that in a Bill like this pique—that is all it is—on the part of the Minister or his Department allows him to describe a seriously intended amendment as, first of all, a piece of party political rhetoric and, secondly, as a piece of lawyer's codology? How dare he speak like that about a serious amendment?
What is the Senator's performance for 20 minutes now?
I have put down an amendment, as I am entitled to do in this House, and I expect it to be dealt with seriously. Of course I am annoyed when the Minister does not deal with it seriously. The Minister represents a party here which in 1937 proposed to the people of Ireland the enactment of a Constitution of which Article 2 reads as follows:
"The national——"
Read out the 1925 Agreement which sold the Six Counties.
We never had it and you never had it either.
Read out the 1925 Agreement.
We cannot sell something we never had.
These interruptions must cease. I would ask the Senator to pay no attention to interruptions and to come closer to the amendment.
I would ask the Chair to stop that Senator over there from talking moonshine.
This Article was enacted by the people, as Senator Ó Maoláin reminds us and it says:
"The national territory consists of the whole island of Ireland, its islands and the territorial seas."
I want the Minister to take that article seriously and I want him to apologise for talking about the North and South Islands of New Zealand. We have it in our power to make at least a gesture towards reducing the possibility of violence in Northern Ireland, a gesture which would be less futile than some of the things which are already in this Bill. I cannot see why we cannot get a serious answer, a straight answer, on law or on the facts from the Minister in regard to the points which I have advanced in connection with these two amendments.
This House is entitled to a sober statement from the Minister of why he feels that we have no power or no right or that it would be in some way in conflict with some immutable principle of international justice—which it is not —to prohibit the organising within our territory of the bringing of arms into the North by any route or means whatsoever. Anything the Minister said here yesterday, and he said a lot, does not come within a million miles of persuading me that he is willing to face up to this point. I should like to hear what he has to say about it now.
I should like to hear the Senator on the 1925 Agreement.
If the Senator puts down a motion about it I will discuss it all night.
I have listened to Senator Kelly and I accept that he is sincere in putting down this amendment. He has a tremendous knowledge of the law, but all too often, with due respect to everybody in the legal profession, you could get carried away up to the point where professionals are catering for the professionals. This is not the spirit of any legislation.
The Bill is an improvement on the law. It achieves its purpose and tidies up the law. You could go a long way with a lot of the arguments put forward, but you have to ask yourself when will you stop in regard to explosive substances. You could finish up by making it an offence for a man to carry a can of petrol to his car if it broke down. That is an explosive substance. A man could not go out on his farm with a bottle of weedkiller. There is no end to the trend of imagination here. There must be a balanced approach to this matter as in every other matter.
At a glance anyone can see that the measures proposed here are sound and straightforward and easily understood by the people to whom this measure would apply, and this is the point. You can speculate as much as you like, but I believe that the purpose of bringing in the Bill is to make it crystal clear to the public in general, and especially to those who may be involved in committing an offence where they stand. The question has been asked: what does the Minister mean by giving an amnesty for 14 days? To me it is quite simple and quite easily understood. It means that anyone who has arms or illegal weapons in his possession and gives them up within a period of 14 days will not be prosecuted. But that same intention does not mean that a man can throw a machine gun in the back seat of his car, drive from Cork to Donegal and say: "I intend to give those up."
The Minister has made this crystal clear for those who want to understand it. I would rather hope that everyone who looks at this Bill and reads it will understand for whom the Bill is intended and what its aim is. I am satisfied that you could accept this amendment and indeed you could accept many more amendments, with "ands", "ifs" and "buts". It is really an entanglement right through, and I say in all sincerity to Senator Kelly, whom I respect as being serious: "Forget about these umbrella provisions and aim at the section of the people whom it is necessary to cover." That is my non-professional attitude, but I think it represents a fairly wide section of opinion and that that is the view held by those who will be affected by the amendment and the changes proposed in the Bill.
I supported this amendment put forward by Senator Kelly yesterday because I thought it would be desirable in the circumstances to avoid the offence of a conspiracy or a soliciting here to have arms sent from another country to Northern Ireland. This is necessary to close the loophole which Senator Kelly has persuasively argued exists in this Firearms Bill. For that reason I, too, spent some time last night looking into the legal aspects of it and I would agree with Senator Kelly that it is an offence to conspire to commit murder abroad. It is an offence to conspire or to solicit or to procure bigamy. These are extra-territorial crimes. I think the Minister would accept that we can borrow our thinking in the criminal law from the principles set out in Archbold which relate to the English law, because our principles are similar. In the latest edition of Archbold it is clearly set out that a conspiracy to commit a crime abroad is not indictable in England unless the contemplated crime is one for which an indictment would lie in England.
One problem here is that the movement of arms from a foreign country to Northern Ireland would not be indictable here. Substantially I think that is what the Minister was saying yesterday, but it is also clear from a House of Lords case in England, the Board of Trade against Owen in 1957. May I just briefly summarise the facts of that case? It is analogous to the position for which we are trying to cater. The conspiracy charged in that case was a conspiracy to defraud authority established by the Government of Western Germany to control the export of metals by causing that department to grant licences for export of metals by fraudulent misrepresentation that the metals would be supplied to and consumed by Irish manufacturers, well knowing that such metals were in fact to be exported to eastern European countries. The evidence showed that the representations were designed to be made in Germany and the licences obtained there. It was held by the House of Lords, affirming the Court of Criminal Appeal, that though such conspiracy was to be regarded as a conspiracy to obtain a lawful object by unlawful means rather than a conspiracy to commit a crime no indictment for such conspiracy would lie in England since the unlawful means and the unlawful object were both outside the jurisdiction. But this case did reserve and reopen the position whether a conspiracy in England intended wholly to be carried out abroad may not be indictable in England on proof that its performance would produce a public mischief in England or injure a person in England by causing him damage abroad.
It is in this area that it would be very easy to argue that the importation of arms from abroad to Northern Ireland, on a conspiracy or solicited from here, would definitely cause a public mischief in aggravating the tension in the country, in providing a potential source of trouble, in creating friction in the two communities. We would not be in conflict with private international law or public international law in asserting jurisdiction in these circumstances to declare that if there was a conspiracy in this jurisdiction or if there was solicitation or incitement to a person from abroad to import arms into Northern Ireland, that affects the community here. It affects the stability of the community, it affects public order here and we would be perfectly entitled to assert this jurisdiction in respect of the offence committed abroad. I give this opinion with certain deference because, like the Minister, I do not consider myself to be a legal expert in this. However, it is an important point and if it is open to us to assert the jurisdiction, if it is possible to have the offence of a conspiracy here as set out in the amendment, then it is very well worth doing because it would prove our desire to prevent arms being imported into Northern Ireland since the original impetus came from the South.
I wonder could the Senator give me the reference to the quotation?
Yes. It is the 37th edition of Archbold, beginning page 1349.
I am afraid I have only the 36th edition.
The Minister can have a loan of mine.
I am glad a number of speakers intervened between Senator Kelly and myself because it mellowed me. Almost from the time he started, I was trying to think of what I could say politely in reply. Basically I have nothing more or less to say on these amendments than I had to say last night on the corresponding amendments on the Committee Stage. What I believed then and what I said then, I still believe and must repeat. There have been some minor amendments made in the Committee Stage amendments by Senator Kelly inasmuch as in the first of the amendments he now sets out that the Minister by order can exclude certain substances and mixtures from what he defines in his amendment as prohibited substances. I gave the example last night, and Senator Kelly agreed with it, that an offence would be committed, for example, by a man driving his motor car from Dundalk to Newry because he would have petrol in the tank of his car. I would have to exclude in the order that Senator Kelly would seek to have me make, petrol in tanks of motor cars. It is only when you consider that sort of situation that you discover what else would have to be done. If a housewife in Newry decided that she would do her weekend shopping in Dundalk and, in the course of her shopping, buys a quantity of sugar and drives back to Newry by bus or car, she would be committing an offence because sugar is a substance which would come within the definition of prohibited substance as set out in Senator Kelly's amendment. Sugar is a substance to which something can be added which could cause an explosion.
These are two of the more obvious examples which come to mind and if I or any of my officials were to sit down and make a comprehensive list of all the different things that I would have to exclude by order from Senator Kelly's definition of prohibited substance, it would run into pages and pages, if not to volumes. An enormous number of household substances in common household use every day would probably have to be covered by it.
A type of blanket provision such as this with something added on to it at the last minute, saying "This is very wide all right, but the Minister for Justice can take whatever he likes out of it"—that is not the sort of drafting that one should expect in a Bill or an amendment that should be passed by this House.
If I may go on to the second point the Senator was making, the disputed point about crimes committed outside the jurisdiction, etc. The most effective answer that could be given to Senator Kelly on that was Senator Robinson's statement. While she does not disagree with Senator Kelly, at least she acknowledges freely that there is very considerable doubt as to whether or not any such provision is open to us at all. There must be doubt apart from the doubts that exist under public and private international law. There must be constitutional doubt on this point.
Professor Kelly cited at great length statements on murder cases and, in particular, a murder case in England some time in the last century. He is unquestionably correct, but what Senator Kelly unfortunately did not go on to say is that it is well recognised in almost every jurisdiction that murder is an extra-territorial crime. It is in a completely different category to most other types of crime. It is a pity that Senator Kelly would not make this clear because the provisions relating to murder are different to the provisions that relate to other crimes and have always been so and so far as I know, are so, in every common law jurisdiction.
The position with regard to murder is that because we recognise it as an extra-territorial crime, if a murder is committed any place in the world and the perpetrator of the murder happens to find himself within our jurisdiction, it is open to us to charge him and it is open to our courts to try him. We normally would not do this because we would not be able to adduce sufficient proof. Witnesses would have to be brought from possibly some remote part of the world and this might not be possible. The prosecution would not take on themselves a futile exercise of that kind. If the country where the crime took place issued a warrant for the murderer's arrest, we could extradite him to that country to be tried.
This amendment is put down and is pushed very strongly by one Senator who happens to be a Professor of Law, which is by the way, and it is pointed out very rightly by another Senator, who also happens to be a Professor of Law, which is by the way, that there is at least considerable doubt as to whether the thing is feasible at all. Senator Kelly, in all fairness, leaving aside this feeling against me he seems to have, should recognise that any Minister with any sense of responsibility cannot accept a sweeping amendment such as this, where there is the gravest doubt as to whether it is legally acceptable, apart from any other implications or complications.
I may point out I was not expressing doubt but was supporting the amendment for the reasons I gave.
The Minister completely misunderstood everything Senator Robinson said.
Could this debate be deferred until we have the debate on higher education? It seems more appropriate to that debate than to this one.
I will give it to you then, too.
I have no doubt about that.
It is the sort of debate that would be in more congenial surroundings in the Supreme Court. Those taking part in it would be paid large fees.
All this Fianna Fáil sneering at the law. You are quick enough to shelter behind it when necessary.
You are pretty good at the sneering yourself.
I sat without interrupting for 20 minutes and listened to a most extraordinary kind of low pettiness from Senator Kelly this morning. There is a great deal more I might well be provoked into saying but I choose not to say it, notwithstanding the provocation. I have said enough to show that by any standards these amendments are unacceptable. They are futile. My saying this will probably cause Senator Kelly to go into orbit once more, but the fact is they are futile. Any amendment that seeks to require me to make an order to say that a woman can buy a pound of sugar in Dundalk and bring it over to Newry, and that if I do not make the order she will commit a serious criminal offence for which she can get a couple of years in jail is the height of nonsense. For Senator Kelly to go on in the sanctimonious, sneering way that he does about this sort of silly amendment and make a major issue out of it, I think tends only to bring the House into disrepute.
As one who is extremely unlikely ever to plead before the Supreme Court, I still find it incumbent on myself to do my duty here as a legislator. Senator McGowan suggested that in this debate we were concerned with "professionals catering for professionals". Let us come back to reality. We are Irishmen and Irishwomen legislating on matters that affect Irishmen and Irishwomen, North and South of the unfortunate border.
I have listened to the discussion this morning, as I listened to what was said last night. Apart from the question of the inclusion of explosive substances, with which I am not concerned, but paying attention to this question of an act of conspiracy, incitement or procurement within our jurisdiction, it appears to me that the Minister had one answer only to give to the argument put forward, and that was to say that Senator Kelly had been answered by Senator Robinson. I was disturbed when I heard the Minister say this so confidently. I was disturbed because I felt that I must have completely misunderstood what Senator Robinson said. I was somewhat relieved to find her protesting that she, herself, believed that it was open to the Minister to make this sort of thing an offence in our law.
It may well be that there is some doubt on this question. It may well be that the Minister would be able to tackle this problem better if he had more time. However, it was not this side of the House that wanted the Report Stage taken last night and, if not last night, first thing this morning. We have here a serious issue. It is said of us by many people in the North, in the course of propaganda, that the attitude of many of us in the South, in the Legislature, towards Northern Ireland and to certain sections of the people there is best described by the quotation that "we are willing to wound, yet afraid to strike". This accusation is laid against us. If we do not take seriously the proposition that is being put before us today, we are tending to lend support, and we are certainly leaving ourselves open, to that charge being laid against us again. It is an extremely serious matter that anybody within our jurisdiction here should be concerned with any attempt to bring arms into the northern part of this country.
The organisation of the transport of any arms to Northern Ireland would do great damage to the fabric not only of our State but of our whole nation, and that damage would be independent of the route by which those guns travel. We must realise that what this Bill is trying to do is to make sure that nobody within this jurisdiction is guilty of any act of any type whatsoever which will cause damage of that sort. To my mind this is the net point which is being brought forward here, and it has not been met by the Minister. If the Minister looked at this issue, with more time and away from the atmosphere of this House, he would realise that this part of the amendment which is concerned with making it an offence to do any act which ultimately results in the importation of firearms into Northern Ireland is in line with what he set out to do when he brought in the whole of this amending Bill. It is extremely unfortunate, when the matter has been brought forward, that the Minister has set his face against it so totally.
The amendment has nothing to do with firearms. It is dealing with explosives.
The Minister has not even read the amendments.
I am sorry. The second one covers firearms as well. The first one deals with what are called prohibited substances.
When I started to make my contribution on these amendments that are being debated together, I indicated that I did not intend to concern myself with the question of explosive substances. However, I was concerned about the point of the commission of acts within the State and I went on to make the case on the basis that I was going to talk on the question of firearms, and on that question alone, so as to exclude this other point which is also a matter of contention.
Amendment No. 2, as I read it here, seeks to make it an offence for anybody to do certain things which result in the sending into Northern Ireland of any firearm, ammunition, or prohibited weapon. That is what I am concerned with here this morning. The proposal that we should prohibit acts which result in any of these things being sent to Northern Ireland is something that we must take extremely seriously. Whether we add other prohibited substances is a second question. It is unfortunate that because of the way in which these amendments are brought we have two net points here in amendment No. 2. I suggest that we leave aside this question of prohibited substances. In saying that I am not saying that I agree with the Minister and that I disagree with Senator Kelly. All I am endeavouring to do is to focus attention on the remaining point: that it is equally harmful to the citizens of this country. By whatever route arms, ammunition or other dangerous substances travel into Northern Ireland, the political, physical, social, and psychological damage will be equally real.
The Minister has not said anything here this morning which would remove my particular concern on this point. I am not concerned with this, as a professional lawyer but listening to the debate, I feel that a case has been made and the case has not been answered.
I want to make it quite clear that I speak first of all as a pacifist. I believe that only our Creator can give human life and therefore a man who takes the life of another is, to a great extent, taking the power of the Creator. It is only in the most extreme circumstances that human life can either be taken or maimed. That is my personal, firm conviction.
History has proved down through the ages that force of arms has always created more problems than it has solved, whether in European wars, world wars or otherwise. Having said that may I say that it seems to me, listening to this debate, that to a great extent we have been arguing in a vacuum? The first amendment of Professor Kelly is undoubtedly proposed with the bona fide intention that explosive substances of any kind or substances that can cause damage should be included in the prohibition. I sympathise with the difficulty and the problem he has had in trying to frame the definition, because so many simple substances when added to one other item can be made into a very dangerous explosive substance. For example, most detergents, sugar, petrol, zinc powder and hundreds of others when added to one other item can make a most dangerous explosive substance.
The whole matter is covered much better in the definition of the Principal Act than in this amendment. I shall read the definition of the Firearms Act, 1925, which is incorporated in this Bill:
The word "ammunition" (except where used in relation to a prohibited weapon) means ammunition for a firearm but also includes grenades, bombs, and other similar missiles whether the same are or are not capable of being used with a firearm, and also includes any ingredient or component part of any such ammunition or missile;
This seems to me to cover a whole range and makes it clearcut. It removes the possibility of government by ministerial order and it enables the citizens of the State to know exactly where they stand. It includes any missile capable of exploding whether the same are or are not capable of being used with a firearm, and it includes every ingredient or component part of any such ammunition or missile. That is something that is clearcut, something that is not vague. Above all criminal law must not be vague, it must be clearcut.
Regarding the second amendment of Professor Kelly I shall again quote from the Principal Act the portions that are not amended by this amending Bill now before us:
It is section 16.
It says:
"(1) It shall not be lawful for any person to consign—
(a) for export from Saorstát Éireann, or
(b) for removal from one place in Saorstát Eireann to another such place,
any firearm or ammunition——
Ammunition is included in the definition I have given. I also submit it includes everything Professor Kelly has set out in his amendments.
——unless such export or removal is authorised in writing by the superintendent of the Garda Síochána of the district from which such firearm or ammunition is consigned for export or removal.
(2) Every person who consigns for export or removal as aforesaid any firearm or ammunition contrary to the provisions of this section shall be guilty of an offence under this Act and shall be punishble accordingly."
The penalties under the Act include an indictable offence. A conspiracy to commit a crime of that nature is in itself a crime. There is no necessity to pass special legislation for that purpose. Punishments are provided for in section 25 of the Principal Act, which states:
Any person who commits an offence under this Act in respect of which no other punishment is provided by this Act shall be liable in respect of each such offence——
(a) on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment with or without hard labour for a term not exceeding six months, or to both such fine and such imprisonment; or
(b) on conviction thereof on indictment, to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment with or without hard labour for a term not exceeding two years or to both such fine and such imprisonment.
A conspiracy to commit that offence is, in itself, a crime. Section 4 of this Bill states:
For the removal of doubt it is hereby declared that in section 15 of the Principal Act references to life and property include references to life and property outside the area of application of the laws enacted by the Oireachtas.
Once that is included as a crime a conspiracy therefore to export arms, whether it is to the North of Ireland, France, Germany, England, or Scotland, for the purpose of endangering life or damaging property is in itself a crime. Perhaps somebody would enlighten me because I cannot see the necessity of introducing special amendments. I have the very highest regard for Professor Kelly as a professor in his own chosen subject but I find it absolutely impossible to understand the underlying purpose of the amendment if it is something to prevent and to strengthen the powers of the authority in prohibiting or preventing the export of arms to Northern Ireland or to anywhere else for that matter.
Senator Nash at least paid me the compliment, which the Minister did not do, of trying to meet my points in a rational way, even though I think his arguments are wrong. We covered most of the ground dealt with by Senator Nash on the Second Stage and on the Committee Stage. Very briefly, the answer to what he said in regard to ammunition is this. The definition of ammunition, as I have already said on the Second Stage, only includes components of a missile or things which can be put into a missile. If we are removing doubt, as we are in section 4, this would be something to remove doubt about. What I am doubtful about is whether six sticks of gelignite with a detonator attached to them put in a suitcase and left in an entrance hall of a house is a missile. My own feeling is that it is not, but I know that it is arguable.
It could be a bomb.
It might be a bomb.
Or other similar missile.
Yes, or other similar missile. The genus which obviously it is intended that bomb should be part of is a missile. It is arguable—and, since we are removing doubt, doubt should be removed here too—that a substance which is placed in such a way as to cause personal injury or damage and which is not a missile of any kind at all may be outside the definition of ammunition. If Senator Nash were right about this, then I would freely admit that my first amendment would be superfluous, but I do not think he is right about it. The word missile implies that anything which does not achieve its lethal effects through being discharged through the air is not covered by the definition of ammunition. The Minister—he did not meet any of my points rationally —did not make that point, nor was he advised to make it, although it would have been an obvious point to make if his advisers had thought it an adequate answer.
We also covered, on a former occasion, some ground mentioned by Senator Nash in connection with section 16. I repeat now, for the seventh or eighth time, that the point of this amendment is not to catch merely the question of exporting guns over the land border here to the North of Ireland. I accept that that is already caught by section 16. Anyone reading the section for the House, as Senator Nash has done, would see that immediately. What I am trying to catch, in spite of the Minister's idea that it would be futile, is the organising by people, within the boundaries of our jurisdiction, of the importation into the North of Ireland of deadly weapons or substances by any route, whether it be over our land frontier or otherwise.
I am not an expert on how easy it is to import guns into the North of Ireland otherwise than by our land frontier, but I know there is a substantial amount of guns in Northern Ireland and they did not all come over the land frontier. I am perfectly certain that some of them arrived in the North of Ireland with the connivance of people within this jurisdiction. I went out of my way yesterday to say that I do not mean this is done just on one side. It may very well be that there are people in this jurisdiction using this jurisdiction as a refuge for organising the supply of arms to people on the other side of the Border, on either "side" of the political confrontation in the North.
The reason for this amendment is to extend the effects of section 16 so as to penalise the procuring or bringing of deadly weapons into the North of Ireland if that procuring is organised by somebody inside our jurisdiction. I will not have an opportunity of making that point again. I realise that Senator Nash is making an honest and polite attempt to deal with my amendments, and I hope that I have shown him that his replies, on both these points, do not cover the loopholes which I am trying to cover.
Senator McGowan's intervention was also polite, except for his reference to the tendency of lawyers to argue about things which, he felt, were less than real problems. I have to observe, month in and month out, this persistent attempt, on the part of the party to which Senator McGowan belongs, to blacken the legal profession. It does not stop them from recruiting into their own ranks as many of the legal profession as they possibly can by giving them State work and State jobs——
This question does not arise on this amendment.
Typical of what I would expect from that pipsqueak.
This is the university professor.
These interruptions must cease.
I am willing to give way to Senator Ó Maoláin or the Minister if he wants to say something.
(Interruptions.)
All interruptions are disorderly and they must cease. References to the private businesses of Senators are out of order and should not be indulged in.
I am willing to give way if Senator Ó Maoláin or the Minister has anything to say about me or my private job.
What the hell are you talking about?
The Chair is not prepared to allow the Senator to give way. This is not the Committee Stage. The Senator will continue replying to this debate.
The Minister when he spoke—I am not speaking now of his insulting words a moment ago which may be on the record of the House; I will not bother to ask him to withdraw them—a while ago he said he felt I had some animus against him. I have not got any animus against the Minister as a man, nor have I any reason to. I am opposed to the Government of which he is a member, for reasons which would not be relevant here, and I am opposed to his behaviour as Minister, and that of his Department, in some contexts.
There are other contexts in which I sympathise with him. For example, I think he gets more criticism than he deserves, as does his Department, in connection with the Forcible Entry Bill, much though I dislike it. The persistent habit of demonstrators of placing themselves in front of his Department, as though he and his official subordinates were responsible for all the wrongs in the country, is unfair to him and his Department. At the same time I have to draw a balance. When I remember that his Department had promised a law reform programme in 1962——
The Senator may not make such observations under this Bill nor under this amendment. I ask the Senator to confine himself to the amendment which is a limited one.
The Minister has met my points under these amendments in an intemperate and ill-mannered way. It seems to me that the only kind of intervention from this side of the House which is tolerated on the other side is one of harmless congratulation of Ministers for bringing in Bills. We are not here to do that sort of thing. Whether the Minister believes me or not, there are other things I would rather be doing than working my way through this Bill in an attempt to get decent legislation for this country and, ultimately, in an attempt to replace the present Government. That is by no means the first love of my life. I am doing it out of a sense of public duty and I make the allowance that other Members of this House are doing it for that reason as well.
I dislike being told, when I make a forcible criticism of a Bill and when that criticism is not answered, that I am acting out of animus towards the Minister. I think the Minister is in some respects not a good Minister. I hope he does not mind my saying that and I hope he can take that kind of remark without undue offence. If I were in his boots, I can imagine what would be said to me if I brought in a Bill like this. I can imagine what Senator Ó Maoláin's view would be if he were sitting on this side of the House, or, if I were in the Dáil as a Minister, what Deputy O'Malley would say about it.
I do not see why, just because my feelings on this matter are strong and I do not hide them, I should be described in the way I have been described from the far side of the House. It sickens me to realise that there is only one posture tolerable to the Fianna Fáil Government, and that is one of congratulation and handing bouquets to one another. I am not here for that purpose and I am not going to play along with that kind of thing at all. There are Senators here, most of them on the far side of the House, who regularly congratulate Ministers no matter what they are doing. Whether the Bill is good or bad they are thanking them and falling over themselves to lick their boots——
The question does not arise and is irrelevant. I would ask the Senator to return to the amendment.
I do not want to raise the temperature of this debate any higher than it is already but, from an intervention the Minister made while Senator Dooge was speaking, it seemed to me that he had not yet bothered to read the second of these two amendments. Maybe I am doing him an injustice in saying that, but he intervened while Senator Dooge was speaking to say that the amendment referred only to explosives. The second of these amendments, which the Minister ought by now to have read or to which his attention ought to have been drawn, governs or attempts to deal with all deadly things, not only the things governed by the Principal Act but also what I tried to describe as prohibited substances and also incendiary devices.
I realise that a difficulty has been created by the way in which I phrased the first section but I do not accept the Minister's facetious reference to the housewife's shopping basket. There is a limit on the number of things in the world of chemistry which will produce an explosion. It would be no bother for the Minister and his Department to produce a list of these innocuous substances to which the application of the proposed amendment would be unreasonable. I am perfectly certain that his Department, with the assistance of the State chemists and the Garda, could turn out a very workable list in a couple of days. The Minister spoke of an enormous number of common household substances. That is nonsense. Certainly, there are some household substances, such as sugar, weedkiller, some detergents and methylated spirits, which might have to be excepted.
What about soap?
A day's work would compile such a list. I do not accept, for a moment, that the Minister is entitled to brush this aside as being impossible. There are many Acts in this country which contain lengthy Schedules of a technical kind. That is what officials are there for and they do the job extremely well. No one is asking the Minister to do it himself. His officials are well able to do it and if they are not able to do it the Minister should get people who will be able to compile a list of dangerous substances and substances that are safe. He has introduced in the Dáil— although it is not yet printed—a Dangerous Substances Bill.
I did not introduce it. It comes under a different Department.
It was on the Order Paper of the Dáil as getting its First Reading. I am not criticising the Minister because the Bill is not yet printed and I do not wish to make a point about it. All I am saying is that I cannot say what is in that Bill because it is not printed yet. It would make my job here easier if I could see what is contained in it.
The Minister went on to make fun of this first amendment by saying that he disliked the job, if I understood him rightly, of having to take things out of a blanket provision. In fact there are plenty of precedents in our legislation of such a kind. One that springs to my mind immediately—I am sure I could add to the list if I had an hour to look things up in—is the situation under the Local Government (Planning and Development) Act, 1963, which entitles the Minister for Local Government to exempt from the application of that Act whatever he likes; and we know how that was used in the past.
There are other examples which could be cited and which I could give the House if I had time and an opportunity. The Minister is misleading the House if he pretends there is anything new or strange about a Minister being given a blanket authority and allowed to chip away the area of that blanket authority by excepting or exempting regulations. There is nothing new about that, and well the Minister knows it.
It seemed to me that the Minister did not understand what Senator Robinson was saying, and that he completely misunderstood it. I do not fault him necessarily for that. It is hard to catch something the first time. Whether Senator Robinson's intervention helps the Minister's case or not, the case which Senator Robinson mentions is a modern English case which again, as the Minister well knows, is not binding on the most remote district court in Ireland as an authority.
Furthermore, even if it were in some respect binding by reason of a doctrine of precedent which does not exist in this country to that extent, it would be within the powers of this Oireachtas to change the law. The fact that murder is an extra-territorial crime in most, if not all, civilised countries has got absolutely nothing to do with this at all. I have cited the Offences Against the Persons Act, 1861, as an example of a statutory provision which perfectly clearly makes it an offence to organise the commission of a crime in or outside our own territories. There is nothing in the Constitution, and so far as I know there is nothing in international law either, which inhibits or prevents this Oireachtas from extending that category of offence. That is what I want this House to do.
I have spoken long enough about this. I know there are other things on the Order Paper that need attention and I will not hold the House up any longer. I want to repeat, if I can do so for the last time, solemnly and soberly, that the Minister has simply not dealt with the question whether so far as our firearms code is concerned it ought to be permissible for someone in this jurisdiction to organise the importation of deadly things into the North of Ireland. He has just avoided that question, in part by abuse and in part by facetiousness. He has not persuaded me, although when I first opened this Bill I had no preconceived ideas about it, that the Government are really serious in their intent, which I accept at bottom to be sincere, of diminishing violence in Northern Ireland, or at least making a gesture to show the people up there that we mean what we say about wanting peace in the North.
That is the only importance this Bill has. The rest of it is all rubbish. It might as well not be there; it will have no effect; it will be a dead letter. The only thing in it worth having is section 4 which says to the people in the North: "We think your life and limb is just as valuable as our life and limb." It says that and I think section 4 is an admirable section. What I complain about is that the principle behind section 4 is not being further extended. I have not got a satisfactory answer from the Government as to why that is not being done.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Bill received for final consideration and passed.