Prohibition of Forcible Entry and Occupation Bill, 1970: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. O'Malley)

This is a Bill to deal with a specific problem which has arisen in this country in recent years and which takes the form of the forcible occupation of other people's property and forcible interference with the legitimate rights of owners and sometimes of the general public as well. We have witnessed the arbitrary seizure of buildings occupied by Government Departments, with the consequent disruption of public business, and the taking over of commercial offices belonging to overseas airlines and shipping companies, to the considerable inconvenience of tourists and other travellers. We have seen organised and forcible squatting in local authority housing in Dublin on a scale which has seriously interfered with the system of priorities that is operated by the local authorities to ensure the fairest possible allocation of available housing amongst those in need of accommodation. We have also had the unauthorised boarding and occupation of a commercial airliner at Shannon Airport, not to mention a large number of the intimidatory exercises that have come to be known as "fish-ins."

Most of the acts of squatting and illegal occupation at which the Bill is aimed are part of a deliberate campaign promoted and organised by quasi-political groups which are no more than front organisations for subversive elements in our society. Part of the tactics of these groups, acting in many cases under the guise of protectors of the weak and the under-privileged, is to encourage and urge particular sections of the community to adopt unlawful means to achieve particular economic or social objectives which the groups regard as desirable. Organised efforts have been made to deprive certain property owners or occupiers of their rights to their property or to prevent them from exercising those rights in a manner which the law allows.

All these activities have one thing in common; they reflect a direct and openly-expressed challenge to ownership of private property by organisations whose leaders have sought to arrogate to themselves the right to decide when private ownership must give way to their own idea of greater need. The people concerned are not prepared to abide by the democratic processes which exist for resolving grievances and changing the existing order of things, but, instead, they deliberately resort to force and intimidation to achieve their aims. The methods adopted by these people are of such a nature that individual property owners who are the targets of their attacks are powerless to defend themselves or their possessions and are afraid to invoke the processes of the civil law which in any event are of little use in the circumstances. In this situation the duty of the State is quite clear; it must step in and protect the individual in the interests of the community as a whole and preserve public order and public peace. That, in a nutshell, is what this Bill is all about, and any suggestions that it reflects a preoccupation with the rights of private property or that it has any other motive such as interfering with the freedom of the Press is simply and blatantly untrue.

The Bill provides for the creating of three specific offences in relation to land and vehicles, namely, forcible entry, forcible occupation, and encouraging or advocating the commission of either of these offences. The relevant sections are sections 2, 3 and 4 respectively. "Land," as defined in section 1, includes caravans and mobile homes. "Vehicle" means an aircraft not in flight, a train, an omnibus, or a boat, ship or other vessel. The terms "forcibly" and "forcible" are also defined —they include unspoken threats of force caused by the weight of numbers but, on the other hand, do not cover peaceful picketing or the like.

Subsection (4) of section 1 makes it clear that nothing in the Bill will affect acts done in contemplation or furtherance of a trade dispute. This particular provision was introduced into the Bill by way of an amendment tabled by me in Dáil Éireann to put beyond doubt that the Bill was not in any way aimed at legitimate trade union activities.

The Bill is drafted on the basis that the sanction of the criminal law ought not to be invoked as a substitute for civil action against trespass or to protect property rights or remedy civil wrongs where—and I must emphasise the qualification—the circumstances are such that there is no threat to the community and no general public interest involved. The Bill will not, therefore, apply to incidents that arise in the course of private disputes between persons having different estates or interests in the same land, for example, between landlord and tenant or between mortgagor and mortgagee.

The fact that it will not be an offence under this Bill for a person to forcibly enter his own property was represented in the other House as conferring a right on landlords to act in this way and as strengthening the hands of landlords against tenants. This, of course, is complete and utter nonsense. The fact that the offences created by the Bill will only affect persons who have no right, good, bad or indifferent, to the property that is forcibly entered or occupied does not mean that persons not affected by the Bill are being given a right of entry or occupation which they do not have at the present time. On the contrary, subsection (5) of section 1 specifically provides that nothing in the proposed Act is to be regarded as conferring on any person any right to entry or occupation of land which did not previously exist. The position at the end of the day, therefore, will be that landlords and tenants will stand in exactly the same relationship to each other as they do at this moment and nothing in this Bill will favour either party at the expense of the other. The point to bear in mind is that society today is not faced with a situation in which landlords forcibly, with the use of violence and intimidation and in an organised way, enter their own property and eject the tenants. Hence, there is simply no problem to be dealt with in this sphere and consequently no need to create a new criminal offence affecting landlord and tenant relationships. Since the Bill is not designed to deal with such innocent activities as, for example, where a homeless person enters and sleeps in a disused shed or an itinerant family seeks temporary shelter in an abandoned farmhouse, an exception is made in section 2 for a person who, having forcibly entered land or a vehicle, does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave by the owner or by a uniformed garda, does so with reasonable speed and in a peaceful manner.

In section 3, the action of locking or barring doors, windows, etc., and the action of erecting physical obstructions to entry, will constitute forcible occupation where, but only where, such actions are calculated to prevent or obstruct the entry of any person lawfully entitled to enter.

A feature that is common to both section 2 and section 3 of the Bill is that any person who acts in pursuance of a bona fide claim of right is not guilty of an offence. When the Bill was before the Dáil I accepted Opposition amendments to that effect, not because these were necessary from a legal point of view but because spelling the matter out in the Bill served to allay the fears of Deputies. At common law, a bona fide claim of right would automatically be a defence to a charge involving an offence under these sections.

Section 4 of the Bill has been a source of considerable misrepresentation. Subsection (1) of section 4 makes it an offence for a person to encourage or advocate the commission of an offence of forcible entry or forcible occupation. The encouragement need not be directed at specific persons or categories of persons but, by analogy with the common law offence of incitement, may be general. Contrary to what has been alleged by some Members of the Oireachtas and outside commentators, there is nothing novel or unusual about the offence created by the subsection. In point of fact, the offence has exact parallels in, and will operate alongside, the common law offences of incitement, aiding and abetting and counselling or procuring, which automatically arise when, as in sections 2 and 3 of this Bill, new indictable offences are created. The parliamentary draftsman is satisfied that the words "encourages or advocates" are more apt in modern times to express the concepts embodied in the common law offences of counselling or procuring and incitement. I agree with that view and, quite clearly, so also do legislators and jurists in other jurisdictions.

This is the provision which attracted most criticism from the Opposition in Dáil Éireann——

An Cathaoirleach

May I interrupt the Minister for a moment? The Minister will appreciate that it is not in order to refer in this House to proceedings in the other House. While it is perfectly in order to refer to arguments that were raised in the course of a debate in the other House, references to the proceedings in the other House are, as a general rule, not in order.

Professor Kelly

It is not the first reference, a Chathaoirleach. The Minister made one earlier on.

An Cathaoirleach

Would the Senator allow the Minister to reply to my point of order?

Mr. O'Malley

In any event, these efforts to criticise subsection (1) of section 4, I am sorry to say, were most successful with the Press, who allowed themselves to be used as pawns in a political game indulged in by Opposition parties. It was at first represented by these parties that subsection (1) was creating a completely new and outrageous offence the like of which had never been known to the law before and which had been thought up and introduced for sinister purposes by the Government and the Fianna Fáil Party. Eventually, even the main proponents of this theory realised how untenable it was and they then changed their tack to the extent that they accepted, firstly, that inciting another person to commit a crime is an offence under existing law, that the Press is subject to that law in the same way as anybody else and that the freedom of the Press is thereby curtailed at the moment—as, of course, it is in many other ways, as, for example, by the law of libel.

The artificial and completely unreal controversy that had grown up around the subsection then resolved itself into an argument as to whether the words "encourages or advocates" mean the same thing as "incite." I was able to demonstrate to the Dáil that in using the word "encourages" the parliamentary draftsman is in the best of company, because this is a word which is used in a similar context in, for example, the penal code of the State of New York, which was enacted as recently as the 1950's, and also in the Model Penal Code promulgated by the American Law Institute—a body which is composed of judges of the United States Federal Supreme Court, judges of the State Supreme Courts, professors of law in the universities and legal writers of repute throughout America. I was also able to point out that the word "encourages" is used in section 4 of the Offences against the Person Act, 1861, in rendering a statutory definition of incitement in relation to the crime of murder. The use of the word in that context has never to my knowledge been held by the courts to be vague or uncertain nor has it given rise to any excessive curtailment of the freedom of the Press in commenting on social injustices or social evils of any kind. As far as I am aware, no reputable national newspaper has ever been prosecuted for incitement to murder, even though many editorials have been written over the years in newspapers in these islands which, if the theories of the Labour and Fine Gael Parties were to be believed, would have amounted to encouraging the crime of murder.

The fact of the matter is, of course, that the phrase "encourages or advocates" means exactly the same thing as "incites" and lawyer Members of the Oireachtas must know that this is so.

In order to commit an offence of "encouraging or advocating" under section 4 (1) of the Bill, a person would first of all have to have the requisite mens rea or guilty state of mind. In other words, the offence cannot be committed innocently or by mistake. Secondly, a person must set out to encourage or advocate another person to commit an offence under section 2 or section 3 of the Bill. Merely to criticise housing conditions would not amount to an offence under section 4, and it is dishonest and misleading to suggest that it would. This is not just my personal interpretation of the effect of the section but is based on the best available legal advice and is an interpretation that I am satisfied will stand up to examination by any competent legal authority.

Subsections (2) and (3) of section 4 of the Bill as introduced were at first the main targets of the critics, but, when I amended these provisions in such a way as to allay whatever genuine fears may have been entertained by those concerned, they quickly switched their attack to the opening subsection, which I have just discussed. Subsection (2) of the section in the Bill as now before this House provides that where a statement in contravention of subsection (1) is made by or on behalf of a group of persons, every person who is a member of the group, and who consented to the making of the statement, shall be guilty of an offence under that subsection. It will be noted that consent to the making of the statement is an essential ingredient in what lawyers would call the actus reus of the offence. This alone makes nonsense of the allegation that the subsection introduces what has been described as guilt by association. It did not do so either in the original version or in the amended version now contained in the Bill.

In a prosecution of a person as a member of a group for an offence in relation to a statement made by or on behalf of the group, it will by virtue of subsection (3) of section 4 be open to the court and to the court alone, on the basis of the facts of the case as a whole, to regard proof of the defendant's membership of the group and of the making of a statement by or on behalf of the group as proof of consent on the defendant's part, in the absence of any adequate explanation by him. I invite the particular attention of Senators to the fact that it will be open to the court to act in this way only if it thinks it reasonable to do so. In other words, the court will not allow consent to be deduced in that way if it considers that there would thereby be any element of unfairness to the defendant.

As I pointed out to the Dáil, what is involved here is not, as alleged, a shifting of the onus of proof of guilt but a transferring at the discretion of the court, in respect of one aspect of the case, of the evidential burden or burden of introducing evidence. This evidential burden is generally—though not necessarily always—on the prosecution and it is clearly distinguished by all the leading authorities from the burden of proof or onus of proof.

Because of the inherent nature of the problem with which this Bill is designed to deal, prosecutions under sections 2 or 3 will in the overwhelming majority of cases be against persons who have no colour of right to the property forcibly entered or occupied. Consequently it would, in the ordinary way, be unreasonable to the point of absurdity to require the prosecution to go through the tedious and often costly process of proving ownership that is not in fact being challenged. Members of this House who have had personal experience of the purchase or sale of a piece of land or of a dwelling house will appreciate that proof of title can be a long drawn-out process. Accordingly, section 5 of the Bill provides that, unless the defendant shows to the satisfaction of the court that he has a bona fide claim to ownership of the property, it will not be necessary for the prosecution to prove ownership. In practice the effect of this section will be that the prosecution will not have to introduce evidence of ownership unless the defendant raises and puts in issue a real question of title. It is to be observed that the onus placed on the defendant is minimal in that he is not required to prove ownership but merely to introduce a bona fide claim of title for which there is some colour or show of reason. Once he fulfils that obligation, the onus is firmly on the prosecution to prove the ownership of the property as part of its case against him.

Most of the other details of the Bill are matters which would be more appropriate for discussion on Committee Stage and I propose, therefore, to refer only very briefly to them on this occasion. The penalties for offences are provided in section 7. Increased penalties are prescribed for second and subsequent offences tried summarily but all the offences can be triable either summarily or on indictment. Because the district court has no basic jurisdiction in regard to title to land, it is necessary to provide that jurisdiction in summary proceedings will not be ousted by reason solely of a question of title to land being brought into issue. The obverse of the coin is that decisions of the district court in prosecutions under this Bill will not affect questions of title. Both these matters are dealt with in section 8.

Because the offences created by the Bill are indictable ones, it will be possible for the Garda Síochána to apply for warrants of arrest where necessary. However, there may be exceptional cases where an offence of forcible occupation has taken place and the circumstances are such that serious damage to, say, a building, or serious interference with the lawful rights of the owner in relation thereto, or serious inconvenience to the public wishing to transact business in the building is being or will be caused as a result of the continuance of the offence and the only way of preventing the damage or inconvenience or of minimising it would be for the Garda to arrest those concerned forthwith. Accordingly, section 9 of the Bill provides for the vesting in the Garda Síochána of a power of arrest without warrant in what will be an emergency situation. This arises only in relation to an offence under section 3 and Senators will notice that all the four conditions set out in section 9 for the exercise of the power of arrest must be satisfied—they are not alternatives.

I do not propose to detain the House any longer except to assure Members that there is nothing sinister about this Bill and that it is not in any way designed, as some commentators would have us believe, to limit freedom of expression or freedom of protest. All that the Bill is aimed at is the arbitrary seizure of other people's property by means of force and intimidation in a manner which poses a threat to the community and to the general public interest. I feel sure the House will appreciate that where the sanctions of the criminal law have to be imposed, as in a Bill of this kind, they are a guarantee of, and not a restriction on, legitimate individual rights and freedoms. Every freedom carries a corresponding responsibility and where freedom is exercised without responsibility it degenerates into licence. The Government and the Oireachtas have the clear duty to protect the rights and freedoms of all citizens—not just those of the noisy minority in our midst who, while professing to champion the cause of the weak and the under-privileged, seek, in fact, to trample on the rights of the silent majority and to deny them the very freedom whose cause they profess to espouse. This is not by any manner of means to condemn anybody for voicing legitimate grievances and for keeping on doing so. But when people resort to force and violence to achieve their ends the situation takes on a different complexion. In a democratic regime such as we have in this country, where laws and policies can be altered in a peaceful and orderly way, there can be no justification for the use of force and violence. I know that the Bill is one which has the support of the vast majority of the community and I look forward confidently to its receiving the approval of this House.

Professor Kelly

I have only been in this House about two years and that makes my experience of Parliament much more limited than that of many other Members here but I do not recall a Minister ever before coming to this House and giving the House in his opening speech, which was prepared, printed and distributed to Members of the House while he was delivering it, abuse of the kind that the Minister has seen fit to deliver. The Minister's reputation is certainly not that of an unintelligent man. He would have been certainly well able to write a speech for himself, unlike some of his colleagues, but I assume that he has many calls on his time and that the sort of speech, which he makes in introducing a Bill to either House, is one prepared for him by one of his officials. I want to protest, if that is so in this case, in the strongest manner about an official paid out of public money putting into the Minister's mouth expressions of that kind about the Opposition.

Mr. O'Malley

That is my speech and I take responsibility for every word. The activities of Senator Kelly in trying to attack civil servants is deplorable and typical of him.

(Interruptions.)

Acting Chairman (Mr. McDonald)

Order. Senator Kelly.

Mr. McGlinchey

Mr. Lindsay would have written a few speeches in his day.

Acting Chairman

Order, gentlemen, please. Order.

Professor Kelly

I am quite willing to let them speak until they are tired.

Acting Chairman

Every Member will have an opportunity of contributing to the Bill. Would Senator Kelly proceed without interruption, please?

Professor Kelly

I do not resent their idiotic bleating. It was an ill-tempered speech and bodes ill for the mood of this debate.

(Interruptions.)

Acting Chairman

Senator Kelly without interruption.

Professor Kelly

The principal reason why I see a basic objection to this Bill is that it lacks any distinction between the kind of activity which the Minister described eloquently in his speech as being hostile to all order and society, and activity which does not deserve that kind of description. A good deal of what the Minister has said, apart from the abuse which he seems incapable or avoiding, could just as easily have come from the mouth of a Minister provided by this party if we were in Government. I do not dissent from the point of view that organised subversive groups must not, and cannot be allowed to trample on people's rights, on the individual rights of citizens or on the rights of commercial undertakings in order to demonstrate a political point of view.

When an organisation feels that it can draw attention to its objectives best by walking into an office or into a private house, sitting there, squatting there, doing damage, perhaps, interfering with the lawful activities of people who individually are in no way to blame for the conditions about which these people are complaining, then the law should step in. I am prepared to go this far, and probably a bit further, with the Government in taking the view—as I presume they do—that we have witnessed in the past few years the growth of a new kind of political activity here. Up to date in this country political activity has taken the form, if lawful, of making speeches, or propagating one's views by word of mouth, or by printing them in a paper or pamphlet. That is something which has a long tradition here and has never been substantially interfered with. Unlawful political activity has taken all kinds of forms but there is a sort of political activity growing up in the past few years which I know the Minister has in mind and which he described here today in which people try to draw attention to their objectives by trampling on the rights of others.

I am 100 per cent in agreement with the point of view that that cannot be allowed, and it would not be allowed in any country in the world; and I think it not inappropriate that we should have a law in this country to apply the sanctions of the criminal law, though with due regard to leniency and charity where these are necessary, to a new form of activity which takes the form of trampling on private rights in order to express a political point of view. If this Bill were clearly and unambiguously directed against people of that kind, I would have only marginal quarrels with it, only the kind of quarrels which might be appropriate on Committee Stage.

The Bill, as it stands, draws no distinction, that I can see, between that kind of activity which, I agree, must be regarded as unlawful and proper to be penalised, on the one hand, and, on the other, the activity of a homeless family, which in desperation, take over a vacant premises and barricade themselves in. On a previous occasion when the Minister was here we had a most unsatisfactory debate about the Firearms Bill. On that occasion I told the House that I thought the Minister and his Department—little though I admire them—had been subjected to criticism in regard to the Forcible Entry Bill which was exaggerated. I make the Minister a present of a repetition of that view. Criticism directed against this Bill has in some quarters, and to some extent, been exaggerated. An attempt was being made in some quarters to represent the Bill as directed purely against homeless people and purely against people who ought to be the recipients of State charity rather than the victims of the State's criminal law. I regard that argument as being disingenuous and dishonest; it certainly was not put up in those terms by any one in my party in the other House. We all know that that is only a part of the squatting problem, but little and insignificant though it may be, compared with what I might call political demonstrative squatting, it ought not to be the object of the criminal law. I believe that firmly.

One of the reasons why I oppose this Bill is that the measure draws no satisfactory distinction between the one and the other. It may be that drafting difficulties would be formidable; it may be that the Minister's Department would be in difficulties, if they were asked to draft a Bill which would clearly distinguish between political demonstrative squatting and what I might call "necessity" squatting—the sort of squatting which some families are driven to because they cannot get a roof over their heads. If that distinction had been drawn by the Minister, or if the Minister will subsequently accept amendments in this regard, then one of the principal objections which I have to this Bill would disappear. However, that distinction has not been drawn, and I regard this as a sign of the Minister's inflexibility and of the inflexibility of the Government which, presumably, is behind him.

I do not at all share the view that the Minister personally is the evil genius behind this Bill. I know perfectly well that the Government must be behind him. If the Bill were clearly and unambiguously directed against this political squatting, against the squatting in which ordinary people's rights are trampled on, so as to make room for the demonstration of a political point of view which the people who put it up cannot demonstrate in any other way, or do not want to demonstrate in any other way, we on this side of the House would have little fault to find with it.

The terms in which the Bill is drawn are so general, and the Minister has been so inflexible in refusing to adapt the Bill, so as to leave out what I might call this "squatting by necessity," that there is no alternative left to us but to oppose it. To me that is the Bill's main fault. The Minister, apart from the abuse for which he himself takes responsibility, is correct in much of what he says. He is correct in saying that subversive groups here in recent years have used this technique of violent trespass in order to put forward their points of view.

This may be a remark which would not be proper, and, perhaps, which even the Minister would regard as beyond his rights, to make in an introductory speech: the fact that little squatting has taken place during the past two or three months seems to me to be significant. The subversive groups the Minister has in mind are regarding it as the best of their play to stay quiet while the Bill is passing through both Houses, in case public sympathy would suddenly get behind them instead of behind the Minister.

If the Bill were directed only against them much of what I find objectionable in it would disappear. It may be that the Minister's temperament or his instructions from the Government will not allow him to accept amendments, or, perhaps, some temperamental qualities on this side of the House will dispose him against accepting them. However, I hope that he will open his mind to the possibility that this Bill might be refined in such a way as to leave out of its application the activity of a desperate family. I am not at all trying to represent that as being the main nub of the problem. I know that it is not, and I know that it has been represented dishonestly outside this House as being the main problem. It is part of the problem, and if the Minister were ready to adapt this Bill so as to leave compassionate cases of that kind outside the application of the Bill, it would lose one of its main faults.

It would be inhuman and cruel to go to the rounds of passing a criminal statute in order to apply penal sanctions to a squatting family who could not otherwise find a roof over their heads. If that were the object of the Bill, I should be against it 100 per cent. I know that it is not the object of the Bill, and I accept the Government's view, as partly expressed here today, that it is mainly directed against subversive organisations who use this technique to force their views on the public. If the Minister will refine the Bill a bit further so as to make that absolutely clear and leave outside its application the kind of compassionate case which I have in mind, then one of its main weaknesses will disappear. I say this because we cannot simply rely on the Minister's speech; we are making law and we cannot rely on his good intentions or those of the Government. We do not know who will come after us and we do not know what kind of people will be administering the law.

I should like to refer to another weakness in the Bill which I hope to say more about on Committee Stage; namely, that in many respects, for legal reasons, it is unnecessary. In the course of his speech this morning, the Minister said that the processes of civil law were of little use in the circumstances. I quote:

... The methods adopted by these people are of such a nature that individual property owners who are the targets of their attacks are powerless to defend themselves or their possessions and are afraid to invoke the processes of the civil law which in any event are of little use in the circumstances...

Why are they of little use? Can it be because they, like so much else of our law, have lain rusting and collecting dust and are in need of amendment, which they are not getting? So far as the compassionate cases are concerned, such as a family squatting in an empty house, an accelerated proceeding in the civil law would be more than enough to deal with it, without bringing down the penalties of the criminal law on them.

So far as the subversive groups are concerned who use squatting and trampling on other people's rights in order to demonstrate a point of view, I cannot see that a statutory amendment of the law of unlawful assembly would not have gone nearly the whole distance to meet the problem which the Minister purports to be dealing with. A Bill of this kind does not, therefore, seem to be necessary. It is unnecessary because it could have been replaced by an extension of the ordinary civil law so far as it applies to the squatting family. It is also unnecessary because its object could have been more simply achieved by an extension of the law of unlawful assembly so far as it concerns the activities of subversive organisations.

The real truth, which is not mentioned often enough and which the public do not realise, is that the Bill is, in effect, an amendment of the Offences against the State Act. That must be clearly said and clearly understood. For technical reasons, which I shall explain, it would have been reasonable from the drafting point of view had it carried that title. The Minister said this morning in reference to the phrase "advocate and encourage", that there were antecedents for it. He mentioned them collectively but he mentioned them in the Dáil individually:

Contrary to what has been alleged by some Members of the Oireachtas and outside commentators there is nothing novel or unusual about the offence created by the subsection. In point of fact, the offence has exact parallels in, and will operate alongside, the common law offences of incitement, aiding and abetting and counselling or procuring,

He goes on to say:

The Parliamentary draftsman is satisfied that the words "encourages or advocates" are more apt in modern times to express the concepts embodied in the common law offences of counselling or procuring and incitement. I agree with that view and, quite clearly, so also do legislators and jurists in other jurisdictions.

Later on he said:

I was able to demonstrate to the Dáil that in using the word "encourages" the Parliamentary draftsman is in the best of company...

I agree with that view. He said "I am quite clear that so also do legislators and jurists in other jurisdictions". Later on he said "I was able to demonstrate in the Dáil that in using the word ‘encourages' the Parliamentary draftsman is in the best of company, because this is a word which is used in a similar context in, for example, the penal code in the State of New York, enacted as recently as the 1950's and also in the Model Penal Code promulgated by the American Law Institute —a body which is composed of judges of the United States Federal Supreme Court——"

Mr. Crinion

On a point of order, is the Senator allowed to speak with his back to the Chair?

Professor Kelly

I am trying to get better light on the Minister's speech, but if the Senator would prefer me to reproduce the Minister from memory I will do it. —"Judges of the State Supreme Courts, professors of law in the universities and legal writers of repute throughout America" this is the good company which the Minister tells the House these words enjoy. But what he did not tell the House was that these words have been in our own statute law for the last 32 years and the phrase "advocates and encourages" occurs in no less than ten places in the Offences Against the State Act of 1939. He did not tell the House that, nor did he tell the Dáil that. This Bill, could for reasons which I will come to in a moment, be much more reasonably described as and looked at as an amendment of the Offences Against the State Act. The reason why it was not so called I suspect to be the tactical reason that the Minister and his Department were anxious to avoid the odium which would attach to them if they were to introduce in this year another Offences Against the State Act. Let me say, in case any Senators are under a misunderstanding in regard to the Offences Against the State Act, that, contrary to a widespread belief, it is not emergency legislation. It is not the same as the Emergency Powers Act. It was passed in 1939 months before the war began, and was introduced in the Dáil by Deputy Ruttledge in February, 1939, because of a compaign which the IRA had begun in England in 1938. It has nothing to do with the Second World War, it is a standing piece of legislation and, except for the parts which deal with the special criminal courts and internment, most of the Offences Against the State Act is in force today just as much as, say, the Road Traffic Act. That Act which is in force here, and has been for 32 years, contains numerous instances of advocating and encouraging and I think it disingenuous of the Minister not to say openly that the nearest good company that this phrase enjoys, the one nearest to us in time and in place, is in our own Offences Against the State Act passed 32 years ago. Why does he have to go off to New York to find a precedent, or to the Continent, when a precedent exists in our own legislation for the last 32 years?

Section 6 of the Offences Against the State Act makes it an offence to advocate or encourage usurpation of functions of Government. Section 7 makes it an offence to advocate or encourage the obstruction of Government. Section 8 makes it an offence to advocate or encourage obstruction of the President. Section 9 makes it an offence to encourage interference with military or other employees of the State and also makes it an offence to advocate or encourage the doing of this.

Section 18 makes it the mark of an unlawful organisation to encourage or advocate the commission of treason, or any activity of a treaonable nature, or to advocate or encourage the procuring by force of the alteration of the Constitution, or to advocate or encourage the commission of any criminal offence, or to advocate or encourage the attainment of any, particular object, lawful or unlawful by violent, criminal or other unlawful means. I am not so sure that the whole object of this Bill could not have been well met by an application of the Offences Against the State Act as it already stands. That is an opinion given off the cuff; I do not challenge the Minister to deny it; I do not insist on it.

The same section, No. 18, makes it a further mark of an unlawful organisation to encourage or advocate the nonpayment of moneys payable to the Central Fund; and there is later in the Act yet another instance of advocating and encouraging. This is the headline which the Department of Justice set itself in drawing up this Bill, and let the Minister admit it. It is not the only evidence I have got. It is the only Irish Act I could find in which this phrase occurs. There may be other ones but this is the one which is most conspicuous. In no less than ten places this phrase occurs.

The Minister has not told us about it here, and did not mention it in the Dáil—if I am doing him an injustice I will give way to him if he wishes to interrupt me now—although the Department over which he presides must know that this phrase occurs in the Offences Against the State Act no less than ten times. They must know that and they must know perfectly well that this Bill was drafted by a man who had the Offences Against the State Act open on the desk before him, because not only does this phrase "advocate and encourage", which is so unusual in our legislation otherwise, occur, but there are other things in this Bill which are found in former times in the Offences Against the State Act in a similar kind of context. I know the Minister denied that it was group responsibility and perhaps I am short-circuiting his arguments by calling it that, I do not wish to contradict him by the use of a phrase but, just for the sake of brevity, let me call it group liability. The group liability mentioned in section 4, and particularly as mentioned in section 4 of the Bill as already introduced to the Dáil—it has since been changed by the Minister's amendment—was obviously drafted by someone who had before him section 21 (3) of the Offences Against the State Act. So far as concerns the reversing of the burden of proof—again for the sake of brevity I call it that although I have not forgotten what the Minister said about it a moment ago—the reversal of the ordinary onus of proof is something also found in the Offences Against the State Act. The material in section 5 of this Bill is not all that different from material which will be found in section 15 (5) of the Offences Against the State Act.

This Bill must be looked at by this House and by the people as an extension of the Offences Against the State Act, and it would have been more honest, even though tactically difficult perhaps, for the Government to present it formally as such. It would have been more honest for the Minister to say that some of the concepts, in particular this concept of advocating and encouraging which has been the subject of much debate, have been copied word for word from that Act passed 32 years ago.

Perhaps the Minister or the Senators on the other side of the House assume that I think it a terrible thing to copy the Offences Against the State Act. I do not. I think every society in the world laying claim to civilisation and trying to maintain civilisation has to have up its sleeve law of the kind represented by the Offences Against the State Act, because there are people in every society who are not amenable to the ordinary processes of law, who do not believe in the ballot box, who do not believe in putting their point of view before the people in the ordinary way and standing for election. I have no objection to this country having a statute—and I am not by any means defending all of the Offences Against the State Act, far from it—but I do not mind us having legislation intended to control the activity of subversive people.

Mrs. Robinson

Do we have to stay in the state of emergency?

Professor Kelly

Senator Robinson knows quite well that emergency legislation and the emergency resolution are a quite different matter. The resolution was passed two or three months after this Act came into force. I tend to agree with Senator Robinson on this, but I do not see the relevance of it at the moment.

Mr. Kerry

I am trying to follow the Senator's references and I understood him to refer to section 15 (3) of the Offences Against the State Act, 1939, and in my view either he has made a mistake or he is talking about something completely different.

Professor Kelly

I will try and clear up what I said. I said subsection (5) of section 15 of the Offences Against the State Act, which says that:

in any prosecution under this section which concerns unauthorised military exercises the burden of proof that any act was authorised under this section shall lie on the person prosecuted.

I do not think that the existence of legislation of this kind is anything to make apologies for because I know that this country has a long history of people who will not accept any government, any law, or any form of democratic procedure. I am not going to assign blame for that, although we have all got our own ideas on the subject. We have that long tradition. It is a bad tradition and it has to be dealt with by legislation. My complaint about the sections from which this section in the Bill before us has been copied is that they, in common with many other sections of the Offences Against the State Act, have never been properly applied.

One of the reasons why I regard this Bill, not as sinister as some people have made out but a waste of the time of both Houses of the Oireachtas, is because I know perfectly well that it is not going to be any use to us. It is not going to be properly enforced and it is not going to be enforced necessarily against the right people. The similar sections which were used as a headline for this Bill in the Offences Against the State Act have not been properly enforced either. In this country today there are more bullies than I ever remember before swaggering round the streets and firing off statements, if not guns, every day of the week, but always taking care never to stand for any kind of an election. One of the reasons why these bullies exist in such numbers in this State is because the Government, whether because of an inner political necessity inside their own party or otherwise, have not done their duty to keep them down.

I know that the Chair will not permit me to go too far afield in reciting the various sections of the Offences Against the State Act which have not been applied but, believe me, they are there. There are sections of the Offences Against the State Act which might as well never have been passed, so little use has been made of them. There is a section, for example, which allows the police to close buildings used by an unlawful organisation. When was the last such building closed? Perhaps the Minister would tell us that. When did his Department last instruct the police to close a building under that section? When was somebody last prosecuted here for the possession of a seditious document? When was somebody last prosecuted for unlawful military evolutions?—I am not speaking about the possession of arms. These are questions to which I should like to hear the answers.

The Minister presides over a Department which has not done its job in this regard and I, therefore, regard this particular Bill as a piece of window-dressing. It is unfair in its conception, for the reason I have explained, and I believe firmly that it will be futile in its operation. The Minister's Department should turn their eyes to enforcing the law they have got, to recruiting a police force sufficient to enforce it, and one moreover which will not be as disaffected as the present one, a section of which has gone out of its way to retain the advice of a man from whom, I can only assume, they are getting advice in order to annoy the Minister who presides over them. These are the things to which the Department should be addressing its attention, taking the dust off the Acts and the law which they have already got in their pockets and in their hands, having a look at them to see if the law that is already there will not suffice for the legitimate purposes expressly behind this Bill instead of adding yet another penal statute to the statute book, a penal statute which is too wide in its conception and which, I believe, will in any case be futile.

In regard to section 4 of the Bill which has been the main target of criticism I may, perhaps, be taking a line marginally different from that of other members of my own party. I do not regard the Fianna Fáil Party as a parcel of tyrants. I do not think their aim is to destroy liberty. I will acknowledge that all through my adult life I have never felt that there was any difficulty about speaking one's mind about the Government. I have never noticed anybody being inhibited in saying what he felt about the Government and I have never noticed that the Government went out of their way to apply the sanctions of the criminal law or to distort the criminal law in order to achieve the application of sanctions to people who criticised them. I do not like giving what appears to be a certificate of approval to a Government I dislike but, in fairness, I have to say that I do not regard them as tyrannical or oppressive. I do not think that their object is to stifle freedom of speech. I am aware that in saying this I differ from many of the people who have already criticised this Bill, but no purpose is served by producing exaggerated criticisms of legislation. I do not think that the intention behind the Minister's behaviour, much as I deplore it, is to beat the people into the ground. I honestly do not believe that. I do not think the Government are tyrants or bullies. I think they are simply poor "eejits". That is the long and the short of it. They are incompetent. They have not done their job. They have not used the law which is there. They allow themselves to get into situations from which there is no retreat except by telling lies. They allow themselves to be dictated to by their permanent officials who are doing their job as well and as carefully as they can, but who are not in a position of responsibility to the electorate. We had a Minister here three weeks ago piloting the Higher Education Bill through this House who, polite, responsible and well-mannered as he was, was clearly being run like a clockwork mouse by the officials behind him.

An Cathaoirleach

References to officials are to be deplored. The Minister, as the Senator knows, is responsible for legislation that he brings into this House and it is better to keep to the tradition that the Minister and not his officials are criticised.

Professor Kelly

I understand that that tradition is observed. I do not mean to quarrel with the Chair, but that tradition originated at a time when there was such a thing as Ministers who knew their job and who commanded their Departments. Those days seem to me to have gone, together with many of the conventions of anonymity which used to surround the Civil Service. I know I would be going too far afield and I would be called to order if I produced examples of that, but everyone in this House knows that the old-style civil servant who was anonymous, faceless, patriotic and incorruptible remains patriotic and incorruptible but is no longer anonymous or faceless. The reason why they have emerged from behind the anonymity is because they have political bosses who do not know their jobs, and who are not able to get their subordinates to do their jobs properly. This is not to be interpreted as an attack on an official in the way that the Minister thought I was doing a few minutes ago. If I were a civil servant and found my Department presided over by a Minister who knew nothing about his job, or was not able to do it, naturally I would realise that the reins were in my own hands and I would do my best for the country from my own desk. That is what is happening here. There are civil servants who are taking the reins into their own hands because there is nothing else for them to do. The people in charge of them have not got the time, between backslapping their constituents, seeing deputations and going around the country trying to fix this and fix that, opening and closing festivals, out every night of the week with black ties on them as well as white; these people have not time to learn their jobs and naturally the officials who stand behind them have to say: "I must do the job then as best I can and I must redouble the briefs and instructions for this man who is supposed to be in charge of my Department." The result of that is that we get legislation here which has been invented by a man who, no matter how good his intentions, how patriotic and incorruptible he is, and I acknowledge that unreservedly and gratefully, is not responsible to the people or to either House of the Oireachtas.

That is basically the reason why we got the performance here three weeks ago of the Minister for Education in which not one of our amendments was accepted. This is supposed to be the Seanad, a place in which you would imagine we would get a constructive change where it is necessary in a Bill such as the Higher Education Authority Bill. Not one line of that Bill was any different when it left this House from what it was when it came in. The reason for that is the reason which is also behind the kind of behaviour reflected in the presentation of the Prohibition of Forcible Entry and Occupation Bill here today and over the last few months in the Dáil. It is an unnecessary Bill but the political chiefs in the Department and in the Government have not got the gumption to see it and have not got the time to think about it. That is what I complain of; their attitude to criticism is simply to stonewall, to dig their heels in and to shout. That is the reason why government, and I do not mean the present Government because I do not say the personnel are any less attached to their country than we are, that is the reason why government, with a small "g", is coming into disrepute here; the impression is created for the public that the political bosses of the various Departments, the political heads, the Ministers, are simply not in command of the boats of which they are nominally the captains and their only reaction, therefore, to criticism can be to dig their heels in; they have not got what it takes to understand criticism, deal with it and accept what is good in it.

The Government, which is pushing this Bill through both Houses, has come in for criticism which is in many respects unfair and exaggerated. I do not think the Government intends to be tyrannous, apart from certainly some very undesirable things—undesirable, but, in the context of a generation's history, relatively trivial — such as Ministers making telephone calls to Telefís Éireann and having programmes stopped. I do not regard these things as evidence of a tyrannous disposition. People who squeal and complain excessively about these things, although they must be complained about, are really ungrateful for the relatively liberal benefits which this society enjoys. Whatever our political differences, a relatively liberal atmosphere and a relative respect for democratic procedures on both sides is certainly represented in this House.

I know that statement is going to conflict with the attitude sincerely taken up by the Press. I do not think that the Minister or the Government intends by section 4 to muzzle the Press. I do not think that is the Minister's intention and I do not think it is the Taoiseach's intention. But that is not the point. The point is that the section as it stands makes it possible for some future government to do so. I do not know what government is going to be here in a years time, or six months' time; it may possibly be a Fianna Fáil Government. I do not know who the Taoiseach or the Minister for Justice will be. I am not going to make an act of faith in the Minister's statement that this section is innocuous, because it clearly is not innocuous. I accept that the Government we have got at the moment, much though they dislike criticism, much though they try to make it rebound on those who utter it by abusiveness, as in the Minister's case, or by personal remarks of the kind which we got here yesterday when the people on this side of the House were called "brazen faced rubbernecks, nauseating hypocrites and filthy blackmailers"—these were the reactions we got from the "Soliders of Destiny" here yesterday for doing what we take to be our job——

The only way these people can be removed is by taking them to the High Court, which is a long and expensive process. A constituent of mine in Meath had to sell a hotel in Dublin. When she tried to give possession of the property she found several families squatting there and it took some time before she could get possession. The squatters were objecting to free sale, for which our ancestors fought very hard. This is flouting everything we have fought for over the years. I cannot see how the Opposition can be so blind; they have never mentioned the squatting in people's houses. We have heard of people going away on holidays and coming back to find their houses occupied by squatters.

I wonder how the members of the Opposition would like it if they went away—and I know they are all anxious to get away for their holidays—and came back and found some of these gentlemen in occupation of their houses? I know what their feelings would be. They should consider those feelings when opposing this Bill. If the Bill were not introduced where would we be? It would be a question of a small minority ruining the housing system in Dublin city and throughout the country.

It has been said that there is already sufficient legislation to cover the matters contained in this Bill. A number of the laws are very old and, when tested in the courts, they might prove inadequate because the meaning of words has changed. We in the Fianna Fáil Party have been consolidating Acts over the years and the Department of Justice have been trying to bring the law up to date. Anyone who has been a Member of the Oireachtas over the past ten years will have noticed this process, a process which has been carried out by almost every Department.

In dealing with section 4 the Minister pointed out that this is an accepted pattern in America and in other countries. If we are introducing something new we like to have a look around to see what has been done in other countries and obtain their views, particularly on the English language and its acceptance by them.

I think there is need for section 4 because there could be a newspaper that would be advocating the breaking of the law. The Press are governed by the ordinary laws of a country and there is nothing sinister in that. Section 4 merely spells out the law more clearly and was designed to meet—particularly with regard to newspapers that may have gone underground—the problem of newspapers and pamphlets being circulated to incite and encourage people to enter and occupy houses unlawfully.

This is going on at the present time. Such people are given to understand that if they unlawfully enter a house nothing can be done about the matter. The editors of such newspapers and pamphlets are just as guilty as the people who unlawfully occupy such houses. In many cases of unlawful entry the people concerned are the type of people who command quite a lot of public sympathy. It may be a case of a young married couple with a young family and the wife may be expecting an addition to the family and in the eyes of the public it might be considered wrong to eject such a family. However, the people who urge such couples to occupy those houses are much more guilty because they are using those unfortunate people to achieve their own ends.

The Minister has guaranteed and assured us of the freedom of the Press. The freedom of the Press is accepted and there is no question whatsoever of any interference with their existing rights. They will continue to have such rights because this legislation will not restrict them in any way.

Section 5 deals with proof of ownership. Anybody here who has had occasion to visit the Land Registry knows how long it takes to get proof of change of ownership at the present time. Much time can elapse before an owner of a house can get such proof of ownership, particularly if the house is unlawfully occupied. If this section were not included in the Bill we would be encouraging squatting in unoccupied houses. We would be defeating the whole object of the Bill if we had not got section 5 written into it.

Most of the opposition to this Bill has stemmed from political expediency. The Opposition felt that the Press were not happy about the Bill and they, quite naturally, felt that in opposing it they would obtain favourable comment for themselves in the newspapers and bring the Government into disrepute. However, I should like to say to the Opposition that they should be consistent in their opposition to this Bill. If we look back through our laws we can clearly see that the tenant always has the law on his side. This probably arose because of the evictions carried out during the British occupation. The dice is loaded in favour of the tenant throughout our legislation.

Nowadays, with our better living standards and with the greater Government financial provision for housing loans, the greater proportion of our people now own their own houses. If we go back 30 or 40 years we find that most young people when they married were forced to rent a flat or a house or, alternatively, go to live with their relatives. Most young married people nowadays save hard for a deposit and obtain a loan to buy a house of their own. Are we going to deny such people the right of ownership of their own homes by not having a law which will protect their ownership?

It is expressly stated in our Constitution that the right of private ownership of property is recognised. It also states that the family is the main unit of the community. There is a small section of our community in Dublin city—they are a subversive section who work under various association names but they all meet at the one headquarters—who think they can flout the law of private ownership. Many young married couples who have bought their own houses are afraid to go away on holidays because on their return they may find that their houses will be occupied by squatters. I wonder what members of the Opposition would say if they went away on holidays and on their return found that their houses had been unlawfully occupied? How long would it take them to get repossession of their houses? It would take a very long time unless we have legislation to protect them against such squatting.

I feel that the Minister and the Government are doing their duty in protecting private house owners against squatters. The Government are very often criticised in the wrong. One must remember, in any debate, that the Minister may open the proceedings but then he will not come back in until the debate is over. If there is going to be a long debate here it will take time and the wrong impression may be given in the newspapers until the end of the debate when the Minister has an opportunity to defend himself. It is the function of the Senators who are backing the Minister in this House to try to counteract in some small way adverse comments that are often levelled at the Minister during the debate.

Professor Kelly

That is a poor tribute to the Senator's own front bench.

Mr. Crinion

I am referring to everybody in that respect. They all have the right to do it. We all have the equal right to speak whenever we are called. I feel it is the just right of the Government to introduce a Bill of this nature to protect those people who are entitled to houses but who cannot occupy them because of squatters. If something is going wrong and it is unjust, naturally the Minister concerned, in whatever Department it may be, will introduce a Bill or corrective legislation in the Oireachtas. I have seen plenty of this in every Department over the years. Sometimes they have to wait until a Bill is coming in and then put in all the corrective provisions.

About 12 years ago there was agitation about the barbary bush but the Minister brought in legislation to declare it a noxious weed. The Department took the opportunity to include 20 other items in case those weeds ever came into this country or were ever dangerous. There were ones in other countries. It was better to have the legislation there in case they came.

Over the years corrective legislation has always been brought in. That is the function of a democratic Parliament. It must protect the individual in this country. If it neglected its function by not bringing in a Bill like this it would certainly be a case of neglecting to protect the individual in this country from the bullying tactics, where the law of the jungle would prevail. This has always been the function of the Government and the Oireachtas. The democratic process is one of the things we are proud of in this country. We have had it since we got our independence more than 50 years ago. Each one of us cherishes the good system we have here in Ireland.

If we look at where there were dictatorships in Europe in the past 40 years, there was little respect for private ownership or for a person's life. There is opposition to this Bill which is a corrective measure. People who examined the law found there was a weakness in it in regard to people retaining possession of their houses. The existing law was being flouted and in any case it is too costly to bring cases to the High Court and get evictions. Few private householders can afford to bring an individual to the High Court. The Members of this House who are lawyers will know how much that would cost. They have a right to look to the Government to provide them with a means to regain possession of what is theirs.

I feel the Bill is badly needed at the present time. The Minister and the Government have had the courage to bring it forward and are doing their duty as Ministers and members of the Government.

Mrs. Robinson

I oppose this Bill very strongly for both legal and social reasons. I do so not for any political motives and not as a member of any political party but as an Independent Member of this House. This is one of the rare times I have opposed legislation. I consider it the function of an Independent Senator to comment on the legislation that comes in, usually Government legislation, and try to have a constructive approach to it and to try to bring in amendments to it. I find myself, therefore, reluctantly in a position where I must oppose the legislation and I do so not for any hysterical reasons and not for any exaggerated reasons but for legal and social reasons which I will attempt to elaborate.

Taking first of all the legal reasons, they can be summed up as two-fold. In so far as there is a problem there is sufficient existing law. Taking even the Forcible Entry Bill itself, which is a relatively short Bill, most of it already exists n our law. There is very little of it new. It is the new piece, what is contained in section 4, that is particularly unwelcome in this context. The Minister in his opening statement to this debate has enumerated various existing criminal offences as the reason for bringing in this piece of legislation. It is for this reason that the Bill, in so far as he is giving any justification for bringing it in, is not necessary and, therefore, can only be both superfluous and with errors in the drafting of it. The Minister stated in his opening speech:

We have seen organised and forcible squatting in local authority housing in Dublin on a scale which has seriously interfered with the system of priorities that is operated by the local authorities to ensure the fairest possible allocation of available housing amongst those in need of accommodation.

Mrs. Robinson

It is at column 80. My reason for mentioning this is to show that there is existing legislation to deal with the problem. The type of squatting that is most unfair and most obnoxious in the local authority housing system, is the jumping of the points system and the taking preference over others who are waiting in the queue for houses. In relation to the other reasons which the Minister gives in the Second Reading, he says:

We have also had the unauthorised boarding and occupation of a commercial airliner at Shannon Airport, not to mention a large number of the intimidatory exercises that have come to be known as fish-ins...

He also says:

... the taking over of commercial offices belonging to overseas airlines and shipping companies, to the considerable inconvenience of tourists and other travellers.

Yet I think the Minister would agree with me that all of these factors are offences under existing law and the offenders can be prosecuted.

I shall refer to existing legislation, particularly existing statutes on forcible entry. It has been said that those statutes are rather ancient and that they might not work in our present modern context. However, later on I propose to show that not only can they work but, in Britain, a similar jurisdiction to ours, they are working. In that country there have been successful prosecutions in the last year, and even in the last month, for forcible entry and occupation and for conspiracy forcibly to enter and occupy by what the Minister would regard as quasi-political groups. In other words, the existing law, which is similar in both jurisdictions under courts which would regard the law in a similar way, is quite adequate. In Britain there has been no necessity for a Bill such as the Minister is proposing here. The Forcible Entry Act, 1381 provided as follows:

None from henceforth shall make any entry into any land and tenements, but in case where entry is given by the law; and in such case not with strong hand, or with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convicted he shall be punished by imprisonment...

It is provided under that Act that it is no defence to the person guilty of forcible entry that he was entitled to possession, or had a legal right of entry. However, this was one of the first Acts of Forcible Entry and it was found that there was a defect in it in that if a person who was not entitled to possession entered forcibly, he could remain in possession, enjoying the property and retaining it from the true owner until the latter had brought the proceedings necessary for its being brought to a successful conclusion. In order to overcome this difficulty, a second statute was passed and this is the Statute of Forcible Entry of 1391, which rendered those who entered forcibly and thereafter held by force—in other words, forcible occupation—liable to imprisonment as provided in the earlier Act. It also provided a summary remedy whereby one or more justices could, with the help of the sheriff eject such persons and cast them into jail to await trial.

There was a third statute, the Forcible Entry Act, 1429, which provided that the offence of forcible detainer—the equivalent of forcible occupation under this Bill—after peaceable entry should be subject to the same punishment as forcible entry itself, so as to make such forcible detainer an offence punishable by imprisonment. The Act extended the summary jurisdiction of the justices to a case of near forcible detainer, and provided that they should have power to restore possession to the person dispossessed, and also to hold an inquiry in a case where the offender had left the premises before their arrival. The Act even went so far as to provide for the punishment of recalcitrant sheriffs if they were not sufficiently anxious to pursue and carry out the provisions of that Act.

It might be stated that since the offences created under the Forcible Entry Acts in England are the subject of prosecutions and have been during the past year, that the authorities here have not been sufficiently active in prosecuting under the existing legislation and their negligence in failing to enforce the existing law has led them to bring in this new Forcible Entry Bill which I contend is not necessary.

As well as the statutes of forcible entry, we also have the Summary Jurisdiction Act, 1851, which made trespass on land a criminal offence. This could be used in relation to the fish-ins. The problem is that the Minister has given certain circumstances, which I for one would not condone, which I think are abuses of the rights of others, as the reason for bringing in this Bill, and what I have been trying to make clear is that there is already existing legislation which is quite adequate to deal with these matters. The real reason then for bringing in this Bill must be found in the next paragraph of the Minister's Second Reading speech where he says:

If this is the reason, because there is sufficient existing legislation of a criminal nature apart from this, then I must agree rather sadly with Senator Kelly who has argued very convincingly that this is in effect an amendment of the Offences Against the State Act, 1939, that it is not a squatting Bill but an attempt by the Minister in this way indirectly to extend the provisions of the Offences Against the State Act. If this is so, I would agree with Senator Kelly that this is not necessary. There is quite adequate legislation under the Offences Against the State Act to pursue those groups of people engaged in activities of a political nature.

It was said and has been written that the Forcible Entry Bill underwent such a long and tortuous debate in the Dáil that the Minister, although he accepted some amendments, would now be very reluctant to accept any amendments in the Seanad because it would necessitate going back to the Dáil. I quote the words of the Minister in the Second Reading speech in the Dáil on the 27th January. At column 82 he is reported:

Before I conclude I want to stress that I do not put forward this Bill as the last word in perfection. I put it forward as a reasonable and moderate attempt to meet a serious and recurring problem. Some may think it is not strong enough, others that it may go further than is necessary. I shall be glad to hear the views of the House and to consider any suggestions that may be made for its improvement.

I note sadly he has not included a similar opening to Senators and yet I feel that if it can be convincingly argued that this Bill is not necessary he might welcome either the option to withdraw it or to amend it in such a way as to alleviate the very real fears that it has caused among people that it will interfere with freedom of expression and that its implications are very serious for the country.

In relation to existing legislation, it is relevant at this stage to comment on the extent to which the problem of squatting and squatting on a large scale and in an organised way has been coped with in a similar jurisdiction to ours, in other words, in Britain, since this is an example of use of legislation which exists and which could be implemented in this jurisdiction. In this context I should like to refer to a recent English case of Regina v. Mountford which was heard by the Court of Appeal in May of this year and which illustrates the application of the Forcible Entry Act of 1429 which is also operable in this country.

In that case—and the pattern will strike Senators here as very similar to the type of problem, and nobody is denying there is a problem, which can exist here—Mountford and a group of others had peaceably occupied six empty houses owned by the Territorial Army and, while they were inside these houses which they peaceably occupied, they fortified and barricaded themselves into them and they resisted.

Business suspended at 1 p.m. and resumed at 2.30 p.m.

Mrs. Robinson

Before business was suspended I was describing the way in which a jurisdiction similar to ours, namely, Britain, has coped with what I would regard as a more extensive and certainly a very serious problem of squatting and organised squatting by large numbers of people. I had described the way in which there they had no hesitation in prosecuting under statutes which also exist in this jurisdiction, namely, the Forcible Entry Acts and I had come to discuss one case which is very relevant because it is the type of situation which we get here and which the Minister has told us he wants to deal with in this Bill. The case to which I was referring was Regina v. Mountford heard by the court of appeal in May of this year. This was a case of a prosecution under the Forcible Entry Act, 1429. Mountford and others had peaceably occupied six houses which had been left empty by the territorial army. They had barricaded themselves in and resisted an attempt to evict them. Mountford was charged on indictment with the offence of forcible detainer contrary to the Forcible Entry Act, 1429 and he was convicted. He appealed on the ground that there was no offence of forcible detainer at common law nor did the Forcible Entry Act, 1429 create such an offence triable on indictment. The court of appeal rejected his appeal and upheld the conviction. The court held that they were of opinion, looking at the old statutes, that the offence of forcible detainer, which is identical to forcible occupation under this Bill, was either created or affirmed by the Act of 1429 and was to be punishable by imprisonment in the same way as forcible entry under the Act of 1391 and by a procedure on indictment. Lord Justice Phillimore said in that case:

The Court thinks that both forcible entry and forcible detainer were probably offences at Common Law involving as they did breaches of the peace. It would be odd if it was an offence to break down a gate and take possession of a field but not an offence if one found the gate open and so entered and then barred and held it against the true owner. There is no substance in this appeal. Forcible detainer has been an offence triable on indictment for at least 500 years and accordingly and for these reasons the court has dismissed the appeal.

I would draw the Minister's attention to the existence of forcible detainer under our law also and as far as I could ascertain, although not all our cases are reported, to the absence of prosecution for this offence.

I should like to refer to, perhaps, an even more crucial English case in contrast to the Forcible Entry Bill which meets the type of problem that the Minister is trying to overcome in section 4 of the Bill which is the section I regard as most objectionable. This type of problem of an organised squatting was again proceeded against successfully very recently in England under the existing law which is similar to the law we have here. I refer to a case heard in July, 1970, R. v. Robinson and others where there was a conviction for conspiracy to contravene the Forcible Entry Act, 1429. The facts of the case were that four people were indicted together on a charge that during certain days in September, 1969 they conspired together and with other persons to contravene the Forcible Entry Act, 1429 by unlawfully entering the premises of a school in London and by preventing the board of the school and its agents from regaining possession of the property. The people involved had been squatters prior to that in a building at 144, Piccadilly. I am sure most Senators remember the particular squatting incident in London. When the police obtained possession and eventually got the squatters out of 144, Piccadilly they found documents and evidence that this attempt to take possession of the school was going to take place. When Robinson and his companions took possession of the school the board obtained a High Court order but when they tried to execute it they were barricaded. This was prevented but there was no physical resistance. Eventually they took possession of it and the question arose in the hearing of the case before the court of appeal as to the meaning of the use of force in these circumstances. The approach of Lord Justice Widgery in this case is worth quoting here. He said:

We would not be prepared to state as a simple and bare proposition of law that any barricading of the building which caused the true owner to use force in removing the barricades necessarily amounted to "the use of force" in retention.

So much would depend on the facts in each individual case, particularly on the degree of barricading, the time and effort which has been spent on it, and the effect of the barricades generally; because if one was not careful, a proposition stated in those words might reach the almost ridiculous conclusion that a tenant who merely turned the key in the lock and thus caused the landlord to break in, breaking down the doors, would himself be "using force" to retain property from the landlord.

I quote that extract because it shows the judicial concern in relation to the words "use of force" and "forcible entry". This is something which we will have to consider on Committee Stage and I certainly will have amendments in to the existing wording of the Prohibition of Forcible Entry and Occupation Bill on this aspect of forcible entry which is over-stated in the Bill as it exists at the moment. What I implied in referring to those two very recent cases in England is to show that if we enforce our law, then it is perfectly adequate to cope with the squatting problem because there is in numerical terms a far greater squatting problem in Britain.

The other side of the coin—and this is the second aspect of my legal objection to this Bill—is the fact that in England they have been constructive in their approach in that they have remedied their civil procedure. It must be remembered that what we are talking about here is reconciling property interests. We are talking about whether a person will be prosecuted for invasion of another person's property or whether this can, as it normally is, be adjusted in the civil procedure by giving a better civil remedy. It has struck me as very odd that, whereas in England in July, 1970, an effective civil remedy was given to persons whose property had been invaded in order to protect it more effectively and to give it more effective machinery, no mention has been made here, despite the long debate on the Forcible Entry Bill, despite the discussion of the problem, of improving our civil procedure. We seem to be determined that the only course would be through the criminal law rather than trying to adjust our civil procedure so that it is of very great importance to refer to what has happened in Britain and in July, 1970, a new rule was added to the rules of court there. I would submit that this is something which ought to be done here and if it was done with the existing criminal law and the improvement of the civil procedure, we do not need this Forcible Entry Bill. In July, 1970, a new order, Order 113, was added to improve the summary proceedings there. This order provides, first of all, that:

Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor the proceedings may be brought by originating summons in accordance with the provisions of this Order.

Secondly, it provides that:

The form will be the normal form of originating summons with the proviso that: Where the person taking possession is unable, after taking reasonable steps, to identify every person occupying the land for the purpose of making him a defendant, then the originating summons shall be on a special form and shall not require the person to be named.

As Senators will appreciate, this is one of the great problems in the civil procedure. Very often the number of persons squatting in a building cannot be identified and this is one of the defects of our procedure. It may be that each person has to be identified. The provision continues:

In relation to the service of the originating summons, if the individuals cannot be identified, then as well as serving the summons on the identified defendants (if any), the summons may be served by affixing a copy of it on the main door or any other conspicuous part of the premises, unless the court directs the service in some other manner.

The order does not provide a new remedy but rather a new procedure for the recovery of the possession of land which is in wrongful occupation by squatters. The machinery is designed specifically to overcome the procedural defects in the existing procedure by providing the procedure to be more speedy and this has been improved still further by limiting the time in which it can be brought, shortening the steps to obtain a final order for possession and allowing the order to lie against unnamed and unidentified persons. This rule of court has been the subject of litigation in England and the courts are concerned that, although it is a necessary improvement in the civil procedure for the recovery of property, it should not be abused.

A case which illustrates this is that in relation to 9 Orpen Road, Stoke Newington, in February of this year, before the Chancery division. Here the applicant had applied for a summons under this new order, Order 113, where he had contracted to sell his house and before he had done so it had been occupied by squatters. He went along to the house and it appeared on the evidence that he had tried to ascertain the identity and he had been told the name of at least one of the squatters inside and he had forgotten it. Therefore, he had decided to use this new procedure Order 113. His attempt to do so failed because Viscount Pennycuick said in his judgement:

It seems to me impossible to say on the evidence that the applicant had taken reasonable steps to identify every person occupying the land. According to his second affidavit he actually spoke to the occupant and deposes honestly enough that the occupant mentioned his name but he forgot it. I really think that it is impossible to support that as evidence of reasonable steps to identify the occupant.... It seems to me that once one finds as a fact, as I do, that this applicant did not take reasonable steps to identify every person occupying the land, then the consequence necessarily follows that the proceedings are defective from the start and the summons must be dismissed. I am, of course, not expressing any view at all on the substance of the matter.

In that case then because the procedure had been brought in where it would be impossible to identify the squatters it was not the appropriate procedure. This is the appropriate procedure when there is squatting in large numbers by unidentified people. It is a very quick procedure and it gives possession to the owner and is, as I say, the appropriate procedure because the matter is a matter of conflict over property.

The last case in this context which I want to refer to in the English jurisdiction, again illustrating what the full implementation of the procedure there can bring, is that of the London Borough of Southwark v. William and Others.

In this case the defendants were two homeless families who were unable to obtain housing accommodation. They sought help from their local squatters association. This would be one of the quasi-political groups which the Minister is very concerned about and they made an orderly entry into some empty houses owned by a local borough council. We now have the problem of occupation of local authority housing with the help of the squatters association, precisely the type of problem——

Mr. Keery

There is no comparison. These are empty houses making way for new development or road widening.

Mrs. Robinson

The problem is capable of any number of variations. May I deal with this particular aspect? It certainly came up and other Senators mentioned it. The council sought an order for immediate possession under the new procedure and it was contended by the defendant, that is, by the families which had been squatting in this case that their action was justified on the grounds that the council were in breach of their duty under the National Assistance Act to provide temporary accommodation for homeless families and that they went in under the doctrine of necessity. They had the necessity to get homes and this is what they were pleading. The court of appeal refused to accept the full application of the doctrine of necessity in this case. It held that although the law recognised the doctrine of necessity it was confined within very narrow limits, for example, urgent and transient situations of great and imminent danger to life in which the law permitted some encroachment on private property. Homelessness did not constitute the sort of emergency in which the doctrine could be evoked. Lord Denning said in this case:

If homelessness were once admitted as a defence to trespass, no one's homes could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need or would invent a need so as to gain entry. Each man would say his need was greater than the next man's. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good.

Applying these principles, it seems to me in the circumstances that these squatters are not such as to afford any justification or excuse in law for their entry into these houses. We can sympathise with the plight in which they find themselves. We can recognise the orderly way in which they made their entry. But we can go no further. They must make their appeal for help to others, not to us.

A successful application of the new rule brought by the borough council to get these squatters out even with the great sympathy of the judges, and the sympathy of judges is very relevant in this context, particularly the statement by Lord Justice Davies who agreeing with Lord Denning, referred to the practice in another jurisdiction—this is, the Borough of Southwark—and he referred to the practice in the Borough of Lewisham in relation to squatters' associations, where there is an informal agreement that where there are empty houses which are not immediately to be re-occupied these can be occupied by squatters on the undertaking by the squatters' association that as soon as they are wanted they will be released. In other words, they will get out. It is very much a gentleman's agreement because it requires bona fides on either side and if it ever broke down this informal arrangement obviously could not be continued.

What is very striking in this case is that a judge of the court of appeal in England would refer to the informal practice of a borough in England in relation to the squatting problem because it is not an easy matter. It is a problem of great human tragedy. I refer to what Lord Justice Davies, who concurred with the judgement of Lord Denning, said in relation to this. He said:

In the adjoining Borough of Lewisham, the squatters' association has come to an amicable arrangement with the local authority; they have contrived a working scheme which obviously needs to be carefully controlled, but which does appear to be relieving (if only to a limited extent) the dreadful plight of a certain number of homeless families. I go outside my judicial function I know but I nevertheless do express the hope that the door is not closed finally, and that some consideration will be given in the Borough of Southwark to see whether something resembling the amicable Lewisham arrangement may be achieved there also.

My point in mentioning that is that this is the right approach to the problem. It certainly is not an easy problem to resolve and a certain discretion to the local authorities might be very desirable in these circumstances.

An Cathaoirleach

The Senator is quoting at length from reports of law cases. The Chair considers that it would be better if the actual law report were quoted in each case.

Mrs. Robinson

I shall attempt to do that. I shall give it to the reporters. The purpose in quoting at some length from the English practice is to show that it is possible under the existing law both to cope with the problem and to cope with it humanely. There is sufficient criminal legislation—I have attempted to show that—under the Forcible Entry Act, and, far more important still in my view, there has been the improvement of the civil procedure. This is the area where it is so markedly lacking here and it is very hard to understand when we are talking about this problem of squatting why we have not attempted to improve the machinery. My only conclusion from looking at what a full implementation of our existing law would mean is that, except for the section relating to the advocating and encouraging of forcible entry or occupation, this Bill is not at all necessary. We have all the necessary criminal protection and we could have all the necessary civil protection if we cared to modify our rules of court in a simpler way as has happened in Britain.

Before I go on to the dangers of section 4 I repeat again that even the problem of organised squatting associations, or, as the Minister called them "shadowy figures" or "quasi-political groups" could be dealt with. I would point out that these can be prosecuted under the existing law by a conspiracy under the Forcible Entry Acts and there is no necessity for what I regard as the very vague and very dangerous language in section 4.

I turn now to consideration of this section which has been both in the other House and extensively in the country regarded as the most dangerous aspect of this Bill. I particularly regret the possibility that section 4 may become law because I regard it as a novel extension of our existing concepts of law. The section has been slightly amended in its passage through the Dáil so that now, although a person may be found guilty as a member of a group only if he consented in the making of a statement on behalf of a group, there is the possibility that he may expressly deny this. However, the essence of the offence still remains that the member of such a group could be found guilty unless he took active steps to dissociate himself or to plead ignorance of the statement made on behalf of the group. This is a very novel and a very dangerous extension of the idea of a person having a guilty mind, having a mens rea.

It is, and has always been, one of the fundamental precepts of our criminal law that a person ought to know, or ought to be able to know, what the law is and particularly whether he is committing a criminal offence. It is one of the maxims of the law that ignorantia juris nemini excusat—ignorance of the law is no excuse—and the obvious and logical corollary to this is that a person must be able to ascertain in good faith whether he would be committing a criminal offence or not. It is on this basis that I would have some doubts about the constitutionality of this provision and also I would find it, even if marginally constitutional, highly undesirable to have a situation where a person would not know whether as a member of that group he would be committing a criminal offence, unless he expressly stated that the particular statement was uttered either without his consent or without his knowledge.

The argument as to the constitutionality of this provision is following on various other provisions of the Constitution. The first provision to which I wish to refer is Article 40, Section 3, 1º, of the Constitution which states:

The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

This is not a passive obligation; it is an active obligation. The wording is active "so far as possible to defend and vindicate the personal rights of the citizens." One of the rights guaranteed under Article 40, section 6, subsection (1) is:

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

The first of them is:

The right of the citizens to express freely their convictions and opinions.

Then there is the qualification on this which anybody who debated the setting up of the "7 Days" Tribunal will be familiar with—the qualification in relation to freedom of expression by news media such as radio, Press and so on and that qualification is that they "shall not be used to undermine public order or morality or the authority of the State."

Subject to these limited qualifications, the Constitution guarantees the fundamental personal rights of liberty and freedom of expression. The personal right, I would submit, both to liberty and to freedom of expression includes the right to know whether one is at risk for criminal prosecution. I say this with more authority because it is clearly emphasised by the courts now, particularly by Mr. Justice Kenny in the case: Ryan v. the Attorney General, 1965 Irish Reports, page 294. This was the fluoridation case where he clearly stated that the personal rights under the Constitution are not confined to the rights set out. They are not confined to the rights of private property, to the rights of personal liberty, or to the actual rights specifically set out, but they include other rights such as, as in the fluoridation case, the right to bodily integrity.

It would be quite arguable in this context that the right to know whether you are going to be guilty of a criminal offence, the right to know, without it being too vague, whether you are liable to prosecution, would be included—the right to know whether you are at risk of a prosecution unless you dissociate yourself from a particular group. I refer to the wording of the Forcible Entry Bill that the word "group" is not defined. We do not even have this sense of definiteness in the group.

For that reason I think that the wording of the Bill as it stands would hardly meet the necessity of the State to protect and vindicate the rights of the citizen, one of these rights being the right to know whether he is at risk of a criminal prosecution unless he himself dissociates himself from a statement made by a group of which he might be a member on the grounds that the word "group" has not been defined. In his Second Reading speech the Minister referred to the law in the United States—I cannot find the exact reference at the moment—but he referred to the fact that the words "advocating and encouraging" have been used in the penal codes of the United States occasionally. I would like to refer the Minister to certain interpretations by the United States courts of the words "advocating and encouraging". It is quite clear that in the United States the concept of "advocating and encouraging" is not regarded as a very sound concept and that it is subject to the criticism of vagueness.

In a very early case in this context— the case of Schenck v. US, 1919, 249 United States Reports—Mr. Justice Holmes laid down the test in relation to offences of advocating criminal conduct. Those were the words he used, “advocating criminal conduct”. The offence being viewed here was the publishing of a manifesto denouncing conscription. It was at the time of the first world war, a manifesto had been published denouncing conscription and Schenck was indicted for advocating criminal conduct. I am quoting Mr. Justice Holmes. He said:

The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This statement by Mr. Justice Holmes is known as the clear and present danger test. It is a test that has been used in other contexts in the United States' constitutional law precisely to test the vagueness of the statute. If the activity and the terminology are too vague, because there is not a clear and present danger that the particular crime will either be committed or caused, then the offence will not lie.

It seems to me that this "clear and present danger" test is, by no means, implicit in section 4. There is no suggestion, on the wording of "advocating and encouraging" under section 4 and being part of a group from which a statement emanates "advocating and encouraging", that this encouragement should be either effective or even persuasive. There is no question of whether anybody is listening to this "advocating or encouraging". The prosecution does not have to show that anyone listens, or that anyone read the article—if it is an article—or that anyone heard the broadcast—if it is a broadcast—or that anyone heard the street meeting—if it is a street meeting. I think, on the lines of the approach of the American courts, that they would be unlikely to condone such vague terminology.

In a more recent American case—Yates v. US, 1957, 354 United States Reports—the supreme court quashed a conviction of 14 people on a charge of conspiracy, and I quote:

conspiracy to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence....

contrary to the Smith Act, 1940. The conspiracy in this case was a conviction for a conspiracy to "advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence". I am reading that again because I want to emphasise just how very serious the charge was in this case. It was probably the most serious charge the Government came up against. It was a conspiracy to overthrow that Government. Yet the conviction was quashed. One of the grounds for quashing the conviction was that the lower court failed to distinguish between, and, again, I quote:

advocacy by forcible overthrow as an abstract doctrine and advocacy of action to that end.

The supreme court held that passive advocacy could never be sufficient.

It is passive advocacy that is set out in section 4. There is no necessity for a clear and present danger. There is no necessity for proof that it did successfully encourage people to forcibly enter or occupy a building. Therefore, it is passive advocacy. Even in a case of the overthrow of the United States Government the conviction was quashed because there was not the element of active successful advocacy. It is on this point—and I shall return to this on Committee Stage—that I differ very strongly from the Minister when he equates advocacy and encouraging with incitement. I think they are different altogether. "Incitement" is a much more precise and much more legal term than "encouraging or advocating".

It is also reproduced in the Incorporated Law Society of Ireland Gazette of February, 1971, volume 64, No. 8, page 212. In concluding on this, John Temple Lang talks about the rights of conflict.

Constitutional law and law generally has to deal with reconciliation of rights which may or do conflict. Modern politics have to deal with protests against injustice (the Government can hardly say that people have no right to homes if they can be provided for them) which increase in force as the strength of inertia and vested interests become apparent. The new Bill does not reconcile rights, but protects some and ignores others. It would restrict the right of effective protest against injustices and destruction which milder protests have proved ineffective to prevent. It is an undesirable extension of the philosophy of repressive "law and order" rather than social justice, and is unpleasantly reminiscent of the Criminal Justice Bill. It is unnecessary, because the existing law already provides adequate remedies.

That is the statement made in July, 1970, by a lawyer before there was any bandwagon about the Forcible Entry Bill and before there were any protests about it. The observation of a person trained in law that it was neither necessary nor socially desirable should be noted.

One of the reasons why I do not believe this Bill to be socially desirable is that, apart from the fact that there seems to be sufficient existing legislation, it is very sad that a Bill of this nature should be placed very high on the legislative programme while we need so much other reforming legislation. We need more housing legislation; we need more consumer protection legislation. It is ironic that in Britain they have brought in about five Consumer Protection Bills, a Trade Descriptions Bill and a Misrepresentation Bill. We have not brought in any Bill of this nature. Yet, high on our list and consuming about three months of our time is this inconsequential and not relevant Bill on forcible entry whose purpose, if it has any purpose at all, is not clear on the face of it because the Bill is not necessary.

Tomás Ó Maoláin

You have a "bibful" of this Bill now.

Professor Kelly

The other Bills will be copied in ten or 15 years when the Department gets round to it. Do not worry about it.

Tomás Ó Maoláin

Long after Senator Kelly has left the public scene, I hope.

Mrs. Robinson

The real problem to which this Bill, at least on the face of it, is related is the fact that there is a housing problem in Ireland, as there is in many other countries. I am not saying our problem is necessarily that much worse than that of other countries but it is being approached in a negative way in that the protection is being given to speculators whose houses lie empty and are taken over by the homeless before they can either buy up more property and then sell it all together or before they can realise on their property.

I should like to acknowledge the right to property as it exists in the Constitution, the necessity to protect private property and, as I say, on the legal aspects I was talking about this factor that private property ought to be protected; that if the criminal law was fully enforced it would be protected, and I have positively asked that the civil procedure be improved to protect property. I do not want to be misquoted as saying that I do not recognise the necessity for the protection of private property, but I do think that we have over-emphasised this aspect of the problem and not sufficiently emphasised what I regard as an even more fundamental right in the Constitution, that is, the provision in Article 41 relating to the family. Article 41 states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

That is a positive affirmation of the right of the family to protection. In many areas the State does not discharge its duty and one obvious area where it is not discharged and which is relevant to the Bill we have before us at the moment is the housing in Griffith Barracks, the separation of husbands and wives. That is not discharging the constitutional obligation. Furthermore, I would submit that the State is now liable, in the position of the people of Ireland, to have action brought against it by anybody who is housed in the conditions of Griffith Barracks which break up rather than keep a family together, which do not respect the family life and which do not respect the sanctity of the home. Such action is possible under the recent decision of the Supreme Court, where an action in tort will lie against the people of Ireland in the case of failure to carry out the constitutional duties set out in Article 41. This would be a much more positive contribution to solving the housing situation and eliminating the conflict of property interests here. Article 41 continues:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

I would submit that any widow who is not able to bring up and feed her children on her allowance——

An Cathaoirleach

Would the Senator relate these remarks rather more closely to the Bill?

Mrs. Robinson

I think they are relevant to the context in which I am saying this. I am trying to show the underlying social issues which exist. We have here a piece of legislation which is attempting to meet a problem. There is a constitutional obligation on the Government to provide homes, to provide that we do not have squatters in the country. That constitutional duty is not being discharged.

An Cathaoirleach

Passing references to the provision of homes may be in order, but the Chair is not very willing to agree that the obtaining of work by widows in order to maintain their families could reasonably come under this Bill.

Mrs. Robinson

I accept your ruling. It is merely to show that there is a duty not to oblige mothers—and widows, of course, are mothers—to go out to work. This is a positive aspect of the Constitution which is determining our social policy. With your guidance I will move on from that point.

I refer to the part of the Constitution which has no teeth in itself but which was enacted as guidance to this House and to the Lower House, as guidance to the Oireachtas. I refer to the principles of social policy under Article 45, under that Article, the application of the principles of social policy set forth in the Article shall not be cognizable in a court of law but shall be for the guidance of the Oireachtas. They must be for our guidance presumably in relation to a Bill dealing with the problem of forcible entry and occupation of property, because we have to ask ourselves why this is happening. Section 1 of Article 45 states:

The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.

Section 2 states:

The State shall, in particular, direct its policy towards securing

(i) That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs.

(ii) That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good.

My submission, in quoting this, is that if this were so and if real efforts were made to allow the people in this country to have a proper means of livelihood, and if there was a more equitable distribution of property, we would not have the precise problem that the Minister is attempting to meet. Therefore, to highlight this whole problem I think I can best borrow the statement of another person in relation to this Bill at a meeting some months ago in the Mansion House when various people, not representative of any one particular group but of a wide section of the community, stood on a platform to protest against this Bill. One of the people who took part in it— to my knowledge it was the first time he had taken part in what might be called a political meeting in the sense that it was about a political Bill—was Fr. Enda McDonagh of Maynooth. On that occasion he said:

This is not my vision of society that we bring in a Bill which will give a very strong weapon to the speculators against the homeless.

I would echo him on this. That is my social reason for opposing this Bill. It is not my vision of society. I think we could do a great deal more constructive work in making Ireland a better place to live in.

Mr. E. Ryan

Having regard to the way in which the discussion on this Bill has ranged in this House and elsewhere, it is necessary in condering it, to ask ourselves a few basic questions. This is the Prohibition of Forcible Entry and Occupation Bill. I think we have to ask ourselves, first of all, are we in favour or are we not in favour of forcible entry or forcible occupation, because no matter how the argument may be distorted and no matter how many irrelevancies may be introduced into this discussion, basically that is what the Bill is about and basically that is what we have got to make up our minds about: are we in favour of forcible entry or forcible occupation of property? There seem to be a number of people in the country and in the political parties who make no bones about the fact that they are in favour of forcible entry, that they do not believe in private property and consequently they are dead against this Bill because this Bill will interfere with their vision. For most of us I think it will be accepted that private property is something we believe in and, if that is so, we have got to get down again and again in the course of this discussion to saying where we stand on this issue: are we in favour of forcible entry or are we not. The more we think about that, the more we talk about that, the more we get back to that basic question, the more we can introduce an air of reality into the debate on this Bill. Do we accept furthermore the right of private property? There are some people who have discussed this Bill and who make no bones about the fact that they do not. One would be led to believe, from some of the arguments that have been used, that there was something in the Constitution giving a sacred right to people to enter property forcibly. Again, let us get back and see exactly what the Constitution says. Article 43 says:

The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.

The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice. The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

It is clear that there are three basic principles stated in this Article: first of all, that we have, according to the Constitution, the right to private, personal property; secondly, that the Constitution recognises that, in certain circumstances, the State may introduce laws which would delimit that right within certain limits; thirdly—and I think this is the relevant one in the discussion of this Bill—that it is only where that right is limited by law that there can be any departure from the principle of private, personal property. What we are trying to do in this Bill is to prevent people from interfering with the right to private property outside the law, to prevent people from defying the law, to prevent people from taking the law into their own hands. We should recognise that this is the background to this Bill: the right to personal property, the extent to which that right may be limited, and the fact that outside the laws made by the State there is no right for anybody, no matter what their intentions may be, no matter what their motives may be, no matter what their vision may be, to take the law into their own hands and forcibly to enter the property of another.

In the debate so far we have had an undue emphasis on the rights of entrance, on the suggestion that this Bill, in some way will affect the independence or the liberty of the people who attempt to enter property illegally. The right has been exaggerated to such an extent that one would almost find them referring to some Article in the Constitution which would appear to give them some special right of forcibly entering property.

It is essential to get this debate away from that topsy turvey situation, to get it back to reality, and to decide and eventually casting our vote on, whether or not we recognise these rights, whether or not we are for or against forcible entry. I can imagine the kind of debate we would have, the kind of criticism we would have, the kind of abuse that the Government would get, if they had been introducing a Bill to facilitate people in forcibly entering property. I can imagine the abuse and criticism that would be heaped on the head of the Government, if they introduced any Bill which facilitated forcible entry.

It is hard to believe, from the accusations that have been made, that in fact what the Government are doing is the exact opposite. It is hard to believe that the Government are doing no more than introducing a Bill to protect private property, to discourage people from forcibly entering private property, and codifying and consolidating the law in that regard. If we accept these rights which I have mentioned, then I suggest that this debate should be merely on the question of the merits of the Bill in achieving that object, in deciding if the Bill is the best possible one in attempting to deal with the problem which undoubtedly exists, and which will have to be dealt with unless the present situation in regard to forcible entry and squatting gets entirely out of hand.

There is no use pretending that we are dealing with a problem that always existed, that we are dealing with the ordinary quarrels that exist between landlord and tenant, that we are dealing with the kind of situation that existed from time to time, in a very mild way, in the past. At present we are up against a very definite campaign, a very definite conspiracy, to enter property forcibly for political or quasi-political motives. This is quite different from the kind of situation which has existed until now, where the rights of property and the rights of people to get their property back was in issue. There is a special problem there, one which cannot be dealt with by the present law, and which requires some legislation, but the only issue before us is the issue whether this Bill, in its present form, is the best way of dealing with a problem that undoubtedly exists.

The opponents of this Bill, in the course of various attempts to sidetrack the issues, get away from the basic issue involved. They have attempted to distort the constitutional rights. They have attempted to distort, in particular, the role of those who would forcibly enter and the role of the owner of the property. On the one hand, we are given the impression that all those who attempt forcibly to enter property are well-intentioned, high-minded, full of good motives and well meaning in every way; on the other hand, we are given the impression, when the owners of the property are being described, that they are always speculators, landlords, mortgagees. You can almost see the people in question twirling their moustaches and twirling their canes, as in some melodramatic novel of years ago. This attempt to paint the people that you want to support in the best possible colour, and to paint the people that you want to oppose in the worst possible colour, is one of the most invidious parts of the campaign which has been directed against this Bill. It is a very serious aspect of the campaign, and introduces very dangerous principles indeed. It introduces the principle that there is to be one law for one class of people and another law for another class of people. It introduces the principle that there should be legal rights for those whom you consider to have good motives, good intentions, that there should be one class of law, one set of legal rights, for those of whom you approve but apparently there are no rights for those of whom you disapprove. This is a very dangerous principle. It is not a new one. It is a principle which has been introduced in a number of countries over the last 50 years and introduced with notorious results. I could quote many instances. In Nazi Germany the Jews had no rights. They were treated differently from other people whereas the ordinary citizen had certain rights. If you were a Jew, and consequently somebody of whom the State disapproved, then you had no rights and were not entitled to the benefit of the existing laws.

When we come to the question of the goods and the bads in this debate, the fact is that although some of those who have attempted to forcibly enter buildings in the last few years had good motives, high motives, certainly not all of them had high motives. Those who forcibly entered were not all angels. The vast majority of them did so from motives which were highly suspect, for motives which were directed towards political ends and which had nothing whatever to recommend them. Even for those who have good motives, and this is the important thing, if we were to allow people to break the law merely because they had good motives, then this would be the end of the rule of law. If everybody is to say "My motives are good, my intentions are good, therefore, I am entitled to disregard the law" then the rule of law as we know it will rapidly come to an end.

The rule of law cannot be interfered with merely because some people think they are right. It cannot be interfered with even if, in a particular situation, their motives are right. The law is there and it must be respected. If the law is a bad one then it can be changed in due course by the Oireachtas, but it cannot be ignored or broken by those who think their motives are good. Civilisation depends on the existence of the rule of law and democracy ensures that the rule of law, the laws passed by the people, are laws which are generally acceptable to the people. Unless we have these two basic concepts and unless they are recognised for their importance, then any talk of the rule of law and any talk of the question of who may or may not break the law is a futile one.

No self-respecting community, no self-respecting Government, could allow small groups to take the law into their own hands, to ride roughshod over the rights of the individual, the rights of property. If this were allowed, then the community would not deserve to have the protection of the law any more and the Government which allowed it to continue would not deserve to remain very long in office.

The main question which we have to decide is whether the Bill is appropriate to the undoubted problem which exists. When reading the criticisms that have been made of this Bill, there seem to be two views emerging. The interesting thing about these two views is that they are contradictory. We have, on the one hand, the argument that this Bill introduces new, repressive, unusual powers. On the other hand, we have the argument that the powers contained in this Bill are not necessary, because all these powers already exist in Acts and statutes which have been there for several hundred years. This argument has been made that the powers are there in the Acts, that the Bill introduces little that is new. This point has been made by several prominent Members of the Fine Gael Party and it has been made by Senator Mary Robinson in the House today. In an admirable review of the law of forcible entry she showed that all the powers in this Bill have been there for upwards of 500 years, starting with 1381 and extending up almost to the present day. If all the powers have been there up to now, then the other main argument against the Bill, that it is repressive, that it is new and unusual, just does not hold any water. The fact is that these powers have been there and the suggestion that there is something quite unusual and new in this Bill just is not true.

The second argument that has been made is that there is no need for any criminal legislation to deal with this problem, that the matter should be dealt with by the civil law. But again there is this conflict between those who oppose this Bill, some of whom say there should be no introduction of any criminal Bill to deal with the situation, that it can be dealt with by civil remedies, and, on the other hand, and almost in the same breath, we have people saying: "But the criminal remedies are already there".

Professor Kelly

What about the argument that they have not been used?

Mr. E. Ryan

I shall deal with that in due course. The fact is that the powers have been there and that the civil remedies available are not appropriate, are not enough, to deal with the kind of situation which we are attempting to deal with in this Bill.

Senator Robinson, in her outline of the law in England, the law which of course applies here as well, attempted to prove that it was quite appropriate to the problems which face us and that it had been exercised in England in recent years and exercised quite successfully and satisfactorily. It is true, of course, that there have been a number of cases in Great Britain in the last few years but it is not true to say that it worked quite satisfactorily, because there were a number of shortcomings in the course of these cases. First of all, the exercise of the law which exists there was much slower than was necessary to deal with the kind of situation which, to some extent, exists there and certainly exists here. Although the ancient laws were used in these situation the machinery proved to be extremely slow and inappropriate for dealing with the situation that it attempted to deal with.

The second point is that the judges before whom these prosecutions were taken, although they did finally say that the law was appropriate and the offenders were finally dealt with, made comment on the fact that because these statutes were so old the law was most uncertain and they had considerable difficulty in interpreting the law and considerable difficulty in administering it in some of the cases to which Senator Robinson has referred. It is not true to say that we could rely on these ancient statutes. They do provide much the same powers but the powers are uncertain, slow and not appropriate to the situation with which we are trying to deal.

These powers are in very archaic statutes. Most of them are written in old French or Latin and it is extremely difficult not only to interpret them but to relate them to present-day conditions. Even the words that are readily recognisable or that can be interpreted very often had different meanings then as compared with the present day. There is a very strong case for bringing these laws up-to-date, for adapting them to modern conditions and for doing so without changing the principles involved but clarifying and consolidating the powers which they contain. This is not something which in normal circumstances any Member of this House or of the Oireachtas would object to. In fact, this is something that is very often called for.

I do not propose to deal with all the sections of the Bill because, although the Bill was opposed on almost every word when it first came out, the opposition to it, the arguments against it, have gradually been whittled down to some extent because genuine points were made in the other House and amendments were introduced to meet these genuine points. The Bill has been amended very considerably as compared with the Bill as introduced. But the Bill has now reached a stage where, as far as Fine Gael are concerned, if I understand them rightly, the only section they really oppose is section 4. As far as Labour are concerned, they oppose the Bill fully; they do not understand the Bill fully but they are against it and there is no use going into details as far as they are concerned. They are just against the Bill and that is that.

To get down to the only remaining issue in the Bill and that is section 4. We are dealing with this question of "encourage or advocate". There are two principles of law involved in this section, one of them conspiracy and the other incitement. There was a good deal of talk at one time about guilt by association, about the new principles that were being introduced, the dangers to the individual and to liberty, but in due course even the most bitter opponents of the Bill were forced to agree that the two principles involved were merely the very old and well-established principles of conspiracy and incitement. Although this Bill may be worded differently in some respects from the older Bills and older statutes dealing with conspiracy and incitement, basically what is contained in section 4 of this Bill is a very old-established principle that you may not conspire to commit an offence and you may not incite other people. The fact that the words used, in some respects, are different from those used in older statutes means no more than bringing these statutes up-to-date, by using modern words, words which can be readily understood at the present day. There is no doubt that for the ordinary man in the street some of the words used in older statutes are very difficult to understand. They have meanings which are no longer relevant.

We had Senator Robinson talking about the uncertainty of the citizen, that he should know whether he has broken the law, that he should know exactly what the law is and where he stands in relation to it, whether he is likely to be found guilty of an offence. This bringing of old principles and statues up-to-date and adapting them to present-day conditions and language is precisely what is required to meet the situation to which she referred. It is essential that the man in the street should know exactly what the law is and should know what it is in words that he understands. Certainly, there can be no doubt that the words "encourage and advocate" can be easily understood by a person who might contemplate doing something that could be an offence againt this Bill. It is much easier for him to understand the language in this Bill than some of the old words like "incite", "procure", "counsel" and so on which are the words used in the old statutes on incitement.

Professor Kelly

Could Senator Ryan tell us whether it is the intention of the Government to amend all the statutes then which contain these old words?

Mr. E. Ryan

In due course. Given the chance, and if the Opposition do not hold us up unnecessarily for months in this kind of a campaign, we will get around to it.

Professor Kelly

We really must apologise for debating at all when you have so much you want to get done.

Mr. E. Ryan

In due course. We have plenty of time. It is the intention of the Government, as far as possible, and given the opportunity, to bring Acts up-to-date so that they can be readily understood by people at the present day. What this Bill does is no more than to adapt old statues and principles to present-day needs. It does no more than that, and that in itself is something which should be welcomed by any well-meaning person or anybody who is approaching this Bill in a bona fide way. It is important when we are dealing with this Bill and this question of section 4 to look at the wording, having regard to some of the misrepresentations that have taken place in regard to the section. It says: “a person who encourages or advocates the commission of an offence under sections 2 or 3”. That is precisely what the Bill says: “encourages or advocates the commission of an offence”. There have been arguments used in the course of the debate in this House and elsewhere which suggest that any comment by a newspaper, television or by anybody else would be an offence. It is important to realise that newspapers and television have no better rights than anybody else, or no special rights. This refers to every citizen. He is not entitled to conspire to commit an offence; he is not entitled to incite; he is not entitled to encourage or advocate anybody else to commit an offence.

The Bill says: "encourages or advocates the commission of an offence". It does not say, as has been suggested by many of those who oppose this Bill, that merely because a newspaper editor or a reporter comments on a matter of public concern he is committing an offence. It does not say that if he says, for instance in the context of the Hume Street situation: "It is a shame that these fine old buildings should have to come down" he is then guilty of an offence under this Bill. It does not say that, because somebody comments on the fact that we have a housing problem and that certain people are not able to get houses immediately, that is an offence. It merely says if he "encourages or advocates the commission of an offence". There is all the difference in the world between commenting on a problem that exists and saying that, because a problem exists, somebody should commit an offence to try to deal with it.

Professor Kelly

Would Senator Ó Riain allow me to ask him a question? Will he just give way to me for a second? Would he not agree that——

Mr. E. Ryan

Is this a point of order?

Professor Kelly

I shall not insist because this is a complicated question.

Acting Chairman

Senator Ó Riain should be allowed to continue without interruption.

Mr. E. Ryan

The Senator will have plenty of opportunities during the next Stage. The fact is that anybody is entitled, before this Bill is introduced and will still be entitled after this Bill is introduced, to say anything he likes about problems that exist; but he will not, either before or after the passing of this Bill, be entitled to advocate the commission of an offence to deal with that problem. Advocacy of doing something about a problem is part of our democratic system, but it must be quite clear that what we advocate or what we suggest should be done is something which should be done by democratic means and not something that is contrary to the law. That is something to which I referred earlier on when I referred to the Article in the Constitution which made it quite clear that any interference with the right of property would only be interference that was permitted by laws passed by these Houses and not interference by somebody taking the law into his own hands or encouraging or advocating anybody else to take the law into his own hands. No matter how serious the problem is, in the opinion of the citizen, the newspaper editor or anybody else, no matter how serious he thinks it is, he is entitled to say it is serious, to advocate that something should be done about it, but he is not entitled to advocate the commission of an offence. That is what this Bill says and it does not say any more than that. If anybody who opposes this Bill has a kind of idea that the Press or anybody else is in a special position or should be allowed to advocate or encourage the commission of an offence, then they are advocating something which is entirely outside the Constitution and entirely contrary to our democratic system.

I have read most of the arguments which have been advanced against this Bill and, the more I read them, the more convinced I am that the campaign against this Bill has been grossly exaggerated, that it has been completely irresponsible and that it has been frequently downright dishonest. I appreciate that the Members of the other two parties are desperately in need of an issue to try to rehabilitate their fortunes——

Professor Kelly

You are the ones who need the rehabilitation.

Mr. E. Ryan

——and I can see that they grasped this straw in the hope that this would prove to be the issue they sought. But I have news for the Members of the Opposition parties, if they have not already got the message. The message is that they picked a loser once again, because the man in the street is not appreciative of what they are attempting to do in this Bill. The man in the street sees quite clearly what the issues are in this Bill. He sees that this is a Bill to discourage those who would attempt to forcibly enter his property or the property of any other individual. He sees no reason whatsoever why he should be deprived of the protection which this Bill will give him to prevent people forcibly entering his property. If this is the only issue that those who oppose this Bill can think of, then they deserve the contempt which the man in the street has for their efforts in this campaign.

Mr. Russell

I do not intend to say very much on this Bill. I have not the advantage—I presume it is an advantage—of being a lawyer. My remarks will be very much those of a layman. When Senator Ó Riain was speaking at the beginning of his contribution to this debate, I seriously thought that I was finding myself in the position of those who in opposing this Bill were advocating ipso facto the forcible entry and occupation of premises. As he went on I was very glad to see that he somewhat changed his line in that regard.

I do not think it is true to say that because people are opposing this Bill— a number of people have opposed it who would be regarded as men of property like himself and myself—are doing so for ulterior motives, purely for political purposes, as the Minister suggested in his introductory address, or for some other ulterior motive that comes to mind. A number of people are generally concerned with certain sections of this Bill and have suggested that, in endeavouring to deal with what is a very serious problem the Minister has, to some extent anyway, taken a sledge hammer to kill a fly. I should like to make my own position on this perfectly clear and to lay it on the line. I accept the principle of this Bill wholeheartedly. I should like to say that I particularly agree with the sentiments expressed by the Minister in the concluding parts of his address where he said:

Every freedom carries a corresponding responsibility and where freedom is exercised without responsibility it degenerates into licence. The Government and the Oireachtas have the clear duty to protect the rights and freedoms of all citizens——

which I presume includes also non-property owners——

not just those of the noisy minority in our midst who, while professing to champion the cause of the weak and the underprivileged, seek in fact to trample on the rights of the silent majority and to deny them the very freedom whose cause they profess to espouse. This is not by any manner of means to condemn anybody for voicing legitimate grievances and for keeping on doing so. But when people resort to force and violence to achieve their ends the situation takes on a different complexion. In a democratic regime such as we have in this country, where laws and policies can be altered in a peaceful and orderly way, there can be no justification for the use of force and violence.

I do not think that anybody in this House or in the other House, or anybody with any sense of responsibility could disagree with those sentiments. I should like to make it clear that I subscribe wholeheartedly to them.

I must disagree with my colleague, Senator Kelly, when he suggests that the Minister's speech was prepared for him by his own civil servants. They may have drafted a portion of the Bill dealing specifically with technical section, but the other sections, some of which resulted in the Minister being called to order by the Cathaoirleach, are obviously in his own inimitable style.

Professor Kelly

Yes. The abuse was a native product all right.

Mr. Russell

Unfortunately, the Minister is not here now; he is a townsman of my own. The Minister by his attitude in many cases to reasonable amendments and reasonable opposition in the Dáil has brought a good deal of unpleasantness and has held up the progress of the Bill through the other House. It could have had a far more expeditious and less contentious passage if the Minister had shown some willingness to accept reasonable amendments to sections of the Bill which are still causing concern to Deputies and Senators who, like myself, support the Bill in principle but are not satisfied with some of the sections which, once passed into law, might be interpreted in a manner different to the Minister's expressed intention.

That is one of the worries I have about it. I am not a lawyer; I read the Bill to the best of my ability; I read the Minister's speech on several occasions and I found it very hard to relate the Minister's explanation of intention to certain sections of the Bill. As Senator Eoin Ryan has said quite rightly, people are entitled to understand the law. They are entitled to have it spelled out to them. If Deputies and Senators are uncertain or apprehensive about certain sections of the Bill, it will be extremely difficult for the man in the street to understand its substance.

Property and property ownership are often emotive terms, particularly in the historical context of this country. To some, the words "property owners" conjure up property tycoons, Tacateers and ranchers on the one hand while, on the other hand, they suggest small property owners such as shopkeepers, farmers, householders and persons hoping to become property owners in time. Everybody has a right to private property. That right is guaranteed in the Constitution. The Government of the day have a duty to protect this right. They also have a duty to defend and help the men of no property or no housing by ensuring that the State's resources are fairly applied to the provision of houses for people in need, and to public amenities for the general enjoyment of those who cannot afford to provide their own.

Any failure on the part of the Government—and this point has been touched on by other speakers—to act in this manner is bound to give, and has given, grounds for legitimate protest by the underprivileged and homeless. Unfortunately, as the Minister has pointed out quite rightly in his speech, these grievances have been used by subversive and dangerous elements to further their own ends. The Minister is right in stating that these subversive elements must be contained in the interests of the silent law-abiding people who make up the great majority of our people.

This raises the question adverted to by Senator Eoin Ryan and other speakers: is the Minister going the right way about achieving the ends he and we desire? Again, I must emphasise the fact that I am not a lawyer, but it seems clear to me that the existing civil law, operating through the district and circuit courts and possibly the High Court, is too slow and cumbersome to deal with the type of problem outlined by the Minister. This begs the question to one layman at least, and I am sure to many others: can the existing civil laws be amended to deal promptly and effectively with the type of offences outlined in the Bill? I find it difficult to answer that question because I have read the Dáil Reports and I have read articles by various learned lawyers who seem to disagree on this. There does not seem to be any doubt but that some at least of the cases stated in the Bill should be treated as criminal offences.

I am concerned about other and minor offences which the Minister has suggested can be treated with discretion by the courts but which are not, to my mind, spelled out sufficiently clearly in the Bill. It is not too fanciful to imagine that, if this Bill had been enacted 1,971 years ago, the Holy Family themselves might have been accused of being squatters.

Mr. Nash

But not forcible ones.

Mr. Russell

I would like the Minister in his reply to clear that point for me, if he can do so. Can minor offences, such as cases that have been mentioned here in this debate and in the other House of homeless people, people in dire distress, a family with an expectant mother in desperation taking up possession of premises, be treated with special discretion under this Bill? As I read it, it seems to me that they will be given the opportunity to leave the premises concerned if requested to do so by a member of the Garda. If they are unable or unwilling to leave the premises, then apparently they are guilty of a criminal offence.

Senators who have spoken, and many speakers in the Dáil, have commented on this now famous or infamous word "encourage." Again I have doubts on this score. I have some belief that "encourage" does not mean "incite" and I should like to see some redrafting of this section to suggest that where the word "encourage" is used in the Bill, "encourage" means clearly "with intent to incite or provoke." I am going back to Senator Ryan's point again. It is a good one and I hope he will not mind if I make use of it because I do so quite sincerely.

We are concerned to see that the man in the street knows what this law is about, and what the Bill is about and what the Act will be about. To him the word "encourage" does not mean the same thing as it means to a learned lawyer, possibly, who can quote from statutes in this country and elsewhere. "Encouragement" to him can have a different meaning altogether. Those of use who have families have often seen the words "an encouraging school report." I do not think anyone would suggest that that report could be used to incite or to provoke. I give that as a rather crude example. I should like to see the word "encourage," if it is to be included in the Bill, qualified by the addition of some such words as "with intent to incite or provoke." I think this would make the meaning of the word quite clear to the man in the street.

A lot of concern has been expressed —I nearly said that many crocodile tears have been shed—about the freedom of the Press and the alleged or real danger to the freedom of the Press. It is sometimes overlooked that the Press or the communications media are, like the State, composed of individuals with all the strengths and weaknesses, inhibitions and prejudices, good points and bad points, of the rest of humanity. Therefore, they should be subject to the same restrictions as other members of the public, subject always to their right, at all times, to freely and fairly criticise, encourage, exhort and generally comment on the doings and sayings of members of the public, including public representatives. Any Government interference with the media—television, radio, Press or pamphlet—must be resisted unless it can be shown clearly that the media are acting or are likely to act against the interests of the people, not against the interests of the Government of the day.

I am also concerned about section 4 (2) which suggests, I think, perhaps quite wrongly—the Minister is quite emphatic that it does not suggest it— that guilt by association can occur "where a statement... is made by or on behalf of a group of persons, every person who is a member of the group and who consented to the making of the statement shall be guilty of an offence...". Pleading as a layman, reading that section would suggest to me that, if I were a member of a group, unless I specifically opposed a statement which it was proposed to make, I would be, by consent, associating myself—possibly by giving way to majority rule—with that statement even though I disagreed with its terms. I may be quite wrong in that. As I have said, I am speaking here as a layman. Perhaps the Minister could satisfy me, and other Senators, on that point.

During the long debate in the Dáil the Minister dug his heels in against any amendments from the Opposition parties. I say this to the Minister as fellow townsman, a colleague of mine in public life in Limerick. I think he would have helped matters greatly and, indeed, I think he would have received a measure of support from some Members of the Opposition, if he had shown a willingness to accept some amendments. I sincerely express the hope that he will approach the debate in this House with a more open mind. He should accept the fact that public representatives are generally activated not against the Minister, but on behalf of the people who elected them.

Miss Owens

I was rather amused to hear Senator Eoin Ryan pass the comment that, on the passage of this Bill through the other House, the arguments against it had been whittled away bit by bit. Of course, quite the reverse was true. They were not whittled away. They were butchered away by the parliamentary device known as the introduction of the guillotine.

Tomás Ó Maoláin

After six months.

Acting Chairman (Mr. McDonald)

I do not think we should have a rehash of what went on in the other House. I hope Senators will treat the Bill as they find it here.

Miss Owens

I do not wish to introduce any note of rancour into what has so far——

Mr. O'Higgins

I think that to use the term "whittle" in the context of the guillotine was a bit sinister.

Acting Chairman

Senator Owens to continue without interruption, please.

Miss Owens

I do not wish to introduce any note of rancour into what I think has, so far, been a very valuable debate on this controversial Bill.

Tomás Ó Maoláin

Well, do not.

Miss Owens

It is controversial and there is no use in denying it or in thinking that by keeping on saying that it is not controversial but very reasonable the objections to it will go away. They will not.

There are a few points I wish to make on this Bill. I assure the House that I intend to be brief. I have not exhausted the patience of the House with the length of my contributions to date and I do not intend to alter my practice in that regard. However, we have to look back on why the Bill was introduced in 1971. The Minister outlined some of the reasons for it in his opening remarks today. Some of them could be considered to be fairly reasonable. When he introduced the Bill in the Dáil—if I may refer to the other House—in January of this year, it is reported in the Official Report of the Dáil debates that the Minister said it was introduced in a period of relative quiet. That is true because squatting, as such, has practically died out in the city of Dublin.

The history of squatting is, as the previous speaker said, at least 1,971 years old and possibly older. It is true that housing authorities have always had a squatting problem. Sometimes it was minimal but in recent years—up to the introduction of the Housing Act, 1970, which brought in specific provisions to deal with squatting in local authority houses—it had grown to extraordinary proportions, particularly in Dublin city and to quite some extent in the Dún Laoghaire Borough. This was brought about by people with a genuine need for housing. I can recollect quite clearly the start of what became the Housing Action Committee and the reason for it. In fact, I can recollect quite clearly the particular eviction case that brought about the coming into existence of that group. I do not want to bore the House with the details of that case but up to then and, in fact, even after that, the housing authorities were evicting squatters. They were recovering possession of unlawfully occupied local authority houses. The law at that time seemed to work quite well.

I am not a lawyer and, frankly, I cannot see what happened to necessitate the introduction of new legislation to deal with squatters. It seems to me as a lay person that there was a failure to implement the existing legislation. There may well have been legal difficulties which I do not understand and of which I am not aware, but it seems extraordinary that what had been done for years suddenly could no longer be done. To a lay person there was no visible change except that the numbers of squatters had grown. I should have thought that there were better ways of dealing with the more numerous problems than just bringing in new legislation. We are at a stage now where the problem has practically died out, certainly in connection with local authority houses. When the new Housing Bill was going through the House, many squatters in local authority houses came to the housing authority and offered to hand up their keys if they could be provided with any alternative accommodation. They did not ask to be allowed to stay in the house in which they were squatting; they were merely asking for some form of shelter. In fact, many of those squatters handed over their keys peacefully, and went back to live with their relations, or obtained some rooms and applied for and obtained rehousing when their priority was reached.

Might I say to Senator Ryan and other Members of the House that it is a very simplistic propagandist approach to this Bill to say that because you are against the Bill you are in favour of squatting. This is dishonest and it is unfair to the many serious-minded people who have been considering this legislation and who in fact oppose it. It is not good enough just to say that because you are against this Bill, you automatically must be in favour of squatting and that you must be in favour of a breakdown in law and order. That is just not true.

I should like to go on record as saying that I personally believe in law and order and I personally believe that we must see that priorities in housing lists are maintained and we must have some method of distributing a very small pool of available housing. That is not to say that I would group all squatting problems together, as the Bill appears to me to do. It is difficult for a parliamentary draftsman to take into account motivation for the commission of a crime but an attempt must be made to do it, because I should imagine any justice considering an offence would take into account, in human justice at least, why the crime was committed.

There is a vast difference between a situation in which homeless people in the streets of Dublin squat in an empty house, a house which may be left empty for several months because the owner is waiting to acquire the whole block so that he can demolish it—and under our law he has a right to do that although it is a bit more restricted now than it was—and a situation in which a house is broken into—perhaps the owners are on holidays—and there is vast damage to property. There is a vast difference. I am convinced that there is. We should try to cope with it.

This Bill, to my mind, treats all squatters "regardless" and treats everybody who indulges in forcible entry and occupation in the same way. There are no different penalties in the penalty section. It looks to me as if it will be left to the leniency of the justice, if he can exercise leniency. I am not a lawyer and I am not too sure whether he can. I am sure the legal members will explain it to me. But he could differentiate. The Minister also referred to the other type of offence which is not a housing problem as such: breaking into offices and the disruption of public business. Probably if that was all that was involved there would have been very little opposition to this Bill. As I pointed out, far more than that is involved.

The other offence mentioned by the Minister is the fish-in. Again, there are two reasons for this The Minister claims that there is a sort of quasi-political reason, and he may be right, but it has achieved the setting up of an investigation of and a commission on our fisheries To that extent it may have achieved something remarkably good for the people of Ireland Therefore, again we would probably have to look at the motivation and the eventual outcome of it and judge it in that light, not just in the single light of the fish-in and entry on people's property

I have a query about section 1, subsection (4) which states:

Nothing in this Act shall affect the law relating to acts done in contemplation or furtherance of a trade dispute within the meaning of the Trade Disputes Act, 1906.

This is a reasonably valuable inclusion in the Bill from the point of view of the trade union movement. However, as I understand the Trade Disputes Act, it is at least argueable as to whether a sit-in or a work-in is covered by the Act. I could well see people on the other side and people elsewhere asking why would any bona fide trade union want to indulge in this type of action. The Trade Disputes Act does not extend to a number of legitimate trade unions by reason of the decision in the case of the Carlingford Lough Commission. I mention local authorities again because this is the sphere with which I am particularly conversant. In fact, it is not within the scope of the Trade Disputes Act for any union to put a picket on a local authority because they are not engaged in trade or business and therefore do not get the protection of this Trade Disputes Act, 1906.

This is a provision which has been mentioned several times by the Irish Congress of Trade Unions and for a number of years we have been promised amending legislation to cover that point. It is probably something that was not in the mind of the people who framed the legislation but it does illustrate how the intentions in legislation can become subject to court decisions which change what the legislation was intended to do. Therefore, the position as I see it under this Bill is that workers in a business could not put on a picket because of the restrictions in the Trade Disputes Act, 1906. We have the case of the type of work-in that is now being carried out in the Upper Clyde. I think most people in this country have sympathy for the workers in the Upper Clyde shipyard at the moment and would sympathise with the action they are taking to try and protect their livelihoods but they would, I think be commiting an offence under this Bill. If I am wrong I should be very glad to hear the Minister explain it to me. I am raising it as a query. I am not in any way saying that I am right and everybody else is wrong, but it is a matter of genuine concern to me.

The most contentious section of this Bill is section 4. I was very impressed with what Senator Eoin Ryan had to say on it. If the Bill provided just what Senator Ryan said, I think there would not be and would not have been the controversy that there is about it. However, we cannot accept Senator Eoin Ryan's word. I am sure he spoke in good faith but we cannot accept that as the law. The Minister has given a similar assurance but part of the problem is that we do not know and there is no way of knowing—nobody has a crystal ball which will show in five years from now how a court of law will interpret the word "encourage". I do not wish to get involved in any sort of verbal dynamics or dialectics or anything else on the word "encourage." We have had quite a lot of them. I am convinced that it is a much broader word, a much wider word and with much wider implications than the word "incite." It is not a modern word. It is a word that goes back to the 13th, 14th, 15th Centuries.

The Minister said something very aggressive in his opening speech today when he said that the Press in this country had allowed themselves to be used as the political pawns of the Opposition parties. It is regrettable that this has been said in a House of the Oireachtas. I would ask the Minister: did he consider what he said seriously? Does he really expect us to believe that he believes that every newspaper editor, including the editor of the national paper which is known as the organ of his own party——

Tomás Ó Maoláin

And it is not.

Miss Owens

——allowed themselves to be used as pawns in a political game? If this were true, it would indeed be a very sad day for this country. I was surprised to hear the Minister say that. I think the Press in this country have served us pretty well. They attack all sections of the community and they hit fairly hard. The trade union movement got a fair roasting on various occasions from the Press. This is as it should be. When we deserve it we will get it.

I do not think that any of us in public life should be over-sensitive about this. I imagine that most of us are not. The Press have a have duty to serve this country and they have done it reasonably well. We all have our little grudges, and we all have our favourite paper, and we all have our favourite commentator, and we all have people we dislike. It is not good enough to say just because we do not like a particular stand they take, that they are doing it for some ulterior political motive.

One of the fundamentals in a democracy is the right of the people to be informed and we must ensure that that right is protected. We inform them in many different ways: through our educational system, by developing critical faculties in our children, through the newspapers, through radio and television, through other media, and through literature and debate. Every one of these is very important for the maintenance of a full, proper, free democracy. I believe that the Government party cherish democracy just as much as the Opposition.

Tomás Ó Maoláin

Thank you.

Miss Owens

However, at times it would appear that they do not. Quite recently, the Taoiseach indicated that he thought the Press were giving too much coverage to protest groups. This was quite a surprising thing for the Taoiseach to say. If protest groups are part of our society, if they are there, we should at least know they are there. It is no use closing down on the reporting of their activities, or thinking that by not telling the people they are there, by sweeping them under the carpet, they will go away. They may go under the carpet but, when they erupt, the eruption is terribly violent. We might, indeed, head towards something far worse than we have seen to date in any part of this country.

Before concluding, I have another query on section 9. I do not intend to go into all the details of all my objections to section 9, but I presume that it is quite deliberate when it states:

A member of the Garda Síochána may arrest a person without warrant where—

—and so on.

In the other sections where the Garda Síochána are mentioned reference is made to "a Garda Síochána in uniform". I assume that this is quite deliberate and that this means that plain clothes men and Special Branch men can make an arrest without warrant. That is a piece of information which I should like from the Minister, when he is replying.

On the effects of the Bill in general, I believe that the type of protest at which the Minister is aiming has died out. Protest of any form is of use to the people who engage in it only for as long as they capture the attention of the public. The protest operations of some of the groups which the Minister, on his own admission, is out "to get" under the Bill, have died out. I am seriously concerned that, since this Bill was introduced and debated in the other House, it has become an impetus to other groups. Finally, I should like to say that people with a vast knowledge of law, with vast experience, and internationally recognised in the field of law, have stated that this is a form of legislation which should be challenged elsewhere and should be referred to international organisations for consideration. It lowers our standing as a free democracy in the eyes of other democratic countries.

One of the things that we all abhor about Fascist and Communist countries —and I put the two of them together on this question—is that there is no freedom of expression in them. There is no freedom to protest. In both states they are treated with equal disregard and with equal force and violence. It is a pity that we will see—and I suppose we will see it—this type of legislation on the Statute Book of this country. In addition, it has significance—it may not as of now have great significance, but it has some—in relation to what is happening in the other part of the country. Those who listened to the news broadcast today cannot but have taken note of the fact that Mr. Brian Faulkner quoted the Tánaiste on internment. I am sure Mr. Faulkner would be quite happy to quote the Forcible Entry Bill as part of the legislation in the Republic, so that he can say: "This is no great free State".

Mr. Nash

I welcome this Bill. I welcome every section of it. It is a short Bill, comprising ten sections. I welcome it because it puts order and parliamentary democracy before force and anarchy. The keystone of the Bill is the word "forcible" which is defined as "using or threatening to use force", or intimidation by reason of numbers, circumstances or otherwise. What the Bill provides is that, by the use of force of this nature, people may not interfere with the rights of others as given to them by the Constitution, and by the laws of this country. The Bill says, nothing whatsoever about squatting in the form referred to by Senator Owens. It must be forcible. The word "forcible" runs through each and every section of the Bill.

I find it particularly hard—and I am sorry that they are not here at the moment—to follow the arguments of two lawyers on the Opposition side who spoke on this Bill—Senator Kelly and Senator Robinson. Senator Kelly stated that the Bill should allow certain things, such as squatting by necessity. Senator Owens referred to much the same thing, that there may be particular circumstances where persons go into a house, because they have no home for the time being, and they commit an offence by so doing. They do not, unless they take forcible possession; unless by fear, intimidation or brute force, they take possession, they commit no offence whatsoever. Even if by brute naked force they take possession, if there are extenuating circumstances that is for the court to decide and that is for the court to decide in all criminal offences.

There is a law which makes it obligatory on a man to tax his motorcar. If he has not his car taxed and somebody meets with an accident and if he has to go for a doctor in an untaxed car he can be prosecuted for using an untaxed car. However, if he can show that he was doing something that he had to do in special circumstances, it is open to the court, if there is a prosecution, to apply the Probation Act, or otherwise to deal with it as the circumstances require.

There should be no such thing as selective legislation. There should be— and there is to a limited extent—the selective application of punishment. That is a very different thing altogether, but that is for the courts to apply. It is not for legislators to legislate selectively. That would go to the very roots of what is considered to be good or sound jurisprudence.

Senator Kelly gave various other reasons. It is with the greatest regret that I refer to the fact that some of the reasons he gave were that the Government and Ministers of the Government should be abused. That is completely detracting from what should be the dignity of this House. It is a matter of grave regret to me that Senator Kelly should refer to the Government as a group of idiots and that he should take advantage of his position to refer to a Minister who has nothing whatever to do with this Bill as a "mechanical mouse". That detracts from the whole basis of debate and intelligent discussion.

Mr. O'Higgins

The Senator heard some of the terms applied to members of the Opposition yesterday from the benches opposite.

Acting Chairman (Mr. McDonald)

She further states that the word "advocate or encourage" are not defined in the Bill. She discriminates between advocating an abstract doctrine and advocacy of an action. This could not be more clear in subsection (1) of section 4. It is not advocacy of an abstract doctrine but advocacy of the commission of an offence, the very thing to which she refers. The subsection states:

a person who encourages or advocates the commission of an offence under section 2 or 3 of this Act shall be guilty of an offence.

This is the type of situation in which one finds oneself forced to deal with arguments of this nature. I find it so absolutely incredible that I am beginning to wonder if these people are trying to throw dust into the eyes of the general public. They seem to have succeeded very effectively in so far as the Press are concerned. Are they serious in their arguments? Do they really believe them?

In dealing with "encourage" or "advocate" Senator Kelly makes great play of going back to an Act of Parliament of 1939—the Offences Against the State Act—and he quotes section after section where those words are used. He states that because these words are used in this particular Act of Parliament, they are mixing with bad company, and, therefore, they must have some extraordinary meaning.

I have found in going back over legislation that where you are dealing with a group of people as distinct from an individual, the words ordinarily used are "advocate" and "encourage". If you are dealing with an individual the words incite, seduce, solicit, aid, abet, counsel and so on are used. When Senator Kelly was doing his research it could not have been any trouble to him to go back some eight years further to an Act of Parliament passed by his own party. It is the Constitution (Amendment) Act, 1931. I find here the following references to the words "advocate" and "encourage". They are used in numerous places. Paragraph (b), section 19 (1) states:

engages in, promotes, encourages or advocates any act or enterprise

Paragraph (c) of section 19 (1) states:

Promotes or encourages the unlawful possession of firearms.

There never has been any trouble in construing that.

Paragraph (e) of section 19 (1) states:

promotes encourages or advocates the commission of offences.

Paragraph (f) of section 19 (1) states:

promotes encourages or advocates the non-payment of money payable to the central fund or any other public fund.

That is an Act of Parliament to which he could have referred. Why does he pick out one? Why does he not pick out an Act of Parliament passed while his own party were in power? That is an Act of Parliament which gives power under section 13 to arrest on suspicion. It is an Act of Parliament which under section 14 gives power to detain on suspicion. There is nothing insidious in the words "encourage or advocate".

The whole Bill itself is the essence of simplicity. The Minister has gone so far out of his way to make it clear to every person who may possibly come within the ambit of this criminal law that they are within it that they find fault with him for this. He has included in the Bill things which could easily have been left out which would be implied by law.

He states that section 4, subsection (1) could have been left out altogether. We are told that it interferes with the freedom of the Press. What is meant by the freedom of the Press? "Freedom" and "free" are words that are used in very many connotations. You can refer to a free meal, free love, or a free Press. Everyone is free within the limits of the law of the land, within the limits of the rights of his neighbour and the obligations that he owes to his neighbour. Only within those limits is anyone free. Why there should be selective legislation passes my comprehension. If we get to the stage of having selective legislation for the Press or for anyone else, then the sooner something radical is done the better. To suggest for one moment that what any person in this House should do outside of the House is a criminal offence and is not going to be a criminal offence if done by the Press is the essence of absurdity. May I say with a clear conscience that the Minister, no matter who he is—be it the present Minister or any other—no matter what his intentions, cannot, and in no circumstances could, abuse that subsection. The meaning is absolutely clear.

It is not the abstract doctrine, as I have shown. Even when it comes before the court the Act is construed in favour of the accused, as is every criminal Act. The accused is given the benefit of every reasonable doubt and unless the court—be it a judge or a judge and jury—are satisfied beyond all reasonable doubt that the Press if prosecuted have deliberately, flagrantly and in bad faith, mens rea, which is a fundamental of every crime, advocated——

Mr. O'Higgins

It does not enter at all into this because this is a statutory offence.

Mr. Nash

——or encouraged the committing of an offence under this Act the Press, like every other citizen of this State, all entitled to be acquitted.

Senator Owens states that the Bill is not necessary because we have had none of these offences since the Bill was introduced, or very few of them. Of course we have had very few of them since the Bill was introduced. If this Bill is not enacted the persons who will decide who are entitled to houses will not be the legislators or the local authorities. They will be an amalgam of unconstitutional groups, of anarchists, Leninists, Trotskyists, Maoists, all the rest of them. According to what principles will they decide? Will they decide according to the principles of Lenin, of Trotsky or of Mao, or will they decide according to the principles of some other unnamed political philosophy that, perhaps, is not even yet born?

We must be definite and we must have clarity. However, let us remember also that there is nobody so careful or so conscious of taking advantage of every section of the law of this country, or of any other country where they exist, than those same people who are prepared to break that law and take advantage of it. While they feel that this Bill is on the stocks and while they feel that by distortion and otherwise arguments can be raised against it, they will be very quiet and peaceful. But remove that Bill, withdraw it, and they are off again tomorrow. It cannot be introduced again. They and they alone will decide what is to be done.

We then get back to the situation which was posed for us by Senator Kelly of necessitous squatting. Who will decide the necessity? On what principle will it be decided? Who will decide whose house is to be taken? Who will decide when a house is vacant? Is it vacant because somebody is temporarily gone to hospital, gone on holidays, gone out to his day's work? Is that to be decided by an unknown group whose political philosophy we do not even know? Are the rights of those people and the conflicting rights of the citizens of this State, to be decided by the Parliament of this State? In my opinion that is the simple question that is posed and is answered in every section of this Bill. Therefore, I support every section and every subsection of it because I believe in democracy and I believe, above all, in Parliamentary democracy.

Mr. O'Higgins

I wish to say a few words about this Bill. I am somewhat surprised at Senator Nash's approach to the Bill. Perhaps, I ought not be because Senator Nash is a member of the Minister's party and the Minister has obviously decided that he would whip in whatever support is needed to enable him to count heads in the Seanad, even if he had to guillotine heads in another place in order to get this Bill through. It surprises me that in the Seanad in particular we should be told by a leading member of the Fianna Fáil Party that this Bill is simplicity itself and should be accepted, that what is involved in this Bill—perhaps, he did not put it this way but this is the effect of it—is a choice between Parliamentary democracy on the one hand and anarchy on the other hand. That to my mind is taking a very narrow and a very slanted view of a Bill which has become an exceedingly controversial Bill.

I do not think this Bill need have become an exceedingly controversial Bill. Had this Bill been approached in a different way, had it been handled in a different way, had it been introduced and dealt with in a different way, the result which the Minister hopes to accomplish by the Bill might have been achieved, but the Bill, when it left the other House might not and need not have been in the form in which it comes before us. I do not think that there is any strong disagreement in principle with the results which the Minister wants to achieve by means of this Bill. All the disagreement is with the method which the Minister has chosen to employ to achieve the results he wants to achieve.

I believe in the rights of private property, the rights of individuals to own their own homes, to own their own property. I am as well aware as any other Member of this House that those rights are subject to certain limitations enshrined in the Constitution and guaranteed by the Constitution. To my mind there is an obligation in certain circumstances on a government, whether it be this Government or any other government, to take legislative action in order to safeguard those rights if those rights are threatened in a way which requires legislative action to protect them. If the Minister were in a position to demonstrate to me unequivocably that a situation had arisen in this country that made this Bill necessary for precisely that purpose, to protect the rights of individuals to their own property, then I feel that possibly there was not a lot I could say in criticism of the terms of this Bill. I do not think the Minister has demonstrated that the existing civil law is not sufficient or that the existing civil law, with some modifications, could not be made sufficient to deal with the kind of problem which he wants to deal with in this Bill.

As I see it, there are two things involved, in the first instance, which have got to be considered by Members of this House. I am, perhaps, disappointed that some of the lawyers in the Government benches did not make this subdivision for the House. It is necessary to consider the case of disputes between citizens and disputes between citizens and the State. If there are two citizens of the State in dispute one with another that ordinarily is a matter for the civil law whether it is a question of trespass, a question of actionable slander, a question of damages or breach of contract, whatever it may be. It is a matter of two individual citizens being in dispute one with another which should be dealt with under the civil law of the land which provides those citizens with judicial machinery, with all the administration of justice, with the courts and with the statutes passed by this and the other House to decide the rights or the wrongs of a particular dispute. If any man enters my house and disputes my right to that house I am entitled to take my remedy against him within the framework of the existing law. If the problem becomes so extensive and so acute that the framework of the existing law is not sufficient to meet it, that the delays are too long, that the sanctions of the law are not sufficiently strong, then it would be appropriate for the Minister for Justice to come to the Irish Parliament, to explain the problem and to say that it is necessary to tighten up the civil law in order to ensure that each private citizen will be able to get "cothrom the féinne" from our courts—an equal measure of justice in disputes of this sort which might arise.

The Minister has not done that. He has decided instead—and you will find this in the statement he made here today —to make three new crimes and that is the first thing this Bill does. It makes three new crimes and it imposes penalties varying from £50 and/or six months upwards for each of these three new crimes. My first quarrel with the Minister is that, instead of undertaking through Parliament a calm and a searching examination to find out what defects existed in the existing law and the machinery there to administer the existing law and discussing the problem with Parliament, he should instead opt for making three new crimes. That is on the plane where the dispute is between citizens. I do not care whether we are talking about individuals or whether we are talking about legal entities, such as a corporation or a limited company.

The civil law is there to deal with their grievances and, generally speaking, it is the civil law that these people should be advised to depend on. This is a thing that obviously is present, at least to some extent in the Minister's mind. When speaking here this morning he said that the Bill is drafted on the basis that the sanction of the criminal law ought not to be invoked as a substitute for civil action against trespass or to protect property rights or remedy civil wrongs where—this is a quotation and I must emphasise the qualification—"circumstances are such that there is no threat to the community and no general public interest involved".

At least on that plane the Minister agrees with me, that the first and the basic law involved, or which should be involved, in these matters is the civil law, the right of one individual to have a civil action against the other if his rights are infringed. I do not think the Minister is correct in saying that this Bill is drafted on the basis that the sanction of the criminal law ought not to be invoked as a substitute for civil action. It seems to me that the whole Bill is based on bolstering up individual civil rights by the sanction of the criminal law and that, in order to do that, the Minister has deliberately in this Bill created new crimes and brought the whole thing unnecessarily withi the basis of the criminal law rather than the civil law.

In saying that I want to make this much absolutely clear: I do not condone for a moment illegal forcible entry and occupation of other people's houses or property, but the weight of my argument in this matter is that where individuals are concerned, where private citizen are concerned, it is a matter which should be dealt with by the civil law rather than by the criminal law.

The next point I want to make is in relation to where the State or State property is concerned. I would have very little quarrel with this Bill if it were limited to the protection of State property, because I think that the State in the context in which I am speaking consists of the whole community. There it is a question of the community property being involved. If any section of the community decide for their own purposes to disregard the rights of the State in the sense of the community it is right that the sanction of the criminal law should be brought to bear against them. I would at least make that distinction that this Bill, in so far as it would purport to deal with State property, would certainly find very little objection coming from me. It does not limit itself to that. Presumably State property is covered as well as property of individuals.

I disagree with the Minister's view as regards the application of the doctrine of mens rea to this particular statutory offence, which is being created here. Despite Senator Nash's researches into the use of the words “encourage” or “advocate” in earlier legislation, either there is or there is not a difference in meaning between “inciting”, “encouraging” and “advocating”. This is one of the reasons why I think that a different approach to the Bill might have enabled the Minister to get further more quickly. If there is no difference between “incites”, “encourages' and “advocates' and if a serious request is made by the Opposition to the Minister to substitute “incites' for “encourages” why does not the Minister accept that proposal if there is no difference?

Surely the only justification for the Minister insisting on retaining the word "encourages" in the Bill is that there is some difference between "encourage" in this sense and "incite". If there is no difference between them I would like to invite the Minister now to indicate that he will take out the word "encourage" and put in the word "incite". It would remove a considerable amount of my objections to section 4 of the Bill if the Minister was prepared to do that. It is an easy way out for the Minister if there is no difference between these two words in their meaning or in their construction by the court.

I am not satisfied that there is no difference between these two words. I am not satisfied that the word "encourage" is not, as Senator Owens suggested, a word which goes a lot further and is a lot broader in its application than the word "incite".

I do not want to indulge in a Committee Stage discussion of the Bill now but I want to make a present to the Minister of the statement which I have just made. If he will indicate that he is prepared to take out the word "encourage" and put in the word "incite" he will remove many of the objections which otherwise I would have to section 4 of the Bill. I say this as a person who is not an uncritical admirer of the news media. I have my quarrels with them from time to time but I believe, despite the way Senator Nash dealt with the question, that in any parliamentary democracy a free Press is a valuable asset. If the Minister is prepared to go that far in response to my request—I am sure I am supported in this by others on this side of the House—he may find the passage of section 4 a lot easier than he may otherwise find it.

I do not agree with the Minister's dismissal, in his opening remarks, of any danger of guilt by association being in section 4 of this Bill. Section 4 provides, as the Bill stands at present, that—

Where a statement in contravention of sub-section (1) of this section is made by or on behalf of a group of persons, every person who is a member of the group and who consented to the making of the statement shall be guilty of an offence under that subsection.

My recollection is that in the Bill, in its original form as introduced into the other House, there was a subsection which provided that a member of the group on whose behalf a statement was made could, if they so wished, specifically disassociate themselves from the statement. There is a variation in the Bill as it comes before us now. There is no doubt that under section 4 (2), if a statement is made on behalf of a group of persons every person in that group who consented to the making of the statement will be guilty of an offence. If we regarded the question of consenting to the making of a statement as requiring some positive action by the member of a group, then the person who did not take that positive action would be entitled to say: "But I did not consent".

That is not the way under section 4 of this Bill. In subsection (3) of section 4 we find that the mere membership of a group, on whose behalf a statement has been made, may be regarded by the court as proof of consent to the making of the statement. There is no way the Minister can get around that as being "guilt by association". I am perfectly conscious of the fact that under the terms of the Bill that is only one of the things that the court may take into consideration. The court will have regard to all the circumstances. Taking all the flesh away from it, the bones of it are that the mere membership of an association or a group may amount to consent to a statement made on behalf of that group.

Mr. Nash

If, having regard to all the circumstances.

Mr. O'Higgins

I know all that is there but having regard to all the circumstances, it is still, in my view, a fact that mere membership may be regarded and that it is open to the court to regard mere membership as amounting to consent. If that is not guilt by association. I do not know what the phrase "guilt by association" means.

Under section 4 of the Bill, as it stands, the question of guilt by association is a very real presence and a very real danger. I know it will be a question of leaving it to the court to decide and it is proper that the machinery of the court should be used. Nevertheless, you have that danger and unless there is some effort made by the Minister to deal with, to minimise the danger, I do not feel I could go along with the kind of approval which Senator Nash has given to this Bill.

I would also, as a lawyer, criticise section 5 of this Bill. It provides that while entry on the land may be an offence, the prosecution will not be required to prove the ownership of the land. Either the State should undertake the entire onus of proving that an offence has been committed or else I think we should not have the offence there at all. Senator Nash will agree with me as a lawyer that the ordinary concept here in matters of criminal law always has been to assume a person's innocence until his guilt has been proved and established beyond reasonable doubt. Here we are asked solemnly in section 5 of this Bill to remove from the prosecution the burden of proof in what is, after all, a vital part of the offence created under this Bill.

When we come to Committee Stage there are very definite points which will require to be discussed in some detail in connection with the definition of "owner". "Owner" under this Bill includes a person having any estate or interest in land. It was correctly argued before that that means that superior interests in land, who have no occupation or no right of occupation under their particular tenure, nevertheless, come within the definition of "owner" as included in the Bill. The Minister made the point in the course of his opening statement and I quote:

I should like to ask the Minister to reflect for a short while on the particular sentence he has used: "This, of course, is complete and utter nonsense." I wonder is it particularly when he goes on to say there is nothing in this Bill which will favour either party at the expense of the other. He goes on to make the case that the position as between landlords and tenants will be exactly the same after the Bill as before it. His justification for that argument lay in section 1 (5) which states:

Nothing in this Act shall be regarded as conferring on any person any right to entry or occupation of land which did not exist immediately before the commencement of this Act.

As long as the definition of "owner" is broad enough, as it is at the moment, to include these superior interests that I have been talking about, at least this distinction is being created. While they may not be given any added right to go into occupation under this Bill, if they go into occupation, even forcible occupation, they will not commit any crime, whereas the ordinary "Joe Soap" who goes in will commit a crime. There is that distinction. I agree that they are not being given any additional right. The entry of such a person, although he has no right to enter, is not being made a crime, as it is for other people. I do not agree entirely with the Minister's view on this matter either.

The last point I should like to comment on concerns section 10 (2) of the Bill which provides that:

This Act shall come into operation on such day as the Minister for Justice appoints by order for that purpose.

I am not trying to be in any way facetious about this. I would be prepared to rely on the Minister for Justice to exercise the authority which is to be given him under that subsection in a responsible way, but we, as Members of this House, also have certain responsibilities to examine the legislation coming before us. It seems to me that under subsection (2) of section 10 it would be open to the Minister to make this legislation retrospective. It would be open to the Minister to decide, as the appointed day for the coming into operation of this Bill, the 1st January last, for example. There is nothing, so far as the Bill is concerned, to prevent him doing that. I do not think he intends doing it. I do not think for a moment that that would be his intention because if he did that, the Act would virtually automatically become in part at least unconstitutional. It is provided in Article 15 of the Constitution that the Oireachtas shall not declare Acts to be an infringement of the law which were not so at the date of their commission. If the Minister were to make this Bill retrospective, as it appears to be open to him to do, straight away the constitutionality of the Act must be called into question. As legislators, we are not entitled with a clear conscience to pass legislation which gives the Minister power to make this Bill retrospective.

This is not a question of not having trust or confidence in the Minister; so far as this particular matter goes, I have every trust and confidence in him that he will not act in the way that I suggest it would be open to him to act. However, that is not enough: If there is a flaw or a gap in the Bill, it is our duty, as a Chamber of revision, to point that out, and to seek to have an adequate amendment made to it. If the Minister would indicate that he is prepared to accept an amendment, or to table one himself, to subsection (2) of section 10, to the effect that this Act will come into operation on such day after its passing as the Minister for Justice may appoint by order, I shall be happy that we have removed the flaw that exists.

I do not say this as a threat, but as a fact. There must be some considerable examination made of this point in Committee discussion. The Minister concluded his speech by expressing his confidence in the measure of support which he might expect for the Bill, but if this particular matter is not dealt with by ministerial amendment, I would, with equal confidence, expect to have the support of Senator Nash and others on the benches opposite in dealing with it in Committee.

Mr. Gallanagh

Níl mórán le rá agam ar an mBille seo ach sílim go bhfuil na focail atá le rá agam an-tábhachtach.

On my way here from Donegal I was stopped on three occasions by the Ulster Defence Regiment and, on all occasions, I was afforded the greatest courtesy, without in any way having to identify myself.

I should like to refer to the Minister's introduction of the Bill and to his magnanimity in the way he introduced it. He said:

He went on to say:

I was able to demonstrate to the Dáil that in using the word "encourages" the Parliamentary draftsman is in the best of company...

He continued to talk about New York and what had been enacted there, but there was no need to go so far, because we can come home very quickly. Here I would refer to section 3 (1) (b) of the Treasonable Offences Act, 1925, which says:

Anyone who assists, encourages, harbours or protects any person engaged or taking part or concerned in any such attempt as aforesaid, or...

I should like to go further and refer now, if I may, to the Public Safety Act, 1927, which provides:

The Executive Council may by order declare any association which in the opinion of the Executive Council—

(a) has amongst its professed objects, or advocates or encourages, or professes to encourage the overthrow by force of the Government of Saorstát Éireann or the alteration by force of the Constitution or the law, or

(d) engages in, promotes, encourages, or advocates any act, enterprise... or

(e) promotes, encourages or advocates the commission of crimes or offences or the obstruction... or

(f) promotes, encourages, or advocates the non-payment of moneys payable to the Central Fund or any other public fund whether by way of taxation or otherwise or the non-payment of local taxation.

Therefore, there seems to be no doubt that there is a precedent for the use of the words "advocates or encourages". They are there for anyone to see in the Acts. I shall not say which Government put them in, but they are there. We do not have to go back to the 1300s, to 1800 or to 1900; we have them in the 1920s.

I look on this legislation, not as Senator John Kelly said in his very able address as emergency legislation, but as protective legislation. Although Senator O'Higgins said that we have introduced three new crimes, we should look upon the fact that daily we are having new diseases and, with new diseases, we must have new remedies. If we are bringing in legislation to prevent new crimes, let us bring it in. It is better to have preventive legislation than legislation that is introduced too late.

I cannot welcome a Bill introduced in these circumstances to deal with a certain situation. But I do not propose to oppose it. I am, as an academic, lost in admiration of my colleague's, Senator Robinson's, analysis of the situation regarding forcible entry from the legal point of view and her citation of Acts going back nearly 600 years dealing with this kind of crime. Listening to her I was struck by one or two points which disturbed me. She mentioned certain cases that had recently been brought in both the British courts and in the American courts. In the British courts these had reached the Court of Appeal and, in the American courts, the Supreme Court.

After 600 years or so of legislation, one would have thought that all these problems would have been so well aired and well looked after by the courts and by the lawyers that a decision could have been reached almost straight away on any particular kind of case. Yet we have to get to the Court of Appeal in one country and to the Supreme Court in another. It must take a while for a case to get through all the stages in a legal argument and up to these heights of legal decision. I wonder if it could be done in much less than a couple of years. I take the simple view of the situation. If I find somebody in unlawful occupation of my house, I do not want to get him out in two years, or even two months, or two weeks; I should like to have him out in two hours, if possible. If this Bill, when it becomes an Act, permits me to do that, then, of course, it is getting us alittle further than if the Bill had not been passed.

Apart from the time situation there is the question of cost. I am well aware that our legal colleagues show great ingenuity in arguing points of law in courts at whatever level and they sometimes take a long time to do this. But somebody must pay them while they are doing it and, while everybody is edified by the academic considerations that they bring before us and before the judges, I think the cost of somebody trying to get a person out of a property of his would, in that way, amount to a considerable sum. If this Bill cuts across this kind of involvement either in time or in money, then I must not oppose it.

I have been very concerned about the arguments adduced regarding section 4. I came here with the intention of opposing section 4 when it came to the Committee Stage of this Bill and I would have wished the Minister in particular to change the word "encourage" for some other word, perhaps "incite", or to leave it out entirely. Since listening to Senator Nash and Senator Gallanagh I am not quite so certain that this word is as objectionable as I thought it was a few hours ago. It does appear to give rise to considerable misgivings in the minds of a large number of people and I cannot accept that all of these are motivated by the kind of approaches that have been imputed to their interest by Senators on the other side of this House. Many of these suggestions were made in good faith and I still have reservations about that word. I should like, if the Minister finds it possible, to change it. It is probably not possible now if he wishes this Bill to go through this Seanad and be finished with. It is still a word which gives me considerable disturbance. I would have to think very carefully about that section when we reach it on the Committee Stage. But, otherwise, I am not going to oppose this Bill.

Mr. Hanafin

After reading the long and varied debates of our learned Debuties in Dáil Éireann, and after listening to some of the arguments presented here today, it seems that it has suddenly become a crime to own or develop property: this, despite Article 43 of the Constitution which, in effect, guarantees the rights of private ownership and the exercise of such rights. I understand from this that the State should take such steps as would be necessary to protect or enforce such rights. However, we hear from the Minister and the Attorney General that the criminal law as it has existed up to now relies completely on statutes dating back to the 14th century and as a result is ineffectual, statutes on foot of which the Attorney General is reluctant to take proceedings. The civil law involves unavoidable delay and considerable expense on the unfortunate owner who is being deprived of his property by forcible entry, an expense which is hardly ever recoverable from the forcible entrant. We have all heard from time to time that possession is nine points of the law; whether this is a legal maxim, or merely a cliché, I cannot say, but the stage has now been reached when it is asinine to support this old point of view. It may well have been a valid approach to the law of property when respect for the law and the sanctity of private ownership was the norm. It is, however, no longer valid in today's era of licence.

The civil law has also been ineffectual and impractical because of possession being nine points of the law and the owner had to proceed against the squatter or forcible entrant on the strength of the owner's own good title, not on the weakness of the title of the invader. So impractical have been the legal remedies that it has become essential and opportune to introduce legislation to support the owner, not merely the possessor. When this legislation is effective ownership and not possession will be the nine points of the law. This proposed legislation is desirable as it serves the good of the normal decent law-abiding citizen who seeks merely the right to live, work and enjoy his property in peace. It is also desirable as a wave of change is spreading not alone over this country but all over the world. Some of the changes are good and some not so good. Constructive criticism has always been welcome in a democratic society and is often invited. Unfortunately, criticism has now become mainly destructive and action even more so.

If new or amended legislation is necessary it is our duty to introduce and support it. We are the guardians of the rights of the Irish people and only through these Houses can changes in legislation come. Changes cannot be made by private individuals or organisations or professional agitators. I, like many Senators here, have had queries and complaints from constituents who are worried by some of the results springing from the obvious lack of respect for the law and who are concerned because proper legislation does not seem to be available to deal with the type of offences specified in this Bill. The people may now be assured that they will have complete protection of their rights. This legislation before the House is both bold and imaginative and introduced by a Government and a party with the courage to meet the challenge of the times and the challengers of law and order. It is, of course, bound to be resented by the intended law-breaker and his supporters. But right-thinking people need have no fear of this legislation. I gladly support this timely legislation that has been given to us by men of vision and intelligence and, not least of all, courage.

Mr. Alexis FitzGerald

I should like to open by saying very positively that in opposing this Bill, as I shall in common with the other members of my party, I oppose it because I am not in favour of forcible entry. I am not in favour of squatting. I am not in favour of fish-ins. I am not in favour of any of these activities, all of which are already illegal and which are not made crimes for the first time by this Bill. They have long been crimes. In opposing this Bill, I should like to say that I have no sympathy with Sinn Féin, with any of its branches or with any of its members. If they commit crimes they should be prosecuted for them. If they conspire to commit crimes they should be prosecuted. If they incite others to commit crimes, even if they fail in their incitement, they should be prosecuted. We have a problem and I have endeavoured to approach this Bill disregarding, if I am not hurting any Member of the other House, largely what has been said there, with a view to seeing what my own view would be if this Bill were presented to me by a fellow Minister in a Cabinet.

There is a problem. Although these are crimes, I think the provisions to deal with the crimes in question are antique—one should be slow to depart from or throw over antiquities—but these antique provisions need improvement.

Business suspended at 6 p.m. and resumed at 7.30 p.m.

Mr. Alexis FitzGerald

I was saying before business was suspended that forcible entry and occupation is already a crime and trespassing is already a criminal offence, at least in respect of certain properties. This is provided for in the Summary Jurisdiction (Ireland) Act, 1851. In mentioning that, I go on to say that, of course, that Act, to deal with the mischief that this Bill is designed to cure, would require to be amended to include houses and vehicles as defined in this Bill and to ensure its applicability to persons under 21 years of age about which there was some doubt in regard to existing law and to strengthen the penalties.

Although I say that forcible entry is already an offence under the common law and by virtue of the statues, there is a point in the view which has been expressed that in our present circumstances, indeed in circumstances which have existed since the foundation of the State, it is difficult successfully to bring proceedings under these Statutes going back to Richard II. There, therefore, was and is justification for a reenactment of the provisions of those Acts and the restatement of the provisions of the common law, an amendment of them and a strengthening of them. To that extent I, not being a student of criminal law in any way and, therefore, no doubt missing many of the subtleties that are obvious to persons who are such, do not find great objection. I go further. I do not find objection to sections 2 and 3 of this Bill except in so far as they are under the shadow of the section to which I do find great objection, that is, section 4.

I take it that while the cleaning up operation designed in sections 2 and 3 is necessary, or something like it, the dominant motive of the Bill is not so much to deal with squatters or persons who make forcible entry or with trespassers—trespassers are or can be persons who are effecting forcible entry—but to deal with those who organise squatters. I wonder is it fair for me to say that it seems odd that lawbreakers who advocate the overthrow of Parliamentary institutions are let go scot free but when they illegally help the homeless they are to be prosecuted.

Having said that, I am really striving to paint a background to a fair consideration of section 4. No law can ever be construed out of the context of the legal situation in which it is enacted and, accordingly, the provisions of the existing statutes, the provisions of the common law, the definition of language which has been effected by judges through six centuries, are all important. You cannot make a proper judgment, a judge cannot make a proper judgment, on legal transactions and the law cannot be properly administered save with regard to the language used.

I know that people who have no training in the law or who have had experience of pedantry in the law— and there are legal pedants—find much of the talk about language irritating. Irritating it may be, but it is a system which the Constitution of our country provides for and it is a system which the judges are sworn to apply and to interpret. The judges are not allowed— I must say having looked at the great mountain of the volume of conversation in the Dáil I think it is some liberation for the judges that they are not so obliged—to look at the proceedings of either House in determining what is the meaning of the Legislature in what it enacts.

In this Bill we are breaking new ground in two or, perhaps, three ways in section 4. The words used with regard to the offence under section 4 are "encourages" or "advocates". I think a judge would be bound to have regard to the existing law and to conclude, or at least be entitled to conclude, that these words embrace, and were intended by the Legislature to embrace, activities other than those envisaged under the existing code. I shall deal later with the appearance of these words in quite different types of statutes. Let me leave these statutes aside for the moment and say that I found no definition of either of these words in the Standard Judicial Dictionary of Stroud, Third Edition.

I understand, but cannot identify where he used them, that the Minister stated that the word means "to incite". Because of the alternative "or" this must mean that each word independently is equal to "incite". I have difficulty in understanding how two words which would not seem to have received legal definition can mean identically the same as one well defined legal word "incite". It seems to me that we are adding here another crime to the crimes that are regarded as essentially preliminary to the completion of another crime. An attempt to commit a crime is a crime; incitement to commit a crime is a crime; conspiracy to commit a crime is a crime, even if the ultimate crime is never committed.

The sense of "incitement" according to the 18th Edition of Kenny's Criminal Law is fully performed even though the person inciting it immediately repudiates the suggested deed. A conspiracy is committed although the conspirators have not yet moved to execute their purposed crime. "Incitement" is defined as being "to solicit, counsel or procure". Kenny in his book does not use the words "encourage" or "advocate". Neither do Smith and Hogan in their book, 1965 Edition; neither do Cross and Jones in their book, the Sixth Edition; not are they to be found in Simmonds, Third Edition, nor, as I have already said, in Stroud. So far as I have been able to ascertain, neither can they be found in any English statute which our draftsmen are so found of imitating.

One must attach significance to the fact that these words have been chosen to be used in this case. One must regard them as being intended to enlarge the normal legal meaning of "incitement". In everyday use, when you use the word "encourage" you never use it as an alternative to "incite". "Incite" involves something positive. "Encouragement" may be negative. Saint Thomas Aquinas did a frightful lot of encouragement in his day of the sort of crime which was legislated against in the time of Richard the Second when he pointed out that no man has a right to property in excess of his needs according to his station in life. For example, a person may point out in an article that houses suitable for human habitation are lying vacant side by side while there are homeless families nearby, but the writer of the article and those associated with him may be held to be encouraging people to commit offences under sections 2 and 3 of the Bill.

The Minister has said he does not intend to catch the national newspapers under these sections. That may be an acceptable statement of present policy but once this Bill is enacted, if this Bill be enacted without change, there will be no control over the future enforcement of it. We may have the ludicrous position resulting from this Bill that you may be guilty of the statutory offence of encouragement or advocacy but may not be guilty of an offence if you encourage or advocate other crimes such as larceny, embezzlement, bigamy or criminal libel.

During the day Senators on the other side of the House who did their homework on this Bill pointed out that the words to which I have referred have already been used in statutes enacted by this Parliament. In one Act the two words are used together and in another only one of the words is used. Let us have a look at the statutes in which these words were used. Let us see the relevancy of the quotations of the Senators.

The Treasonable Offences Act, 1925, section 3 (1), was designed to deal with certain offences against the State but not the offence of breaking into an unoccupied house and placing in it a homeless family. It was designed to deal with the offence of attempting, taking part or being concerned in an attempt by force of arms or other violent means to intimidate the Executive, the Oireachtas, the judges and so on. It caught within the net, as it should catch within the net anybody who would encourage—that is to say anybody who would inspire with courage, animation, inspirit or embolden—or be concerned with the committal of such an offence.

Learned Senators have drawn helpfully the attention of the House to the fact that these words appear again in section 4 of the Public Safety Act, 1927. Let us look at the context in which they appear in that Act. Section 4 of the Public Safety Act provides for the declaration by the Executive of the time that an association was an unlawful association and was caught within the conditions which would entitle the Executive to declare that persons who advocated or encouraged the overthrow by force of the Government or the alteration by force of the Constitution or the law, or the encouragement or advocacy of treasonable or seditious acts, or the commission of crimes or offences for the obstruction of or interference with the administration of justice, to be committing an offence under that section. If persons were in this menage, if persons did get themselves into this position, if persons did so associate with such objects in mind, they run themselves into the danger of finding themselves, as members of these associations, convicted as persons who encouraged or advocated the performance of such acts, and are liable to be found to be members of an illegal organisation.

That is an entirely different context to the context we are considering here. The mischief we are here to deal with is the mischief caused by insufficient housing for our citizens. Is it questioned that housing is insufficient? I should have thought it would be the concern of every Member of this House to remedy an existing and admitted defect.

Mr. E. Ryan

By illegal actions?

Mr. Alexis FitzGerald

It seems to me to be possible to argue, as I am doing, with inadequate knowledge of the matters involved or the background of law involved, that the Legislature is being invited to enact an addition to those preliminary crimes which will exist where persons encourage or advocate, even though they may not incite, the commission of an offence. I should certainly like to hear the Minister tell me how the word "incite", which is not found to include "encourage" or "advocate" in any of the recognised textbooks on the matter, has become a new crime. Why is the word "incitement" as well defined in recognised textbooks, not sufficient?

Mr. Gallanagh

Why do they have new diseases?

Mr. Alexis FitzGerald

Why does the Senator not keep quiet? Section 4 (3) deals with a new concept, so far as I know, to our law: that is guilt by association. Under this subsection there is introduced a concept utterly foreign to our law. If this Bill is enacted and becomes law, a person may be found guilty of an offence whose mind has never been brought to bear on the matter in question, who has not conspired with anyone else, who has not incited anyone else or striven to reach the mind of anyone else which could still be incitement although he failed to reach that mind, merely because of his membership of a group, which is not defined, who issue a statement encouraging or advocating an offence under the Bill.

We are all in this House members of different groups and we all, from time to time, find ourselves reading something which was said on our behalf by some half-crazed secretaries which we do not approve of. We may be members of an association and maybe the secretary is encouraging or advocating, but we have yet to receive a definition of those words even though they have appeared in the Public Safety Act, 1927. It may be that what the secretary says would be a recommendation of an offence under this Bill. This quite obviously seems to mean that in relation to persons who may be entirely innocent of any offence, merely because of their membership and because of their consent, which it is proposed in section 4 (3) is to receive a still more extended definition, "consent" now arises in these circumstances:

( ) In a prosecution of a person (in this subsection referred to as the defendant) as a member of a group for an offence under subsection (1) of this section in relation to a statement made by or on behalf of the group, if, having regard to all the circumstances (including the constitution and rules, if any, of the group, and the extent to which the defendant had participated in the activities of the group), the court thinks it reasonable to do so, it may regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the part of the defendant in the absence of any adequate explanation by him.

You may say that the person should be, if he is a member of an association, in a position to give adequate explanation. It is very difficult. He may not have access to all the material. He may have been thought to be present at the meeting in question. He may find difficulty in proving he was not. He would have to do all this in court as a defendant, as an accused person.

Let us face the reality of life. To be charged with a criminal offence, even if found innocent is almost as damaging as being found guilty. It must be well known to the Minister that Judge Adams once said: "You leave this court with no other stain on your character than that you have been found not guilty by a Limerick jury."

I should like now to refer to section 9. In certain circumstances under this section a person who remains in forcible occupation of land may be arrested without warrant. I am stating it loosely and not in its full terms. Squatting is not a problems at this side of the Irish Sea only. In Britain instead of creating an extension to the scope of the criminal law to deal with the same problem, steps have been taken to improve the machinery on the civil side, to facilitate the service of certain court orders and their implementation. Let it be admitted without doubt that present Irish procedures with regard to the appropriate remedies in certain cases are cumbersome and ineffective. Instead of giving the Garda extraordinary powers which are readily open to abuse, the Minister should have been concerned to improve the machinery of the civil courts to enable the owners of property to protect their legitimate rights.

What if our Garda, overtaxed and overstreched as they are, unable as they are to curb flagrant breaches of the existing criminal law which occur daily, are unable to enforce this Act? What then is to be the position of the property owner deprived of his rights? His civil position remains unimproved. His remedies are no greater, and where there could have been a simple improvement to put him in a position where he could get an injunction and get it effectively enforced on persons whose names he did not know, he is now to be left with the embarrassment of seeking the assistance of our overtaxed police force to enforce rights on his behalf.

I have already indicated that there are parts of this Bill I do not oppose. But an error of judgment has been made with regard to section 9, and I think section 4 is abominable. I recognise that squatting is not merely a symptom of a disease, as a learned priest has described it. It is to some extent a symptom of a disease, but if so it is a catching disease like kindnapping or hijacking. Certain squatting leads to other squatting and I therefore think there is a mischief to be cured and to that extend I would approve certain provisions in this. But because of the provisions of section 4 I must not merely oppose section 4 but I must oppose the entire Bill.

Mr. Keery

I should like to move on from some of the points raised by Senator Alexis FitzGerald. I should like to begin by talking about the basic point he made at one stage when he described this Bill as intending to meet a mischief caused by a shortage of houses. I should like to raise a question mark against that statement. Certainly it is quite true and is something I have spoken very strongly about in this House that there is a shortage of housing, particularly in the city of Dublin. It is a shortage which is so urgent that it should be attacked with all the power of Government action. That is something which I have argued for myself. But it is a mistake to say that it is this shortage of housing which has led to the need for this Bill. We should look at the incidents and, rather than talking in academic hypothetical terms about what exactly is a squat or a fish-in or whatever it may be, we should look at some of the actual incidents which have led to the need for this legislation. It would seem to me that if one does this one can see that the—I would argue—rare cases in which squatting by those genuinely in desperate need of housing are concerned are extremely small, and are cases which it is unlikely would have to be dealt with under this legislation.

On this point—and I know it is a constant argument by the Opposition— I should like to say that some of the legislative measures which we discuss in this House are inadequate because whatever about present Ministers, future Ministers may interpret the legislation in a completely different way.

Professor Kelly

Naturally, it is a constant argument.

Mr. Keery

I suggest that just as they propose the hypothesis that future Ministers may possibly be insane, so also many of their arguments rest on the assumption that in the future the community collectively will go insane, or the Garda collectively will go insane. You cannot have your cake and eat it. If we are talking about the administration of law by members of Government in a normal context, or when one is citing examples and trying to envisage the working of the law, in the same way one must base one's hypothesis about the likely action of Garda and the members of the public.

Professor Kelly

Why bother having law at all when you are going to declare an act of faith in everybody?

Mr. Keery

I accept that point but I would hope that everyone in this House would agree that one has to try to form legislation within some kind of realistic context. Although I know that Opposition Members, to give them their credit, try to put forward amendments which they hope would cope with all possible insane situations, I should argue that in many cases this academic exercise of endeavouring to produce legislation which would deal with all possible insane situations is rather an Alice-in-Wonderland type exercise. In many cases I should argue that it is probably impossible. Many of the hard cases which are presented and dealt with are the kind that, if they lead to a court case under this Bill, the justices, police or local authority, acting in a rational way, will see that the facts of each specific case are dealt with in a fair way. Nothing in this legislation at all will affect the position of people who are not law-breakers, but are people who in all innocence or in great extremity, have found themselves as law-breakers. I am quite certain that all these forces whether Government, police, courts, or local authorities, acting in a rational way, will see—as is the situation at present— that justice will out and, by and large, our present pattern of legal and judicial processes are not affected in any way by the provisions of this Bill.

I should like to mention some of the situations which I consider make this Bill a matter of some importance and which are not caused by a shortage of houses. In this connection, I shall refer to squatting, albeit squatting in the name of a housing shortage, which is made a political issue by political or quasi-political organisations. Great play has been made about the role of democratic protest in our society. There is considerable feeling in some quarters that this Bill is aimed specifically at eliminating what some people call a legitimate form of democratic protest.

I do not consider this to be the case. Many of the people who argue the case are speaking in terms with which I am normally sympathetic, and which go back to the old days—the twenties and the thirties—when we tended to follow British patterns in legislation. Even when we are talking politics we often think of various political disputes and protests in Britain that often tend to be the background of political education, although there are good examples at home also. When people are talking about democratic rights, they are often talking in what one would call the liberal tradition of protest and female emancipation, and so on. During those days, in order to make a protest democratic and to make an impact it had to have force of numbers behind it. There was no television; there was not the same communication through the newspapers, through television or otherwise, to really make an impact through a protest. For a protest to become really democratic in the sense of being an obvious expression of need in the community, it had to be backed by numbers, and it had to have a large widespread organisation.

Such is not the case at all today. There is a lot of truth in the phrase "rent-a-crowd". That is the idea that you can make your protest by calling in a couple of professionals, with their placards and their little band, and if you have tipped off the television and newspaper media in advance, literally your "democratic" protest, this great popular movement, can consist of half a dozen people, with half a dozen placards, walking around in a circle outside a building for five minutes, while they are filmed. That appears on television as the great democratic process. You cannot blame them. Thousands of people, sitting in their homes, think this must be a great protest if it has been covered on television in this way. Looking at those people with their placards, they get the impression that they must feel very strongly about their problem. It can be a completely artificial situation.

It is in exactly this way that the housing squats, the fish-ins, and so on, are organised specifically. I know of one case of a family of summer squatters. During the summer in a seaside area, when there was an opportunity of letting their house and of making some money, they became squatters. Their name and the position of their squatting was used by a quasi-political organisation. All this happened at the inconvenience of a private individual who happened to have a house empty while it was being decorated for reletting. This is the sort of rediculous situation that can arise against which people must be protected. It is the sort of artificial incident that, if used in the political way that I have described, may be made appear to newspaper readers, television watchers, or to the public at large, as something big or important, or as part of some massive social ill. This is something that, before one jumps in to defend the right of democratic process, one must assess what in this time, when there are such unusual opportunities of publicity, what is a real genuine democratic process. That is a question which many of the people who have jumped in to raise doubts about some sections of this Bill have not asked themselves.

I sympathise with the deep feeling many people have about the nature of the family and the need to keep families together and the particular emotion behind the housing problem. Again, I would say that people should not let their genuine emotion and feeling for such families lead them into the immediate assumption that most of the squatting is genuine and that most of the problems are genuine. May I, again, give a concrete example with which I am familiar of how quasi-political organisations are so ready to hand in the case of a housing problem and how in many cases, though they argue that they often intervene to help house families, all too readily they hinder the official processes for dealing with necessitous cases for rehousing? I am much reminded of this by what was for me one of the most traumatic evenings I have had since I became involved in this business as a member of the Parliamentary assembly with an interest in constituency problems of trying to help specific housing cases.

One night I discovered a family who had been evicted by bailiffs and I drove around with that family in my car— the husband had been arrested for his resistance to the bailiffs—endeavouring to have them rehoused. It was a frightening experience to find no orphanage prepared to take the children for the night. Again, working through these charitable organisations—and I make no criticism of them at all— I found that the enormity of the rehousing work is tragic and they simply had no room at their inn that particular evening. Eventually, this unfortunate mother and three children were taken for the night by some relatives on the far side of the city whose housing problem was already abominable.

When I went back to the police station to report where the family had been housed in the short term, I was told: "Oh, the housing action committee came about 20 minutes after you had left with the family and when they heard you were dealing with the matter they went away." I would suggest that in that particular case, judging from the activities of the housing action committee in the area with which I am familiar, that particular family would have been placed in some empty house in the area by them. It is important then to look at the subsequent history of this unfortunate family.

On the night when I first found they needed assistance the mother refused to go to Griffith Barracks. I think it should be stressed that every health authority has responsibility to rehouse homeless people who are in genuine need because they do not wish to be split up. Difficulties ensued some weeks later with the family, in the appalling circumstances in which they were with the relatives who had taken them in, and they were once again on the street. I had a telephone call late at night saying they were prepared to consider going to Griffith Barracks. I am glad to say that just by a phone call this culod be arranged and they were admitted to the barracks.

I am not saying that. I am saying that that particular family had been two years and nine months on a housing list but because they were not within the residential time in Dún Laoghaire Borough they could not be rehoused even though they had been evicted and not for non-payment of rent.

From Griffith Barracks, where they were taken, they were rehoused by Dublin Corporation. In my view had that family come under the wing of a housing action committee and been placed anywhere as squatters, they would not have been rehoused by a housing authority in the way they were by due administrative process and by the ordinary workings of the emergency machinery and the housing machinery. This is the point I wish to make and the example I am giving. In my view a lot of sympathy is unjustifiably directed towards the work of housing action committees. They seem to have some success by using ordinary administrative machinery in the same way as a parliamentarian or any one of us here. There are many cases where they act in a way which is not in the interests of the families they purport to serve. In the same way I argued that there are other cases which are not genuine housing cases but which are exploited in a political way.

I should like to make another point which underlines the inadequacy of the present legal situation, an inadequacy which is recognised by the housing action groups. It seems the situation now, in at least one area of this city, is that whenever a housing action committee place a family illegally in private property they go to the local police station and advise the police that they are putting a family into such and such a house. This may give the matter a guise of legality or it may be an attempt to give themselves a bright image, but it is an entirely phoney exercise and one which is only possible because they know of the difficulties of the existing law. In this I am fully behind Senator Jessop, who spoke on this earlier this evening. In many view it is no good at all saying that the existing law is adequate in this matter and the procedures are there for private householders to use. The procedure takes time and money and as far as I can see from the occasional cases in the paper it is no easy matter for a citizen whose premises have been squatted in to carry through the case before the courts because of all the technicalities that are likely to arise. I am of the same view as Senator Jessop in that in any situation where a private house is occupied the quick procedure envisaged under this Bill is the protection to which the people are entitled. I do not think this type of quick procedure is a procedure which will in any way fit the genuine cases. In regard to the really desperate housing case, the sort of case about which the Simon Community have expressed concern as this Bill was going through the other House—the case of the loner who sleeps rough, and the best of luck to him, who has opted out of a particular type of society and who goes his own way living in a different place each night—I do not foresee that sort of hardy individual or the really genuine housing case being affected by the type of quick legal action which will be introduced by this Bill.

Some of the reasons I have already mentioned. The loner, the man who may be in touch with the Simon Community is quite free under this Bill to simply say: "Good evening, guard. Certainly I will move on tonight" and get up from wherever he is rolled in his blanket and move on for that particular evening. That is the only inconvenience he is likely to suffer under this Bill. Because our police are not insane, our health authorities are not insane, because the actual machinery is there to assist desperate housing cases and to deal with them in a way which is as adequate as the desperate business of squatting, I would envisage that in the normal, rational, human way that type of machinery will come into action and one will not see that sort of case being dealt with under this Bill.

I have probably dealt as far as I need with the actual points made in this Bill where it is suggested that this is something to deal with the mischief caused by a housing shortage. I have dealt with that red herring to quite an extent. That suggestion is a red herring because it conveniently ignores, the squat-ins, sit-ins et cetera in the offices of railways and airlines and in aeroplanes. That is another example of a mischief which should be dealt with for reasons I have already referred to, because it is that type of squat-in for a couple of hours in the headquarters of this, that or the other, which by appropriate television or newspaper coverage gets the publicity and to hell with the inconvenience to the people concerned.

That is not democratic in essence. It represents nothing. The people who have been affected by this type of inconvenience or invasion of their property will welcome the protection they will get under this Bill. One of the unfortunate things about a great deal of the publicity that can attach to that particular type of sit-in is that if the organisations or headquarters which are sat in happen to belong to international organisations or are owned by some overseas company, it attracts massive publicity in the media in the particular country concerned—again, I would argue, publicity that is completely out of proportion to the alleged injustice that the people who are staging the sit-in are trying to deal with. It is given extremely adverse publicity and creating an image of the country which does not tally with the actual state of affairs here. This is the sort of situation that this Bill may help to deal with.

I touched on this point obliquely and much of what I had to say has been in a context of publicity of one kind or another through radio or television. This raises the point which has been referred to by many Senators—the problem which the National Union of Journalists, Dublin Branch, have circulated to Senators. They see in section 4 of this Bill a threat to some of the ordinary activities of journalists in investigating, reporting, photographing et cetera events hitherto legitimate. When I received this circular from the Dublin Branch of the National Union of Journalists, I felt it would be helpful to learn from the journalists themselves rather than from the Members of the other House in the course of the debate on this Bill there—I had no idea how well or ill they might be informed— what specific cases they had in mind that they considered would be interfered with under this Bill. I wrote to the Dublin branch on the 15th July in regard to this matter asking them for specific examples of how the Bill would affect their ordinary activities. I regret to say that to date I have had no reply, so I am not in a position to give the House any specific examples from journalists. I did, however, see and hear the Editors of the three Dublin dailies on Seven Days talking about this particular difficulty. One Editor did venture a specific example of a situation in which he felt he might have acted in a way which, should this Bill be enacted, would have become an offence. That was with regard to the occupation of some houses in Hume Street, the famous occasion when they were occupied by people who were anxious to preserve that Georgian streetscape. In writing a leading article the Editor felt, in retrospect, he might well have committed an offence under this Bill should it be enacted. This is just the one example which comes to mind. It seems to me to be exactly parallel to the sort of situation which arises under libel laws as they are at the moment where journalists are concerned. Journalists must constantly be aware of this problem, particularly when dealing with the case of individuals who may be involved in some doubtful behaviour. They must be constantly aware of hedging the thing with an “if” here or a “but” there or “it seems to me” or “it appears” and so on.

I am open to hear other specific examples in the course of this debate, but if there is any infringement of any existing journalistic freedom under this Bill the most it could be is that in some leaders editors may, from time to time, have to put in an additional "if" or "it seems". It is not at all the cause celébre into which it seems to have developed in the course of the debate in the other House.

On this point, may I say that I have a genuine regret that in discussing the matter—and any matter of the freedom of the Press is a matter of great importance—we are still discussing it in the way in which it was discussed in the other House and that we still have not got in this country a Press council which could examine matters of this kind. It seems to me, certainly in Britain, that this is just the sort of case that would have been examined immediately by a Presscouncil, representative of the community at large, by journalists themselves, editors and reporters alike. They would have examined the legislation in detail, made an independent assessment of the matter and made their report available to the public and to the legislators concerned.

Professor Kelly

Their opposition could not be more united than it is even without a Press council. Every paper in the country and every journalist in the country is against this Bill and the Senator knows it very well.

Mr. Keery

I certainly understand that there have been many editorials written about this but on the evidence to date I am by no means satisfied that a specific examination has been made of actual cases which are likely to arise in a matter of this kind. May I say also that, just as Members on the other side have been anxious to make the point that, although they object to sections of this Bill, they believe in private property for example, so may I say that when I have spoken about matters involving the Press and attempts have been made to construe what I have been saying as an attack on the Press or an attempt to interfere with the freedom of the Press, I am very strongly of the view that the freedom of the Press must be protected and that it is best protected by a Press council rather than that it should become the political plaything that it tends to be at the moment. I would like to quote on this point some wisdom from the Guardian Weekly, of 7th August, 1971. This is relevant to the point that Senator Kelly has asked me about. It is a very apt quotation that it behoves editors and politicians to bear in mind. It reads:

In a sense the question of whether Press comment influences public opinion or not is irrelevant. Events tend to show that the Press does not by itself destroy a politician or significantly damage him. Nor should it. However responsible and informed, Press criticism, like Press reporting, is by its nature ephemeral. It catches a current mood and reflects a current trend. Politicians in Britain at any rate destroy themselves by waywardness or incompetence, and it is the parties and the electorate in the longer term rather than the Press in the shorter term who decide their fate. The Press records the rise and fall of politicians and comments from within the political arena on the reasons for their successes or failures as they appear day by day, week by week. A politician who ignores the Press blindfolds himself and may not sense the road to self-destruction. A politician who courts the Press mistakes its purpose. Egotism whatever form it takes is a risky vice.

There is wisdom there for politicians who have made so much of the Press issue in discussing this Bill. Certainly it sums up my view of the position of the Press in matters political.

Professor Kelly

Mr. Wilson would not agree with your view, if we are going to stick to English parallels.

Mr. Boland

Especially the bit about catching current trends and current opinions.

Mr. Keery

I am glad the Senators have found it edifying. May I move on just a little bit from that point and try my hand at criticising some of the points raised by other Senators. This is something which I find of great interest, particularly where my colleague Senator Robinson is concerned. Naturally as someone who is not a lawyer I am always interested in trying my amateur sense of legality in opposition to some of the points which she makes with the weight of a professorship in law behind her. Both in some of the articles which she quoted extensively in the House today and in some of what she said which was not in those articles, in my view she deceived the House in a number of ways and her reasoning in many cases was defective.

I do not wish to enter into dialogue with the Senator. I thought Senator FitzGerald's amendment, which prevented ordinary social callers to houses being picked up as squatters, was useful.

I think some of the examples Senator Robinson gave in trying to apply British examples to our situation in Dublin were completely irrelevant. She tended to talk as if the informal arrangements made between London housing authorities and squatters had some kind of parallel here and that if only we had that type of informal arrangement we would avoid the sort of difficulties we are dealing with here. As I understand the matter that is not at all the case, because the areas in which these informal agreements are being made in London between squatters and local authorities are areas where either whole sections of a borough are being cleared for redevelopment or rebuilding, or where housing is being acquired by the local authority in advance of the construction of a motorway or something of this kind.

This means that the houses, while they are certainly the property of the local authority, are not local authority houses for use by tenants in the normal way in which we talk about local authority houses. They are houses available to the local authority which will be empty and not used for housing purposes in the near future, but which in the long term will be cleared for use for whatever purpose it may be. It is solely because of that situation that it is possible for this type of informal arrangement to be made with squatters' associations. It is a completely different situation to squatting in local authority houses as we know it.

Senator Robinson quoted from her two articles in The Irish Times of 14th and 15th July for the record of the House. In these articles it seems that there are cases where emotional feeling was high. For example, she expressed in her first article the feeling that the Bill before us throws the dangerous weight of the criminal law behind speculators who prefer to keep their property empty and wait for the price to rise. She then went on to describe how at present the weight of the criminal law is behind the property speculators, as she put it. This criminal law which she quoted from legislation of 1381 onwards might well result in more severe penalties than are envisaged under the present legislation. From the quotations she gave from the Forcible Entry Act of 1381 it seems that imprisonment was mandatory for a person convicted of an offence under such legislation.

The point she made that this Bill was introducing the criminal law into a situation which up to this had been dealt with by civil law was completely irrelevant. The criminal law is already there, as she said, and also the civil procedures are left untouched by the present law. This was a point about which she complained and I think the inconsistency was there. I could go on to labour some of these points in criticism of many of the arguments put forward. I have tried to show how some of the major issues raised by Senators in criticising this Bill have either been non-issues or red herrings. I hope that in trying to point this out it may reduce somewhat the length of the discussion.

Professor Quinlan

I wish to make just a few brief comments on the Bill before us. I agree very much with Senator Alexis FitzGerald in regard to the necessity for sections 2 and 3. None of us will stand for the forcible entry or occupation of buildings. In that way much of what is in the Minister's opening speech is something we can all endorse. There is a very large measure of agreement on this. It is a pity that so much controversy should have blown up over this. This controversy has blown up over section 4 which can give rise to legitimate doubts. Looking at it as a non-legal man, but as one who has been very much enlightened by the many excellent legal contributions we had during the day, it seems that in section 4 the words "to encourage and advocate" are extraordinary. To my mind "encouraging" would seem to be a far less direct involvement than "advocating" the commission of an offence under this Bill. It would seem that the newspapers have a legitimate point that, by publishing pictures of an occupation like the Hume Street buildings and by giving coverage to it, in many ways they could be regarded as encouraging those committing the crime. You could not hold that they were advocating it unless their language was of a different type altogether. In other words, there is a legitimate doubt raised there that has been common in much of our legislation in recent times. We are told that no reasonable Minister or no reasonable interpretation of this Bill would stretch it that far, but we are legislating here not for today or tomorrow but perhaps for 20 or 30 years' time. In fact, if we take the examples quoted by Senator Robinson we realise that cases are actually proceeding and verdicts obtained based on statutes going back to the year 1300. It is not at all farfetched to assume that there will be actions under this statute in 50 or 100 years' time.

Consequently, it is of the greatest importance that we should put into the statute precisely what we mean. The Minister says that the words "encourages or advocates" mean the same to him as the word "incites". As a non-legal man that seems to me to be extraordinary. To me those words build up in importance by degrees. If the Minister genuinely holds that view he should accede to the request to remove the words "encourages or advocates" and insert the word "incites" instead. We would all be happy if he did this. The word "incite" could not be taken to apply to the newspaper example I have given, where it is a case of publicity encouraging the commission of an offence. It certainly could not be taken to have incited people without some of the words used in the description "being held to incite".

We here in Seanad Éireann have had an excellent debate on this Bill. It was a debate which was very well conducted and very well argued on both sides. There were some excellent legal contributions from both sides and, indeed, all the contributions made here have added to the high level of the debate. That all adds up to the fact that we, in Seanad Éireann, are a small compact body of 60 Members—today we had 20 or 30 Members present—that we function almost like a committee and, therefore, I think we should see in the storm that has been aroused by this measure the break-up of the old 19th century Parliamentary system under which we have been operating for so long. This type of inflexible institution whereby the Minister's officials cannot communicate directly with us but can only pass notes to the Minister, who cannot answer as points are made on Second Reading as distinct from the Committee Stage, has, to my mind, become outdated and needs to be reformed even more than our statutes.

In this regard we should take a look at the Common Market countries. We are already making advance preparations for our entry into the Common Market and, it seems to me, the present difficulty could have been avoided if we had taken a look at the Dutch Parliamentary system. Under that system we would have here a justice guide committee attached to the Oireachtas. The various parties would be represented on that committee by members who have a real interest in justice and who have been making a study of it.

Acting Chairman (Mr. E. Ryan)

The Senator is straying from the terms of the Bill.

Professor Quinlan

I crave the Chair's indulgence until I finish the point.

Acting Chairman

Very quickly, then.

Professor Quinlan

Such a committee would have a continuing interest in what was happening in the legal field and in matters such as the squatting problem. They would come up with suggestions such as: "We need to do something about the existing law. It is not quite capable of dealing with squatting as it has developed in recent times." They would inform the Minister for Justice of this fact. Indeed, the initiative might well come from the Minister for Justice who might tell the committee that he was contemplating doing something about the squatting problem. They could then get to work on it, forward their suggestions to the Minister and his advisers and perhaps have a joint meeting before the Minister finally committed his opinion to the statutes. The statues would then go through Parliament just as this Bill has done.

If that had been done in the present case all this disagreement about the interpretation of section 4 and so on would have been ironed out and section 4 would reflect more fully and more accurately what is really required to deal with the squatting problem. I suggest that we should learn a lesson for the future from the difficulties we have encountered with this Bill. Modernisation of our Parliamentary institutions for our entry into the EEC should be of vital interest to all of us.

The Seanad debate on this Bill has reflected credit on all of us. We seem to have got over the very rough and unseemly exchanges we had at the start of yesterday's meeting. We are very thankful that the Seanad debate on this Bill has not taken the turn that many of us feared it might take yesterday. We have much to be thankful for in the way the debate was conducted. I would appeal to the Minister, even at this late stage, to meet the challenge at the Committee Stage. Let us be guided by the helpful advice of the legal experts that we are proud to have in Seanad Éireann on both sides. Nothing but good can come of it if the Minister shows his magnanimity by taking that line. If he does so, I am sure we will all feel a great deal has been achieved.

It is a pity this Bill was not originally introduced in the Seanad because if it had got the type of examination it has received today it could have been greatly improved earlier on. I hope it is not too late to do so now and that the Minister does not feel that he must persist in a very entrenched position. It would not in any way take from the stature of the Minister if he were to admit that, as a legal mind himself, at this stage of his development, he could not rank with some of the legal luminaries we have in the Seanad. If he adopts this course he will display his wisdom and his suitability for his present post. I do not intend to vote on the Bill at this stage but I hope on Committee Stage to try to help in getting section 4 to reflect more what the Minister has in mind and what we would all accept as being required.

Furthermore, in section 4 there is this question of a group. Again, that to me seems very vague and would require some definition. Otherwise it leaves it wide open to ask what is a group. With the care that has been taken in this Bill in the definition of words like "forcible", "land", "owner", "vehicle" and so on, it is extraordinary that no effort was made to define "group". I would appeal to the Minister to do something about it between this and Committee Stage. It seems an extraordinary word to introduce into the legislation.

Mícheál Cranitch

Ar an gcéad dul síos, ba mhaith liom traoslú leis an Aire as ucht na óráide a rinne sé anocht. Is mó óráid bhreágh a chualamar sa dTeach seo ach ní dóigh liom gur chuala mé riamh óráid ab fhearr ná an óráid a rinne an tAire Dlí agus Cirt anocht. B'fhéidir gurb í sin an chúis go raibh caighdeánna díospóireachta inniu chomh h-iontach sin.

What a difference between the standard of the debate in this House today and the standard in the other House. I have read the Dáil reports. I see here and there throughout the House stacks of volumes and I suppose most of us tried to read through some of the many things that were said— wise and foolish, mostly foolish. All a charitably disposed person could say is that they were not—to say the least of them—ad rem. Many of us who are not so charitably minded might be inclined to say—and certainly what the public of Ireland have said—just one word—“Baloney”.

There was so much irrelevance in many of these debates that many of the people I have been speaking to throughout the country asked: "Could you do anything up there in Dublin to make these fellows belt up and get ahead with the business?" Maybe the Minister's speech this morning did quite enough to dispel any doubt in anybody's mind. I certainly enjoyed the debate today. I missed very little of it. The standard was very high and, indeed, being present here all through today was very rewarding.

I wish to make this point immediately. The question of squatting has been mentioned numerous times today. In case anybody gets the impression that squatting is the only thing to be dealt with in this Bill, I would draw everyone's attention to the beginning of the Minister's opening speech, if they do not wish to go in detail through the Bill itself, where they will see that apart from actual squatting the following items are mentioned:

... the arbitrary seizure of buildings occupied by Government Departments, with the consequent disruption of public business ...

... the taking over of commercial offices belonging to overseas airlines and shipping companies, to the considerable inconvenience of tourists and other travellers...

... We have also had the unauthorised boarding and occupation of a commercial airliner at Shannon Airport...

That actually has taken place. There was a time when we thought that such a thing could not happen here in Ireland but it has happened. There is the possibility—possibly more than a possibility—that this could happen again if legislation such as that at present before the House at the moment is not enacted. We also have the question of "fish-ins".

Someone made the point earlier on that the Minister created three new types of crime. But he has created nothing of the kind. One does not create those things; they are there all the time. Before this Bill, before any laws at all were made, it was not justifiable to do any of these things in any form. They were wrong by the law of God and by the moral law. They were not permissible. The difficulty was that the law proved difficult to invoke because of the fact that the legislators who framed these laws down through the centuries could not possibly visualise the extraordinary activity of the human mind in the 20th century as far as creating new mischief is concerned.

However, the debate today was of a very high standard and our congratulations to everybody who contributed to it. It was done in a very constructive way and it redounds to the credit of every Senator who spoke. It was the high standard of debate that we are capable of in the Seanad when we concentrate on the business before us. I was cruelly disappointed yesterday morning at the preliminary canter. It turned out to be very unseemly. I was disappointed this morning also at the second preliminary canter but, thanks be to God, all that passed off and, as the man said, whatever we were doing or whatever the purpose was we had a very fine morning for it.

If we look at the Bill for a moment the first thing we see is the Long Title—"An Act to prohibit forcible entry and occupation of property and to provide for related matters." Certainly, the phrase "forcible entry and occupation" strikes a chord in every Irishman's heart because the plantations that have taken place in our country, beginning with the plantation of Laoighis and Ua bhFáilghe in the 16th century were probably the greatest and the most cruel form of forcible entry and occupation in the history of the world. An attempt was made earlier today, maybe inadvertently, I do not know, to link the passage of this Bill through the Oireachtas with events in the north. The way in which that point of view was presented was, indeed, hurtful to every one on this side of the House. Maybe it was not done advertently but, indeed, there is a connection between at least part of the Title of this Bill and events in the north because if this forcible entry and occupation in our northern province had not taken place early in the 17th century we would not have the Partition of our country and the terrible things that are happening in the north at this very time.

As far as the Twenty-six counties are concerned we have at the moment a Government who are prepared to assert the rights of people who hold private property. This is the most significant thing about this Bill. It puts beyond all doubt that in this age of protest, when many of the standards we have always been used to are being questioned, we have a Government that will stand by what is right, the traditional and the moral right under the law of God and the law of the land for a person to hold and to be allowed to enjoy his own house, home and property. Section 1 defines the words "forcibly", "owner" and "vehicle". Many people seem to have found fault with the Bill. As far as legal terms are concerned, I found it very easy to read.

Section 2 says:

A person who forcibly enters land or a vehicle shall be guilty of an offence unless——

Then there are certain circumstances under which a person would be allowed to do this and they are all quite reasonable. They are very easy to read and quite easy to understand. I do not see any difficulty in it.

Section 3 reads:

A person who remains in forcible occupation of land or a vehicle shall be guilty of an offence unless——

There we have the extenuating circumstances again and they are all quite reasonable.

Section 4, the one which appears to have caused most of the hubbub, is, in my opinion, quite reasonable too:

A person who encourages or advocates the commission of an offence under section 2 or 3 of this Act shall be guilty of an offence.

Of course, he would be guilty of an offence. The reactions in certain sections of the Press and the fulminations of Deputies in the other House were most alarming. During the course of the debate in the other House practically everything from the writers of leading articles to Sophocles was quoted. Sophocles was very sound on most things. Then we had the question of the media: television, radio and Press. They are not entitled to any preferential treatment. Television and radio are at liberty to put out what they wish. Last Sunday night I was looking at a television programme which consisted of two people being interviewed by a political commentator. One of them was a Dáil Deputy and the other a journalist, I think. The three were unanimous about their opinion of the Bill and treated it as though it were something abominable. There did not appear to be anybody to give the Government party view. That is a common feature of television and I have had many complaints about it. The other point of view, as far as this Bill is concerned, has got a splendid airing. I am delighted that today we had a more balanced outlook in this House.

Finally, I should like to refer to a point made by the Minister and that is the use of the word "freedom". He said that freedom under certain conditions could become licence. This is perfectly true. The word has been absolutely abused and is being abused every day. You hear people talking about freedom. Freedom from what? To do what? One would feel like quoting a certain famous saying: "Oh, liberty, oh freedom, what nonsense is spoken in thy name".

Mr. McDonald

The one obvious thing about this debate in relation to our colleagues across the floor is that we are all very nice amenable people here, if we are in full agreement with what is proposed and if we do not dare to question any of the sections or subsections of the proposed legislation. Surely this is what Parliament is for: to examine in depth and detail the legislation that comes before us. It is not appropriate that the manner in which legislation is examined, especially when it gets a thorough examination, should be scoffed at from such a height. However, we will not be put off by that. We would like to give this Prohibition of Forcible Entry and Occupation Bill the same thorough examination, especially during Committee Stage, that my colleagues and my party give to every piece of legislation without exception. We do not work for praise and, therefore, we tend to take everything in our stride.

There is no doubt that this piece of legislation has caught the imagination of many and has been the cause of much comment. I was amused to hear one of the Government Senators calling it a bold and imaginative piece of legislation. I agree with him in that it is as bold as one would expect. I personally believe in the right of ownership and in the right of the individual to own, acquire or to sell his own private property. I believe in private ownership, be it a three-roomed thatched cottage, a house, a flat or an estate. We have always stood on the right of the individual to own, acquire and defend his property.

If I might be permitted to deal with this question of statutory offences, and mens rea as it would apply to any of the three sections, the Senator sought my authority for the statement in my opening speech that mens rea would, in any event, still apply and therefore there would be no question of somebody committing an offence as it were by mistake or without the necessary intention. I stand absolutely over that statement.

Dr. Glanville Williams deals with it at considerable length in his book, Criminal Law: The General Part, 2nd Edition, Chapter 23, at page 328 and many following pages. It is also dealt with as far as specific Irish statutes are concerned by Justice Crotty in his Practice and Procedure in the District Court at page 121 and a number of following pages where he cites a considerable number of cases. Perhaps the most lucid exposition of the general principles of the law in regard to this whole question, because it is a very general and very basic question, is in the judgment of the United States Supreme Court in Morrissette v. United States, 342 U.S. (246) (1951).

The United States Supreme Court deals there at fairly considerably length with the type of cases which would have mens rea as a necessary integral part of their make up and the type of cases which would not. I hesitate to delay the House by quoting at length from it because it is available, of course, from the reference I gave, to any Senator who is sufficiently interested in it. It sets out—and sets out in remarkably good English, too—the type of cases where there has been a sort of evolution of a non-necessity for mens rea and it describes them or classifies them in a type or group which it calls public welfare cases. They constitute, for the most part, offences against public health regulations, or offences of the less serious and the more technical type against road traffic laws, or regulations and similar types of offences where the moral turpitude, as it were, constituted in the offence is not so great but where the damage that could flow from repeated commission of the offence could be a serious blow to the public good. It goes on to say that the lack of requirement of mens rea is strictly confined to that kind of case. Then it goes on to the more serious type of case and says in effect that unless mens rea is specifically excluded from this type of case, it is presumed or assumed to be present. The same principles apply in Britain and here also.

It is very well dealt with in Crotty in practical terms with reference to particular cases here, but the best summing up in general terms is on pages 259 and 260 of Professor Glanville Williams' book. He says:

Every criminal statute is expressed elliptically. It is not possible in drafting to state all the exceptions and qualifications that are intended. One does not, for instance, when creating a new offence, enact that persons under eight years of age cannot be convicted. Nor does one enact the defence of insanity or duress. The exemptions belong to the general part of the criminal law, which is implied into specific offences. On the Continent, where the criminal law is codified, and similarly in those parts of the Commonwealth with a criminal code, this general part is placed by itself in the code, and is not repeated for each individual crime. Now the law of mens rea belongs to the general part of the criminal law, and it is not reasonable to expect Parliament, every time it creates a new crime to enact it or even to make reference to it.

I dealt with this particular sort of problem in the Dáil and I pointed out there, and it remained perfectly valid, that if one was expected to write into every offence that is created in a statute every defence that is available to a defendant, every section would inevitably run to several pages. There is a large amount of basic law in favour of a defendant which applies to every crime or every offence unless it is specifically excluded. It is taken for granted that this is so. Therefore, in every Act passed by this Oireachtas, which creates a new offence, or reenacts an offence in some different form, it is not necessary to set out at length all those exceptions and all those defences which are available to every defendant unless they are specifically excluded. The only places where the courts have excluded them are either where they are specifically excluded by the Legislature or are excluded by implication in things like food and drug offences or something of that nature, where it is not a defence for the proprietor, for example, of a public house to say that he did not know that his employee had watered the gin or some similar defence like that.

Equally it is not a defence under the Road Traffic Act, say, for a defendant to say that he did not know that he was not insured at a particular time. It is essential in the public good that every driver of every motor car should be insured but, at the same time, I am sure Senators are well aware that, if a defendant goes in and tells his story to the justice, if he believes him as he would in a genuine case, the justice may be constrained to convict him, but there is no doubt that he takes the circumstances into account in arriving at a penalty and he may well impose either a very nominal penalty or no penalty at all if that is appropriate in the particular circumstances.

There has been a good deal of reference in this debate here today to the possibility of solving the problems that this Bill, it is now agreed on all sides, is brought in to solve, not by the creation of criminal offences but by the speeding up of civil remedies and making it easier to avail of them. That case has, indeed, been made many times before today. It is a case that I cannot accept because, with all due respect to those who make the case, and I quite accept that they make it in all good faith, they fail to grasp the basic nature of this problem. This is not a problem where one person interferes spontaneously or individually with the rights of another person. This is a problem where a subversive group organise themselves to take advantage of a particular situation that may exist with regard to certain things at a certain time and instal themselves in other people's property. As I have said many times, and I want to reiterate it now, the criminals in this situation are not the unfortunate people who go into the houses because very often they are only small pawns in a much larger game. Civil remedies are available to any individual whose rights have been damaged or interfered with by another individual.

There is no point in the owner or the rightful occupier or tenant of a corporation house trying to get some sort of civil remedy against somebody who has been put into his house while he was away on holidays, or while he was waiting to go in after it had been allocated to him by the corporation. If it were a question of one man deciding to squat in someone else's house that, I agree, might well be a case where civil remedies would be the appropriate ones and where there might be a duty on us to try to expedite them. That is not the case. That is not the situation with which we are dealing. We are dealing with a situation where organised subversive groups endeavour to organise people to put them into these places and to keep them there. If they are got out of that particular house they are put into another one. That is a situation that will keep recurring.

Professor Kelly

While accepting all that, the Minister's Bill does not differentiate between these cases. That is the burden of our complaint.

Mr. O'Malley

It does, Sir, with great respect. I was at some pains to point out this morning in my opening speech the way in which forcible entry in section 2 and forcible occupation in section 3 are hedged in by definition, that they are forcible and not just ordinary simple squatting, that there must be forcible entry to keep out the persons entitled to the property and not to give up possession when requested with reasonable speed and to barricade yourself in, and all the rest of it.

I am glad of the opportunity to repeat that squatting simpliciter in its commonest form, or in what has been referred to here today as its compassionate form, is not subject to this Bill. It is this organised forcible activity which is. There is no point in trying to make civil remedies available against a group of people who are in the background, who probably could not be named as defendants in a civil case because they are not in actual occupation and who, in any event, do not accept the basic tenets of our law, who seek only to overthrow them, because any civil case in this or any other democratic country presupposes that the two people involved in that civil case have conflicting claims to a piece of property, or a claim for damages or something of that kind. They go to the court as an arbitrator as between their conflicting claims and, above all, they will accept the decision of the court on the dispute between them.

When you are dealing with people who organise this sort of situation, the last thing that they would accept would be the decision of a court, particularly when that decision is against them. They will very readily accept it, of course, if it happens to be in favour of them, as it is occasionally for one reason or another. It is quite illusory to talk of civil remedies in this sort of situation which is based on intimidation and fear and which endeavours to strike fear into people by intimidation; people who want to interfere with nobody else, but simply want to enjoy their own property, whether it is their own or whether it has been allocated to them by a local authority.

One of the examples I can give by analogy of the basic misconception involved in that approach is to pick some other incident which is both a tort and a crime and to say to people "Would you be satisfied if the State were to regard this as a tort only?" The obvious example that springs to mind is the question of assault. If A assaults B, B is entitled to damages against A for whatever injury has been done to him. The injury may well be very serious and he may be entitled to pretty considerable damages. I do not think any of us would seriously suggest that the duty of the State ends at simply making available to the injured party the right civilly to sue the party who did the injury and who very often has no means. Our whole way of life and our whole system of law and order would break down if that were so. We would expect that the State should provide a police force and that it should provide a system of law which would enable that police force to arrest and charge somebody who seriously assaults another person.

There is nothing to stop the civil and the criminal remedies being available simultaneously and being available twice arising out of the same incident or the same set of facts. Very frequently it does happen and this, I venture to suggest to the Seanad, is a case where the civil remedy, no matter how efficient or effective it could be, is not enough. We have heard quoted this Order 113 of the new English Superior Court rules. We are told that in certain circumstances, and provided no appearances or defences or anything else are entered by a defendant, it would be possible for someone whose house has been occupied by squatters to regain possession in seven days by civil action. I think that that is an excellent thing, but I do not think it is enough by any manner of means. It is not regarded in England as being enough because they endeavour in one way or another to enforce this very ancient law that is just not acceptable in this country.

In my opinion it is simply not enough for the Government or the Oireachtas to go along to the people of this country and say "We will streamline the civil remedies and you can start an action in the High Court and, if all goes well and there is no appearance entered and the defendant does not turn up, you will get your house back in seven days." What is a man supposed to do, assuming it is his only house? If the corporation have allocated him a flat and he is away for a day or two and comes back and finds it occupied, he has not got anywhere else to go. First of all, he may find it very hard to proceed in the High Court. He may not just want to do that; it may be financially quite impossible for him to do it. Even if he were able to do it, and if the procedure could be streamlined to ensure that he could in certain circumstances—and I stress certain circumstances—recover possession in seven days, what good is that to him? He would hardly think it adequate.

That brings one back to the very basic question that I think underlines all this —that we can all be liberal and we can find fault with efforts to rectify problems —and no doubt faults are there in every human endeavour—but it comes back to the basic problem that each one who might feel doubtful and critical about this Bill should ask himself what would happen if his house were occupied, what happens if his office is occupied, or he is prevented from living in his house or carrying on business in his premises. Basically the Bill is about that and it is not about anything else. To concentrate on other things that are really extraneous to it, or at the best peripheral to it, is not to deal honestly with the basic problem that is there. It is no answer to say that all this law is there before.

It is very confusing for a Minister to sit here and listen to the conflicting criticisms that are made of this Bill. They fall into two basic divisions, as far as I can see. There are those critics who get up and say with some limited justification: "All this law is more or less here already; therefore you are not making any new law, and there is no need for this Bill. What is all the fuss about, why bring it in at all?" Then the next speaker on the same side, more than likely, will get up and say: "The Minister is creating new offences. These concepts are foreign to our law; we never had this sort of thing before and there is no need for it." The whole thing is basically self-contradictory.

To those who say that we have this law already and, therefore, do not need this Bill, with the greatest of respect to them I venture to say they would be the first people to stand up here, or to stand up in public, and object if prosecutions were brought under this Act of 1381, which has been referred to as being, apparently, still in force here. They would be the first people to make a song and dance about using legislation which is 600 years old, which was passed in a medieval period, and has no reference at all to present conditions, and could not possibly have. That Act—as Senator Nash pointed out—was written in a language which not alone do we not speak nowadays but nobody speaks. It was written in this special legal Norman French which was used at the time.

It is very doubtful, indeed, whether anyone could adequately prove that any one of those Acts are actually in force. The researches that were carried out on my behalf during the debate in the Dáil on this point seemed to indicate that there was, in this country, at any rate—and so far as one can judge in Britain also—no extant copy of these early Acts. The only reference one could find to their content was in commentaries on them, and extracts from them, written many hundreds of years later. I have no doubt that the extracts from them are accurate and adequate to convey the sense of what was contained in those Acts of 1381, 1391 and 1429 but if a defendant is prosecuted under such an Act, a very obvious point one can make is to go along and ask the prosecution to produce the Act and prove that it exists. In theory if you were prosecuted under the Road Traffic Act you could, if you so desired, require the prosecution to prove a copy of the Act. It is not done in practice, of course, because it only rarely happens that there would be prosecutions under Statutes that are more than, say, 125 or 130 years old. In theory, at least, it is open to a defendant to take such a course. Certainly if I were appearing for a defendant charged under such an Act— and I am sure the same would go for any other solicitor or barrister who may be a Member of the House—I would put the prosecution under very strict proof to prove that it existed. Even if they were able to prove that the Act existed I would, I think, be able to put them in severe difficulties about construing legal Norman French of the 14th century.

Mr. O'Higgins

If the Minister follows section 5 of this Bill it will remove all difficulties of proof from the prosecution.

Mr. O'Malley

I want to ensure that this Bill will have sufficient powers in it to deal with those who are advocating or encouraging this sort of activity. Those people are in the background; they will not be the people who will do the actual "sitting-in" in a particular place. I want to ensure that this Bill is effective when it is passed. The only way it can be effective is by trying to get at that hard core of people who are in the background organising this sort of agitation all the time.

Professor Kelly

These people are unlawful organisations.

Mr. O'Malley

If as a result of this Bill we are able to solve, or go a good way towards solving, this particular type of problem, I have no doubt that we will have some other analogous but different problem in a year's time because they will say: "The squatting thing is washed out now; it has got too dangerous, we will have to give that up; we will go on to some other thing." I have no doubt they will. There will always be a need for something or other. All the people's needs will not be satisfied in full at any given time. It may even be that I will have the frustrating job of coming back here in a year or two with another Bill to deal with some other sort of subversive strategy or tactic. We will then deal with that and then we may have to come back another year or two afterwards. That will be after the next general election.

Professor Kelly

You are giving yourself away.

Mr. O'Malley

While these people are on this particular strategy or tactic I will endeavour to prevent it. One of the reasons I particularly want to prevent it is that the greatest injustice of all is being done to those people who have been prepared to abide by the law, abide by the system of priorities drawn up. They have got themselves up to, or close to the top of the housing list; they would be housed were it not for the fact that the flat or house which the Dublin Corporation would have allocated to them has been occupied by somebody who is either not on the list at all or is far down on the list of priorities. That is a most deplorable situation.

Similarly, with regard to the occupation of business premises of one kind or another, it is an appalling interference with the rights of citizens in this country.

Professor Kelly

The Minister is pushing an open door about all this, but what I would like to——

An Cathaoirleach

The Minister should be allowed to continue without interruption.

Mr. O'Malley

The reason that section 4 is here is that those sorts of problems which apparently the House is agreed should be dealt with are being carried out by people in the background whose only connection with the matter is to encourage or to advocate. Therefore, I wish to discourage or dissuade by the criminal law, if necessary, those who would encourage or advocate this sort of thing. Frankly, I make no apology to Seanad Éireann or to the people of this country for seeking to do that.

Professor Kelly

The point is that the people whom the Minister has described —and I do not dissent from the description—constitute on the Minister's description an unlawful organisation and why does he not declare them as such? That will give him a whole bundle of powers that have been on the Statute Book for 32 years.

Question put.

The Seanad divided: Tá, 31; Níl, 17.

Tá

Brennan, John J.
Brugha, Ruairí.
Cranitch, Mícheál C.
Crinion, Brendan.
Doyle, John.
Eachthéirn, Cáit Uí.
Farrell, Joseph.
Farrell, Peggy.
Fitzsimons, Patrick.
Flanagan, Thomas P.
Gallanagh, Michael.
Garrett, Jack.
Hanafin, Desmond.
Honan, Dermot P.
Jessop, W.J.E.
Keegan, Seán.
Keery, Neville.
Killilea, Mark.
McElgunn, Farrell.
McGlinchey, Bernard.
McGowan, Patrick.
Nash, John J.
Norton, Patrick.
O'Callaghan, Cornelius K.
Ó Maoláin, Tomás.
O'Sullivan, Terry.
Ryan, Eoin.
Ryan, Patrick W.
Ryan, William.
Sheldon, W.A.W.
Walsh, Seán.

Níl

Belton, Richard.
Boland, John.
Butler, Pierce.
Desmond, Eileen.
Farrelly, Denis.
FitzGerald, Alexis.
Fitzgerald, Jack.
Kelly, John.
Lyons, Michael D.
McDonald, Charles B.
Mannion, John M.
O'Brien, Andy.
O'Brien, William.
O'Higgins, Michael J.
Owens, Evelyn P.
Prendergast, Michael A.
Reynolds, Patrick J.

Tellers: Tá; Senators J. Farrell and Brennan; Níl; Senators W. O'Brien and Butler.

Question declared carried.

An Cathaoirleach

When is it proposed to take the next Stage?

Tomás Ó Maoláin

I suppose they would die of shock if I said now, so in order to give them time to recover their breaths, I suggest Tuesday next.

An Cathaoirleach

Is that agreed?

Mr. O'Higgins

It would not be unreasonable to allow at least one full week before the Committee Stage. I do not know what the time schedule would be for getting the printed Seanad Official Report, but we are entitled to have a look at it before actually wording amendments. I suggest making it Wednesday of next week.

Tomás Ó Maoláin

My difficulty is that in view of the carry-on here yesterday and today, I have no gurantee that this Bill will be finished before Christmas.

Professor Kelly

I protest about this. What sort of carry-on? The Second Reading went through in a single day.

(Interruptions.)

An Cathaoirleach

Will Senators standing outside the seats please sit down or leave the Chamber? A question has been asked about the time schedule for the Official Report. It is hoped that the Official Report of today's proceedings will be available by Monday morning.

Mr. O'Higgins

Committee Stage ordered for Wednesday, 18th August, 1971.

The Seanad adjourned at 10.35 p.m. until 3 p.m. on Wednesday, 18th August, 1971.

Seanad Éireann debate - Wednesday, 11 Aug 1971