Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage (Resumed).

Debate resumed on the following amendment:

In subsection (3), page 3, lines 2 and 3, to delete "or with the permission of the owner" and to substitute "or by the owner, or with his permission".

—(Senator Kelly.)

Professor Kelly

We broke off last night in order to give the Minister and his advisers an opportunity to consider the point which I had raised, which I took simply to be a point of drafting, and which I still think is a point of drafting and represents faulty drafting on the part of the Minister's Department or of the parliamentary draftsman. If I may restate it briefly— perhaps a night's sleep will have enabled us all to get a better grip of it— the wording at present of subsection (3) of section 1 is as follows:

Nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner.

The object of my amendment was to make this point briefly. If this subsection serves any purpose at all in this Bill it is to enumerate or recite classes of persons to whom these criminal sanctions are not going to be applied. If that is the purpose of the subsection it should be a complete recital. As it stands it does not seem to me to be that because the phrase "lawful authority", as the Minister himself said in dealing with the amendment immediately preceding, is a phrase normally used or thought of to contemplate a public authority—for example a sheriff entering land in pursuance of a warrant of execution or a garda entering land in pursuance of a search warrant. In other words the "lawful authority" phrase would only cover public authority.

The other part of the exclusion deals only with people entering the land with the permission of the owner. Leaving out the discussion we had about the meaning of the word "owner" that is fair enough, but the owner himself is not excluded by this subsection. My view simply was that, if the subsection is intended to provide a complete set of exclusions, in logic the owner should be included. The Minister's reply to that was that the owner is in any case excluded by the exemption in clause (a) of section 2. My reply to that is that, if so, the lawful authority people are also excluded by exclusion (c) in section 2. The entire necessity for the subsection seems to me to disappear. I would like the Minister to explain what purpose he feels this subsection now fulfils and if it fulfils a purpose, whether that purpose would not be better served by making the recital of exclusion in it complete by having entry by the owner himself included.

Minister for Justice (Mr. O'Malley)

I have considered this overnight and I am satisfied that there is no substance in the point. There is nothing to add to what I said last night.

Mr. O'Higgins

There is another point I raised in connection with this.

I do not know if it would suit the House to consider it on this amendment. If not I am prepared to draft it and hand in another amendment on this subsection: that is simply to delete the words "or with the permission of the owner". The point is of some importance. I do not know whether the Minister has had an opportunity of considering it overnight. We had some discussion already in connection with this section as regards the definition of owner. If this subsection remains as it is drafted we will have achieved the ridiculous position that not merely will the legitimate or occupying owner or the landlord, in the case of a tenancy, be exempt from the provisions of this Bill, but anyone who makes an entry whether it be a forcible entry or not with the permission of the owner would also be exempt from the provisions of this Bill.

The definition of owner, as has been sufficiently emphasised already, is so broad that it includes anyone with the minutest interest or estate in land. We discussed yesterday the question of the various superior interests rising like a pyramid on top of the vested ownership of the person in occupation and the fact that those superior interests can break up into all sorts of minute fractions. The owners of all of those fractions are by the definition section of this Bill an owner because they have an estate or interest in the land. Now we find under subsection (3) that not alone would those people, whose right to possession and occupation of the land might never arise, be exempt from the provisions of this Bill, but anyone who enters with their permission or with the permission of any of them is also exempt from the provisions of this Bill. If the Minister does not want this Bill to become a complete farce he should at least delete in subsection (3) of section 1 the words "or with the permission of the owner".

Mr. O'Malley

That is precisely the same point as Senator O'Higgins made yesterday in relation to some earlier amendment. The same difficulty remains. On his own example, as I pointed out last night, the pyramid of owners, the fee farm grantor at the top of the pyramid has at the moment a right of re-entry if there is a breach of the covenant in the grant. You would have the position, if I accept Senator O'Higgins's suggestion, that either that right of re-entry is abolished—which I do not think we should do even if we had power to do it, which I doubt —or, alternatively, if it is not abolished, that it must be exercised on behalf of the persons concerned by the Garda. Simply because a fee farm rent is in arrears is no justification for bringing the Garda into it.

Mr. O'Higgins

The Minister is referring from a tactical point of view to an illustration given where a fee farm grant was involved. That may not necessarily be so.

Mr. O'Malley

It is the example given for about two days by Deputy Fitzpatrick and Deputy Cooney in the Dáil.

Mr. O'Higgins

I am glad that at least in that respect the penny dropped with the Minister. Let me try one of the new coinages on him. It need not necessarily refer to a case of a fee farm grant at all. It may be a simple case of a long lease. The lease may not contain any provision for re-entering. It may contain penal clauses as regards rent in the event of a covenant being broken. The question of re-entry may not arise at all. I do not think the Minister meets the case that is being made by referring simply to a question of a fee farm grant.

Does the Minister not realise here that from his own point of view, if he wants to have this as an Act which can be operated and implemented, that he must simply take out these words? Otherwise, the door is thrown wide open.

Mr. O'Malley

It is but that presupposes that fee farm grantors will go around organising people to go into houses. We have no reason to believe that. It is a most stupid thing.

Mr. O'Higgins

I realise that the Minister heard the words "fee farm grant" for two days in the other House. Let him try to forget it for the moment.

Mr. O'Malley

The Senator referred to them this morning.

Mr. O'Higgins

Let us talk about superior intersts, which the Minister might find a bit easier to digest. I do not think that that meets the point at all. I think Senator Alexis FitzGerald was quite right to raise the point— remember the Minister has presented this Bill to the Seanad as a Bill which is intended to circumvent the activities of subversive organisations—that a subversive organisation wishing to get around this Bill would act in the manner which was forecast by Senator Alexis FitzGerald. Anyone with any experience of the property market in this city in any event would agree that there would be no great difficulty in purchasing ground rents at a comparatively modest price nowadays. To a great extent the failure of the Government in economic matters probably occasioned that position. However, I do not suppose we are entitled to discuss the Government's economic policy on this section. It could very well be that subversive organisations would act in that manner. If they do act in that manner this Bill is completely useless to the Minister.

Mr. O'Malley

I will take that risk, Senator. Do not worry.

Professor Kelly

We are the ones that are taking the risks.

Mr. O'Higgins

We are the people who decide in this House what risks will be taken with legislation. It might be as well for the Minister to bear that in mind. As far as I am concerned this is a piece of legislation that is brought here before the House. We have made, and are making, reasonable and honest efforts to improve it. The Minister has presented it on a particular basis. The basis on which the Minister has presented it is one which would find very ready sympathy in most quarters of this House —to circumvent the activities of subversive organisations. Why, then, should we be asked to sit back because the Minister is prepared to take a risk with sloppy legislation, and say: "We will agree, off you go, boy. Do the best you can with this sloppy instrument." As far as I am concerned I am not prepared to adopt that attitude.

If the Minister insists on leaving subsection (3) unaltered he is throwing the door wide open to a vast number of exemptions from the provisions of this Bill. He is slanting this legislation in such a way that for practical purposes it will apply to the tenant and the tenant only and that it will not apply to squatters because it will be so very easy for squatters to get the protection which is built into subsection (3) of section 1 of this Bill.

Mr. Nash

Senator O'Higgins's logic is perfectly correct and I do not think any of us can quarrel with it. It is a question of trying to produce a piece of legislation which will prevent squatting by organised groups. I think that is really the fundamental basis of this Bill.

I agree that "owner" is a wide term. It includes the lawful occupier. When a person occupies land or occupies property it means that every member of his family occupies it. If it is a business concern it is occupied by his manager and by his staff. It also includes tenants, even persons who rent on the 11 months system. It is between all or any of these people who have what I would call a tolerable right. The Bill does not purport to settle any dispute between them. We are agreed on that, there is absolutely no doubt whatsoever about it.

We are agreed that if one of those people does something which interferes with the rights of the other he cannot be prosecuted under this Bill. The parties must have recourse to civil proceedings between them. I think we were also agreed, but perhaps we are not, on the principle that as between people having tolerable rights to titles, stretching from the fee simple down to the most humble tenant in the place—the permissive occupant if you like—there should not be criminal proceedings. Any disputes between them should be settled by the civil law. It is a matter of public policy that that would be important. I do not think that as between people who might have possibly bona fide conflicting rights, because they had certain interests in the title, or mala fide claims which they were making because they had a tolerable title, the criminal law should apply to their disputes. These should be settled by the civil law.

Senator O'Higgins has raised the point that it could enable certain subversive organisations, by purchasing ground rents or by other means, to drive a coach and four through the Act. There is no Act of Parliament made, whether criminal, Finance Act or otherwise, that some people will not expend their time and their energies—sometimes their minds and their money in paying fees to lawyers —to enable them to drive a coach and four through them. An Act of Parliament, after all, has to be a practical piece of legislation to do the most good for the most people in an effort to attain the common good. If you restrict the term "owner," as Senator O'Higgins has suggested, the problem is, will it do more harm than good? There are the possible points as to why subversive organisations should be allowed a loophole or possible way out.

I have explained that in the case of any person having any kind of a legal title it must be settled by the civil courts, not by the criminal courts. Suppose the word "owner" is restricted as he says. For all practical purposes in the case of every company, every corporation—be it county council, urban council or other bodies —every person who is an invalid confined to hospital or every person who is of defective mind would lose the benefit of section 6, which is most important.

One of the really big problems which this Bill is intended to solve is when people move into property they will not do a vast amount of damage to it. In England today that is recognised. There was a month or two ago —I do not know whether it still is the law—an Act in existence in England called the Criminal Law Reform Act, 1971, which was enacted with a view to correcting damage to property that can be caused by squatters in a very short space of time. The benefit of section 6 is lost, if Senator O'Higgins's definition is accepted, to a vast number of people. The benefit of section 9 is lost to a vast number of people.

The number of loopholes that would be opened would far exceed the number of loopholes that are opened by the fact that illegal organisations can endeavour to buy a headrent. They may not find it all that easy to buy a headrent. One individual can buy the headrent and he can be a member of an illegal organisation. To do this at least they are on the first step to recognising that people must lead an ordered existence within the law of the land. People who recognise that fact are on the first stage of recovery. You will not have anarchists, Maoists and so on coming along and saying: "We are at last going to lead, at least within some limits, an ordered existence. In order to commit our legal acts we are going to do something legal for the first time in our lives instead of acting like a mob." I appreciate Senator O'Higgins's point of view but I genuinely feel that if the amendment was accepted it would create more problems than it would solve.

Professor Kelly

I want to reply to three points made by Senator Nash. I do not agree that the kind of amendment which we are urging on the Minister in this regard—although I think we have strayed a bit from amendment No. 9—would create more problems than it would solve. The Minister, by introducing this Bill—the objects of which, as I have repeatedly said, we do not in principle disagree with—has created the problems for himself. It is up to him to solve them. We will do the best we can to help him. The attitude that the Minister took up when he last spoke on amendment No. 9, that he was satisfied it was all right without explaining why he thought it was all right, is not the right attitude to adopt.

If the Chair will allow me—I do not want to be contentious or annoy anybody at this early hour of the morning —I will recall for the benefit of the Minister an amendment which was pressed on him here when the Firearms Act was going through this House.

The amendment in that case was pressed, equally in good faith, in regard to making it an offence for somebody in this jurisdiction to procure the importation of firearms into the North of Ireland by whatever route. The Minister's reaction to that amendment was not only hostile but impolite. Two weeks had not passed before the Minister found himself obliged to reply—and I think he was right in replying—to an allegation from Mr. Faulkner that he was not doing anything about controlling the importation of arms into the north. The Minister made a speech pointing out that the Firearms Act had only recently passed through both Houses of the Oireachtas. His position would have been ten times stronger had he been able to say that we had a clause in it, such as the one suggested by us, which makes it an offence for anyone in our jurisdiction to organise an importation of arms by whatever route into the North of Ireland. It would have been a stronger and a better speech had he been able to say that, but he prevented himself from being in that position by taking up the belligerent attitude which he took when the Bill was going through in the face of well-intentioned amendments from this side of the House. I do not accept what he said when he last spoke. It amounted to a simple denial without reasons that there is no substance in the amendment we have put down, which is amendment No. 9, and in the points which Senator O'Higgins has raised.

The points with which Senator Nash has replied are, I think, without substance. Senator Nash says that all legislation is the target for people who want to drive a coach-and-four through it. All legislation is something in which people want to try and find loopholes. He even quoted the example of Finance Acts. Senator Nash knows as well as anybody else that the very instance he has given is one in which Parliaments fall over themselves and take endless pains to try and plug these loopholes right from the beginning. He knows very well that a considerable part of the time of the Department of Finance is taken up with trying to make watertight the Finance Acts on which the State depends for its revenue. He knows that the efforts of the Government, both in the sense of the political government and in the sense of the administrative government, are constantly directed towards plugging these loopholes and towards plugging them with new legislation every year. I do not see why this Bill, which concerns people's rights and people's liberties, should be any different to a Finance Act. I do not apologise for trying to plug these loopholes. I do not apologise for criticising the Minister, not as a man but as a Minister, for taking the attitude he does towards them.

With regard to the colour of right argument which Senator Nash put forward, I concede that you might find a case in which a landlord makes a forcible entry on his tenant's possession. There may be a landlord who is so ignorant as to think himself entitled to do so if the rent is outstanding. I gave an instance yesterday about a premises which was forcibly re-entered by a landlord who ousted his tenants last year. It is possible to imagine landlords who are so ignorant as to think that they are bona fide exercising a right in forcibly re-entering property which they have let to a tenant but most landlords are not in that position and know perfectly well that they are not entitled to do so. There is a big difference, therefore, between a colour of right and a bona fide claim of right.

For example, I do not think that the Earl of Pembroke would consider himself to have the slightest colour of a right of any kind to resume possession of, or to enter forcibly on, any of the premises within his estate in Dublin. The same goes for any other ground landlord or owner of the fee simple. There is a very large difference between being able to say: "I have got some interest in this and so I have got a colour of a right" and being able to say: "Well, I have got a bona fide right" when the man knows perfectly well that he has no right to put his foot across the doorstep except with the tenant's permission.

That brings me back to a point I was trying to make yesterday. We will be faced with a situation, if this Bill passes, that the very same activity committed by two separate persons at the same time, which but for this Bill would be equally unlawful, is, because of this Bill, going to be a crime in the case of one and no crime in the case of the other. That is a dilemma from which the Minister has not extricated himself and will not be able to extricate himself except by the votes of 30 Fianna Fáil Senators. That is the wrong way to pass legislation.

Not only has he not extricated himself from that constitutional dilemma but he is in a further dilemma. I will not labour this too long because the Minister promised last night to look at this point again. He said in regard to the narrowing of the definition of "owner," which we were trying to urge on him, that if he narrowed the definition of "owner" so as to make a superior landlord just as much subject to this criminal statute as an outsider he would be bringing the Garda into private relationships. If he looks at amendment No. 7, which we debated here last night along with amendment No. 10, which belongs to section 2, he will find that is exactly what he is doing with another range of private relationships: the overholding permissive occupant, the over-holding mortgagor or the trustee.

The trustee is another one we have not thought of. A trustee in our law is somebody who has a stake of some kind in land. It is not an equitable interest but it is the legal interest. All trustees of all descriptions who have an interest in land of a non-beneficial kind—in other words people who are not entitled to any beneficial interest in the land, to occupancy or anything else—are exempted under this Bill. I do not think the Minister has faced up to these things at all. His desire to keep the Garda out of private relationships is not going to be met if he allows this Bill to apply to the people whom I have described, who, in the ordinary course of events, in the absolutely preponderating number of cases have nothing to do with subversive organisations at all. These are dilemmas logical, practical and constitutional, from which the Minister has made no attempt, so far as I can see, to extricate himself.

Mr. O'Higgins

Senator Nash—I think it is due to him to say this— made a reasonable effort to deal with the points which have been raised on this amendment in connection with the suggestion of simply deleting the last seven words in subsection (3) of this section. If the Minister and Senator Nash swopped places possibly we could have a freer and more easily understood discussion with regard to this Bill.

What Senator Nash is doing—I think probably he recognises that he is doing it—is necessarily ignoring to a large extent the anomalies which will exist if this section goes through unaltered. Having dealt in subsection (1) with the definition of "owner" and having included in that definition by implication an exemption not merely for the owner entitled to possession, not merely for owners of remote prior estates in the property, but even for a person who acts on behalf of the owner entitled to possession or the owner of a remote prior estate on the property, we then come along in subsection (3) and positively exclude from the operation of this Act any person entering with the permission of the owner within the meaning of the very broad and extended definition that is set out in section 1 (1). Senator Nash will, I think, realise the anomaly that is being created here if he reads subsection (3) in this way. This is no exaggeration.

Section 1 (3) states:

Nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority...

These words can be substituted for the next seven:

... or with the permission of any person acting on behalf of any person having any fractional interest in any remote estate in the ultimate reversion in the land expectant on the determination of any number of prior estates.

One can read that in because that is what that means.

Mr. Alexis FitzGerald

Or any mortgagee.

Mr. O'Higgins

Or any mortgagee or trustee. The whole thing is ridiculous.

Mr. Nash

I accept that. First of all, I should like to refer to what Senator Kelly said. He said it is our duty to produce an Act of Parliament in which nobody can possibly find a loophole just as in the Finance Act and in every other Act.

Professor Kelly

So far as we can do it.

Mr. Nash

So far as we can do it. By these amendments my contention is that we are doing the opposite. We are creating, in so far as the spirit of the Bill is concerned, more loopholes, more entrances than we would be by leaving it as it is. In my opinion it is utterly impossible to carry out the spirit of the Bill unless the section stands as it is. I agree that then there can be certain breaches, there can be certain taking of possession forcibly, there can be certain cases of retention of possession forcibly to which this Act will not apply and in respect of which the parties must have recourse to their civil remedies.

Senator Kelly referred to the question of trustees. All right. Let us take the practical instance: an executor is the trustee. A man makes a will, he appoints XY as his executor and bequeaths all his property to AB. If XY goes into possession of the lands against the permission of AB and holds them forcibly AB must have recourse to his civil rights. He cannot proceed under this Bill. Likewise, if AB goes into possession forcibly while the legal interest is still in XY, they must settle their differences in the civil court. They cannot have recourse to the criminal court and that is only right and proper. It is just taking one particular example.

I appreciate the anomalies in the Bill. Anybody must, but the problem is how do you effect what is the simple purpose of the Bill so as to leave the fewest loopholes. In my humble opinion —I say this with all due deference— the method whereby it is done here in the definition of "owner" is the only one that commends itself to me in any event. I say that in all sincerity. I am quite prepared to accept that the sole intention of everybody who has spoken on this section is to make this Bill as good as possible, to leave as few loopholes in it as possible.

There is no such thing, I would say, and I say this again in all sincerity, as anybody trying to take advantage of anybody else for party purposes or anything else. We are here to produce a piece of legislation that will carry out a certain intention on which we are all agreed. In my view, as it stands, it effects that purpose to the very best that can be done in the practical circumstances and certainly I do not think —again I say this with respect, that the amendment that is proposed would be an improvement.

There are three lawyers on that side of the House.

(Interruptions.)

An Cathaoirleach

The Minister should be allowed to speak without interruption. This is Committee Stage and Senators will have ample opportunity to speak in their turn. The Minister, to continue without interruption.

Mr. O'Malley

If Senators opposite would read subsection (5) of this section 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 the Act—if he has not a right to go in, if he has not got a right to give permission, or to delegate authority to anyone else to go in, therefore, nemo dat quod non habet is kind of fundamental. Therefore the question of hundreds of people going in seems to be ludicrous. If the only example that can be found where this section is going to be made farcical, because the IRA or Sinn Féin, or whoever it is, are going to go around buying up ground rents in the city of Dublin, does anyone seriously think that that is a practical objection? If we have to amend a Bill in order to prevent a situation like that, we are losing all sense of reality and we are just making legislation some sort of technical game in which we think up ways of stopping things happening, which have not the remotest possibility of happening. If we thought of the Dublin Housing Action Committee, or the Communist Party of Ireland, or Sinn Féin sitting down at a meeting, on a particular night, and saying: “We will squat in, say, No. 120 O'Connell Street. We must get on to our solicitor and find out who is the fee simple owner of that, who is the fee farm grantor of it, who is the head lessor, or the sub-lessors, and all the rest of it, and we will buy out one of their interests.” The solicitor spends a week or two on it and finds out who some of these people are and some weeks later makes an offer. The offer is accepted, the contract is signed, the requisition is done, the search is completed.

Mr. O'Higgins

And at that stage there is no interest in the land.

Mr. O'Malley

The draft deed is done and approved of and the sale is closed possibly two months later. The Communist Party of Ireland, or Sinn Féin, or whoever they happen to be, say: "Now we have acquired our estate or interest; this is the loophole that O'Malley left, which was so kindly pointed out to us by Senator Alexis FitzGerald. Now we will go along to No. 120 O'Connell Street and we will squat there and nothing can happen." My honest feeling about that is, and I hope I am a reasonable man, that if they want to go to that trouble to do it, more power to them; they deserve it. If that is a loophole, and I suppose in a very technical way, it is a loophole, let it be a loophole. If they want to go to all that trouble, they deserve to get away with it.

It is worth nothing, especially in relation to the long debate on this amendment, that the purpose of the suggestions being made is to close loopholes, to lock off exclusions, or exemptions, from the Act in order to make it apply to more people than it would otherwise apply to. It is no harm for those who may not be so interested in the technicalities of this amendment to realise that that, in fact, is the objective. The purpose of Senator Kelly's amendment, which is supported by some of his colleagues, is to make more people subject to the criminal sanctions of the Act and, if the only way they are going to be subject to it, is by going to these extraordinary, unexpected rounds of buying out ground rents, or buying out interests in fee farm grants, and all the rest of it, for the purpose of squatting in places, I frankly do not regard that as a loophole in anything other than a purely technical and academic sense. It is of no practical significance at all. Anybody who realises the rounds they will have to take in order to get themselves into this loophole must surely appreciate that.

Mr. O'Higgins

The Minister has demonstrated quite clearly that he does not really understand what is happening under the Bill he is introducing. It may very well be that the reason for that is, as he has suggested, that he is a busy man, that he is a T.D., that he has to look after his constituents and that he has to run a Department but, so long as the Minister comes to this House sponsoring legislation, we are entitled to expect that he would take some time off from his other duties to understand the legislation he is recommending to this House. The burden of the Minister's opposition to this amendment and to the suggestion which I made by way of another amendment, which I have handed in, is that, if a person has not got a right to go in, he cannot give it to another person. That simply is not so under this Bill as proposed by the Minister because the Minister, in the definition section of the Bill, defines as an owner a whole lot of people who have not got the right of possession and who have not got the right to go in. He writes into the definition of "owner" all of these people with remote prior interests who are not entitled to possession and who may never become entitled to possession and, not alone does he write those people into the definition of owner, but he says in subsection (1) that anyone acting on their behalf or anyone acting with their permission in subsection (3) will have the right to go in the sense that they——

Mr. O'Malley

Read subsection 5.

Mr. O'Higgins

——will be entitled to go in so far as this Act is concerned without coming under any of the sanctions imposed by this Act. Is not that the position? I am glad the Minister now seems to be understanding it because he agrees that that is the position.

Mr. O'Malley

What! I most positively do not. I told the Senator to read subsection (5). I do not agree.

Mr. Alexis FitzGerald

But the Minister did express agreement. Perhaps the Minister was having a private conversation with somebody else.

Mr. O'Malley

If Senators opposite are reduced to that kind of thing——

Mr. O'Higgins

Let us keep cool about this. There is no need for the Minister to be in any way impatient. We have plenty of time.

Tomás Ó Maoláin

Is all the wisdom on the other side?

Mr. O'Higgins

Some of it may rub off on the Senator's side if he just approaches this coolly and calmly, takes his time about it and concentrates a little. Let us see what is in the Bill. The Minister has referred to subsection (5). Subsection (5) makes it clear that after the enactment of this Bill no one will have a right which he had not heretofore. I accept that. There is no dispute about it. I am not talking about conferring rights. I am talking about the new crimes being created by this Bill and the exemption which is being given to certain categories of people by virtue of this Bill from the new crimes which are being created. The point I am making is that, simply by obtaining the permission of a person with a fractional interest in land, a person can get into the category of people who are going to be completely exempt under subsection (3) from the provisions of this Bill, when enacted. It is a question of exemption, not a question of conferring rights. I am talking about a person who forcibly enters land as defined in this Bill, and who does so with the permission of a person who has the vaguest and most tenuous interest in the land, and certainly no interest in possession, and never likely to have an interest in possession; that person is exempt, under subsection (3), from the provisions of this Bill. The Bill will not apply to him at all. It says so in subsection (3). The Minister, in reply to that says: "But a person who himself has not got a right to go in cannot give a right to anyone else." But he can give the exemption provided in this Bill to someone else simply by giving permission. There is no doubt about it. If the Minister studies the Bill he will see that that is the case. Subsection (3) says: "Nothing in this Act shall apply to an entry or an occupation of land." It does not matter whether it is forcible or not "to any entry or occupation of land"—leave out vehicle for the moment—"in exercise of lawful authority"—I have no objection to that at all—"or with the permission of the owner", the owner being not the person lawfully entitled to occupation only, but a person who has a very, very remote interest in land because we are told that "owner" means any person having an estate or interest in land. These are facts. I am not making this up. This is in the Bill the Minister has served up to us. I challenge contradiction of what I am saying. I am giving facts. These facts all appear from a reading of the Bill.

I do not recall an occassion when we got such instructions or made such a plan for ourselves. I wish we could hear the last of these accusations of wanton carrying-on or the wasting of time. I dislike petulance on the part of Ministers or anybody else. We had a debate here a few weeks ago which was unsatisfactory in the highest degree from our point of view on the Higher Education Authority Bill for reasons that no amendments were accepted by the Minister although many reasonable and non-party amendments were put forward. But at least the Minister listened, I am afraid not with an open mind. But he did not behave petulantly. He behaved reasonably and politely. He made no enemies. He left the House as good friends with everybody as when he came in. I wish the Minister now in the House would take a leaf out of Deputy Faulkner's book because he makes debating here very difficult. I begin to understand when I read the Dáil debates why they went on so long.

This is the point I put forward on amendment No. 9 last night and I put it forward as a drafting point. I could not have imagined that it would last so long. The reason why it has been so long drawn out is not because of any intention to obstruct on our part but because I firmly believe a fair, open mind is not being brought to bear on it. The Minister, in what he complained was his fifth intervention, said that all he could see being done was playing with words. He insinuated that I was a professor with nothing else to do but spend days and weeks cogitating over the wording of Bills and thinking up ways to waste his time. I can assure the Minister that this weakness in this subsection occurred to me as soon as my eye lit on it. I had an amendment typed out within 20 seconds. There was no question of spending days and weeks cogitating on it. I, too, am busy oddly enough—not as busy as the Minister—but I have other calls on my time——

Tomás Ó Maoláin

In all fairness to the Minister, I think Senator Kelly is exaggerating.

Professor Kelly

I will give the Minister an opportunity to correct what he said if he wishes.

Mr. O'Malley

I have not the slightest intention of doing so. Will the Senator speak on the Bill?

Acting Chairman (Mr. McDonald)

Senator Kelly to continue on the amendment.

Professor Kelly

The Minister in his fifth intervention, which he described as a courtesy to the House—although what he is here for is to put us right if we go wrong—said that he could see no——

Mr. O'Malley

Speak about the Bill.

Acting Chairman

Senator Kelly on amendment No. 9 without interruption, please.

Professor Kelly

Let the Minister have a look at the faces of his own side and see what sympathy is there for him. The Minister knows that a debate went on here yesterday which was polite and reasonable on our side and almost no touchy words were spoken. When I hear the Minister talking about professors with nothing to do but to find loopholes in Bills, naturally I feel resentful, not as ill-tempered as the Minister I hope, but I intend to express that resentment. I am here to do a job and I am damn well going to do it whether it suits the Minister or not.

The amendment which I put forward as a drafting amendment is not as the Minister represented it. Subsection (3) purports to be an exempting subsection. It purports to be a subsection which takes out of the operation of the Bill certain classes of persons. I will make this as simple as I can. I feel the Minister is not listening to me with his full attention so I will make it as simple as I can for those on his side who still have an open mind on it. This exempting subsection exempts only two classes of persons from the application of the Bill. These two classes are as follows: persons who enter in the exercise of lawful authority, which the Minister equated yesterday with public authority—he gave instances such as sheriffs or gardaí with a search warrant—the other class exempted by this subsection are persons who enter with the owner's permission.

Fair enough, but why is the owner himself left out? Why is the owner himself not mentioned in this subsection? That is the reason for my drafting amendment. I do not regard the thing as having any special substance. I regard the subsection as having almost no value. I feel the subsection could be very easily dropped in toto. I still have not got from the Minister or from anybody on the other side an explanation of what this subsection is supposed to do that the Bill does not otherwise do, and if it has a purpose why that purpose will not be better fulfilled by completing the recital in the way I suggest.

Mrs. Robinson

It seems to me, in listening to the debate on the section and the attempt to have this amendment put through, that the problem stems from the fact, which Senator O'Higgins has explained so well, that we are creating in section I of this Bill a very wide definition of "owner" and then an exemption for owners from the effects of the Bill from being able to commit the crime of either forcible entry or forcible occupation. I was particularly struck by Senator O'Higgins's argument that not only is "owner" defined very widely as extending to any person with an estate or interest in the land, but in subsection (3), which is the provision we are dealing with at the moment, any person who enters with the permission of the owner, whose definition is extended in this very wide sense, could also be exempted.

This brings even further the many examples given last night. It is not necessary for persons to get an estate or interest in the land. It is not necessary for them to acquire an interest. All they have to acquire is the permission of the person with the remotest interest in the land. This defect stems from the new philosophy of this Bill. We are departing from the Forcible Entry Acts, the old statutes which the Minister feels may be obsolete, by giving an owner the right to be exempt from criminal liability in forcibly entering or occupying his property. We are extending the meaning of "owner" to a very broad category of persons and we are extending this category of persons to include anybody with the permission of the owner as extended by this very wide definition.

I do not think it is sufficient, and the only argument the Minister has made in reply is to look at subsection (5). Subsection (5) does not meet this point at all. As Senator O'Higgins stressed, subsection (5) has to do with the creation of legal rights and nobody on this side of the House is suggesting that any legal right is being given or that any civil rights are being either conferred or extended by this Bill. It has no bearing on them at all. I agree that in subsection (5) no right is being conferred, but a very broad criminal exemption is being given. An exemption is being given in the terms of the Bill to an owner so defined, and "owner" has been extremely widely defined. It can be somebody with no right to possession, with no right to go in but with some vague estate or interest in the land. Not only has the exemption been extended to an owner but the exemption has been extended to anybody with the permission of the owner, who is so very widely defined.

The Minister must appreciate that even if the Bill is directed against subversive groups it is very easy for those persons under the present terms of the Bill either to get or to have a vague interest in the property, but certainly to get the permission of somebody with a vague interest in the property. This is not an unlikely consideration. It is a very large loophole and it seems from what I regard as a basic defect of the whole section that we are changing the philosophy of the Forcible Entry Acts and we are granting a large exemption from criminal liability to "owner" as widely defined and to persons going in with the permission of the owner.

Having had this brought home to me in listening to the debate, I propose to bring in amendments to this effect to cut down and to go back to the original idea of the Forcible Entry Act. If the Minister wishes to part from the laws in England in this respect, and the law as I submit it is here, this ought to be clear and I propose to try to amend this and to remove the exemption for owners under the Bill.

Question—"That the words proposed to be deleted stand part of the Bill"— put and agreed to.

Amendment declared lost.

Question proposed: "That section 1 stand part of the Bill."

Professor Kelly

I want to try to put as briefly as I can our feelings about section 1. The Minister undertook yesterday evening to look again at the question of the person who, when this Bill is passed into law, will be made criminally liable. I will wait to hear what he has to say when the time comes about this but let me briefly summarise otherwise our objections to it, they are as follows. The first three are what I call minor objections. We object to the too vague and weak word "participation" in the definition section. It should be something a bit tighter, something requiring active participation before somebody should become criminally liable.

We also think we were right in suggesting that the definition of "house" should be extended so as to make it clear beyond the capacity of an incompetent barrister to make a mistake in drawing an indictment that houses which are not yet complete are included. Thirdly, we complain strongly about the sloppy drafting which is to be found in this section, the kind we have been talking about in the last hour. However these are minor objections.

Our major objections to the section are those which Senator O'Higgins and myself tried to put yesterday and today, that on the one hand the Minister's desire to keep the gardaí out of private relationships is making exempt from criminal liability a large range of people who have absolutely no right whatever to put their feet across the door of any house or vehicle, while on the other hand this desire to keep the gardaí out of private relationships is not being effected by reason of the fact that he is including in the definition of "owner" only one compassionate category, namely, people who were tenants but have ceased to be tenants. He is not putting in that privileged situation a large range of other persons—permissive occupiers whose permission has been withdrawn, licensees whose licences have been withdrawn, guests who were living in a house owned by a tenant protected by the Rent Restrictions Acts who have stayed on there and barricaded themselves in after the death of the tenant, and so forth.

These are all relationships not far distant from that of the landlord and tenant relationships and they are not within the artificial definition of owner, so that, in spite of the Minister's desire to keep the gardaí out of private relationship matters, the gardaí are to be brought into these private relationships unless the Minister changes his mind between now and Report Stage. These weaknesses seem to us to be substantial weaknesses in section 1.

I repeat that we have in no way with intent, malignant or otherwise, or out of party political feelings, tried to hold this debate up. We regret that it has taken a day and a half to get as far as the end of section 1 but our feelings about this, and particularly the way in which our honestly intended points of view have been met from the far side, leave us with no alternative but to oppose the section.

Mr. Alexis FitzGerald

I should like to add a few words to what Senator Kelly has said. Despite what has been said by the Minister and on his behalf, the judgment which is being made here is on the problem he has told us about in regard to keeping the police out of civil proceedings and the exposure of people to criminal liability who are not at present liable. This judgment is wrong, and to expose so many people as are now exposed to liability by virtue of the failure to accept the amendments Nos. 7 and 10 in Senator Kelly's name, is a mistake.

At the same time, a very remarkable change is being made in the law, as I understand it, and the Minister, I do not think, answered the question which was put to him during the debate on one of these amendments as to what was the existing law or whether the Forcible Entry Acts were in force or had legal effect here or whether they were capable of being used for prosecution, which is a different matter altogether.

I understand the Minister to have agreed in the other House with the proposition of a Deputy there that these were law here. If they be law, then he is exempting persons who under the existing law have no right whatever to do the various acts which they will be permitted to do by virtue of the definition of "owner" under section 2. To do these acts at the moment would represent criminal acts on their part, even if it were decided that a prosecution could not profitably be made against them.

I recognise the difference in circumstances in England and in Ireland as regards prosecution under old statutes. The point which has been made that they are in Norman/French, and the question of proof with regard to an ancient statute, are principles of law which will come in aid of a prosecutor in such a situation. I do not want to say any more except that the Minister, in citing the case of the fee farm grantor and his right to enter into possession, may not be aware that, of course, this right, which apparently is conferred by document on the grantor, is not a right which entitles him at all to enter into possession of the property in question with due process of law; and that there are rights in all the persons under him to redeem any rent which may be due to him. These rights are conferred by statute on the person and he cannot be deprived of them, even if the rent is in arrear, but this Bill would enable him to do things which would not amount to crime but which under the existing law would amount to crime.

This is a very dangerous principle because there are truculent landlords whom some of us sometimes have to advise and who are difficult to hold back from doing things if documents seem to say that they are entitled to do them. One is able to tell them: "You cannot do these things because if you do you will be committing crime and will be putting yourself within the range of the criminal law." Now we will have to tell them that they will not be committing crimes. They may be putting themselves in a position of civil liability to the persons concerned but they will not be putting themselves into a position of criminal liability.

Mrs. Robinson

Like the other Senators who have spoken, I should like to oppose section 1 as it now reads. I do not want to delay the House by repeating my reasons for doing so, which I gave in substance in speaking to the last amendment. The onus must be on the Minister at this stage, before Report Stage, to clarify the position as to whether he considers this Bill supplants and repeals the Forcible Entry Acts or whether they still exist in the law, and if they exist in the law how he can reconcile the fact that under the Forcible Entry Acts any person defined under "owner" in the present Bill would be criminally liable for forcibly entering or occupying property.

The philosophy behind this is that even if a person has a right to property, a civil right which is not either disturbed or increased by section 5 of this Bill, he does not have a right to forcibly enter and occupy. He would be criminally liable. How does the Minister propose to reconcile the changed philosophy in this new Bill with the existing law? If he proposes to repeal it, will he bring in a Schedule stating the Acts that he is going to repeal? If this is the purpose of it, what has been the change of attitude of the Government which has brought them to the point of exempting a large number of people—owners, people with any estate or interest in land which is very widely defined under the Bill, and people with the permission of the owner—from criminal liability under the Forcible Entry Acts? What is the logic of this when we have, as I stated last night, a regular police force, when we have the Garda Síochána and the proper organs for forcibly ejecting people from property who are wrongly there?

I cannot see how in 1971 the Government would propose to introduce the new principle of allowing owners to forcibly enter property without incurring any liability when under the existing law they are criminally liable if they do it. I cannot see that there is anything to be gained from allowing owners, who are very widely defined, or people with the permission of the owner, to forcibly enter property. This is something which we should not welcome in our society. I do not think it will lead to any stability in this society. For these reasons I shall be bringing in amendments to this effect on Report Stage and I am opposed to section 1 as it reads.

Mr. Boland

Not having any legal training whatsoever, I hope I will not come under the baleful eye of those who made some remarks concerning people with formal legal training in the course of this discussion. I had assumed that section 1 was nothing more than a definition and exemption section. Looking at the Bill and realising that it is "A Bill entitled an Act to prohibit Forcible Entry and Occupation of Property and to provide for related matters", in my innocence I thought that the discussion of section 1 probably would not take very long. Having listened to a fair part of the discussion yesterday and today and remembering the definition which the Minister gave of "forcible", it now appears to me—and I may be in the Minister's company here; he mentioned that he was, perhaps, a very stupid man in this regard and, perhaps, there are two of us in the House feeling that way—that the Minister by his definition yesterday of "force" seemed to exclude from that anybody who entered a property through an open window or through getting the owner to leave the property by way of a trick and then entering into it himself and closing the door; or anybody who went along and opened the door of somebody else's property which his key would happen to fit.

Having listened to the Minister define all that so very clearly, I am just wondering how he is going to get at the subversive groups which he professes he wants to get at and prevent them from forcibly entering property, as has been taking place. As far as I can see, these groups and other people will to a large extent be able still to enter into somebody else's property and will not at all come within the Minister's definition of "force" or "forcible".

Having listened to Senator O'Higgins and Kelly saying that subsection (3) exempts from this Bill anybody who enters into property with the permission of the owner, and realising that "owner" extends to a wide variety of classes, it struck me that very often in this city the ground landlord of substantial properties is somebody who has come into possession of these ground rents over the years. As often happens now, ground rents can pass on from the person who owns them to the most extraordinary people because of the fact that there are not very many dependent relatives living. I envisage a situation, which I do not think is so far-fetched, where somebody might discover that he possessed quite a number of ground rents which had been left to him by an uncle or a distant relative. That somebody might be a person who is active in pressing for social reform or he might be somebody who has absolutely no interest in ground rents whatsoever.

It might be far easier for subversive organisations to get permission from an owner of that type than the Minister seems to envisage. I do not see that the Bill, when enacted, will have a very happy time if the definition section is, as Senators Kelly and O'Higgins, Alexis FitzGerald and Robinson seem to feel it is.

In connection with subsection (1) paragraph (b) of section 1,

"land" includes—

(b) land covered by water

I presume that the paragraph is included so as to take within the scope of the Bill activities which are commonly known as "fis-ins". While I am not a fisherman, I must honestly confess to having a fair amount of sympathy with the people who have staged protests in the recent past in connection with fishing rights on lakes and rivers in various parts of the country. Many people feel that the lakes and rivers of the country ought to be made freely available to those who want to fish in them.

I should like to clarify whether the Minister, on behalf of the Government, is by including this paragraph stating that the present position in relation to fishing rights should continue. I should like to remind the House that from very many quarters there has been a call for a change in the law in relation to fishing rights. As far as I know, a commission, established by the Government to look into the whole question of rights on the waterways in the country, is at present sitting. To my knowledge at least five local authorities have called upon the Government to nationalise the lakes and rivers and make them freely available to the people. Bearing all that in mind and the fact that the Government have never up to now said they disagreed with this aim—the furthest they have ever gone was when a former Minister for Agriculture and Fisheries said that he felt, at that time, it would be too costly a procedure—are we to take it now, by the inclusion of paragraph (b) in subsection (1) that the Government are happy to see the status quo in relation to lakes and rivers continue and do not envisage in any way changing the set-up?

I have no personal interest in this matter but I think there is a great amount of validity in the claims of those who say that fishing rights should be made fairly freely available to the people of the country generally. I am rather upset to see "land covered by water" included in this definition. Even when protests have been staged in relation to this, they have never been protests which have deprived the owner of the fishing rights that he at present enjoys. While they may have been a nuisance for an hour-and-a-half or so they have not in any way interfered with the rights of the owner to continue to exercise his rights in connection with those rivers.

I am a little sorry to see that, apparently, the Government have decided to continue the present situation and not to even await the report of the committee of inquiry which was set up, I think, by the Inland Fisheries Trust to look into this whole matter. Perhaps the Minister will explain, if he is in a position to do so, to the House whether the inclusion of paragraph (b) is an indication that the Government want the present situation to continue indefinitely.

Mr. McGowan

In this section the same principle must apply however much we would sympathise with those who are forced to the point of taking unlawful action. I would refer, in particular, to a situation which we have in Donegal which is certainly affected by this section. I do not see how anyone could exclude the provision "land covered by water" because it is the very same principle that will apply right through. An article published in the Derry Journal of 6th August, 1971, reported a fish-in on the River Finn on the previous Sunday which was organised by the Donegal branch of the National Waterways Restoration League. These are a group of people, which I do not wish to name here, who have been prominent in promoting other forms of strife such as advocating the non-payment of rents, demonstrating against the change in the unemployment benefit and various other matters. These people have always been to the forefront in agitating and advocating strife. In other words, they are cashing in on the misfortunes of any particular section of the community. I quote from that article:

It is the rivers and waters today; It will be the mineral resources and the land tomorrow.

The intention and the principle is just the same; break down the law at any cost. I do not see how we can exclude this principle when applying to the waters and rivers because those people will only use the people who are in some little dilemma. I sympathise with the people who own land adjoining the River Finn in County Donegal and, indeed, any other waterway that is owned by an absentee landlord or a man who is living in a castle quite near to the river. I sympathise with the landowners who have land adjoining such rivers and who are not permitted to fish on the waters of the rivers but I do not think we can allow people to come in and establish their own code of behaviour. There are other ways of doing so and if we were to allow this practice to continue there would be no limit to it.

It is exactly the same situation where you forcibly enter a house or forcibly enter a man's land. The same principle applies right down the board. It would be a great pity if we were to allow people to be used in this way. However genuine the case one could make on behalf of the people who find themselves in a difficult situation like this, there should be no question of excluding this provision here. There is no end to the extremes to which such people would go.

I was very interested in the Minister's speech. He covered the possibility that one could see applying to their local problems. He clearly put it beyond doubt for me that the section of the people that were misfortunate in any particular case was all too often used by a Fascist group who set themselves up to take advantage of every situation that could arise. I am holding on for legislation that will restore the waterways, rivers and fishing rights to the people who have land adjoining the rivers and waterways in the country. I am hoping for legislation that will make this problem non-existent in the future. While I am very interested in, and sympathise greatly with, the people who are forced to have a fish-in or to forcibly enter or take control of waters of rivers, I would say to them: "Do not allow yourselves to be used because this is not the way to achieve what you want to achieve." All too often it should be easy to see that people engaged in this type of agitation are only very temporarily interested in their problem and that it will be somebody else's problem tomorrow.

I do not wish to say any more on the matter except that, while I sympathise with them, I feel the principle cannot be bent for one section in favour of another.

Question put.

The Committee divided: Tá, 29; 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.
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.

Níl

Boland, John.
Butler, Pierce.
Desmond, Eileen.
Farrelly, Denis.
FitzGerald, Alexis.
Fitzgerald, Jack.
Horgan, John.
Kelly, John.
McDonald, Charles B.
O'Brien, Andy.
O'Brien, William.
O'Higgins, Michael J.
Owens, Evelyn P.
Prendergast, Mícheál A.
Reynolds, Patrick J.
Robinson, Mary T. W.
Russell, G. E.

Tellers:— Tá: Senator Brennan and J. Farrell; Níl: Senators Horgan and Mrs. Robinson.

Question declared carried.

SECTION 2.

Amendments Nos. 10 and 11 not moved.

Question proposed: "That section 2 stand part of the Bill."

Mr. Alexis FitzGerald

I have no intention whatever of repeating anything I or anyone else on this side said on section 1. What was said in regard to that section pretty well covers what is to be said on this section. The same goes for the subsequent sections. There may be other Members of the Seanad who hold views on that that are different from my view.

I just want to make two points and it is as appropriate to raise them on this as on any other section. On Section 1 the Minister was asked if he regarded these ancient statutes as still having the force of law. He has not yet replied, either on an amendment to it or in the debate on the section itself. It has been put to him that if, as I think he did in Dáil Éireann, say that he did so regard them that it would be proper that they should be repealed. I am only repeating that as a preface to something else which has not been said and which should be referred to in relation to section 2.

It surprises me that the provisions of the Summary Jurisdiction (Ireland) Act, 1851, Section 8, are apparently to remain unrepealed or repealed by implication, if such be the case by the provisions of this Bill, and of this section in particular. If the House will bear with me, I shall read, fairly fully, the provisions of the particular section:

... (1) Any person who shall wilfully trespass in any field, garden, pleasure ground, wood, plantation, or other place, and shall neglect or refuse to leave any such place after he shall have been warned to do so by the owner, or by the caretaker or servant of the owner, or by any person authorised in that behalf by the owner.

(2) Any person who shall again trespass in any such place within three months from the time in which such warning shall have been so given to him ...

shall be subject to certain penalties, which are very light and which provide for imprisonment if they were not paid.

There is a proviso to this section which would seem to require an amendment by more than implication, and I do not think that there is anything in this Act which, by implication, necessarily removes the benefit given by this proviso of the Summary Jurisdiction (Ireland) Act, 1851. It is a reminder of the persons for the benefit of whom Acts were being enacted in 1851. It continues:

Provided always that nothing herein contained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to go into or upon any such place, nor to any trespass (not being wilful and malicious) committed in hunting, fishing, or in the pursuit of game, ... ... but nothing herein contained shall prevent any person from maintaining any civil action or suit for any such trespass instead of proceeding under this Act.

It is reasonable to ask the Minister if it is a deliberate decision that he will leave unaltered what is undoubtedly at this moment the law of the land with regard to trespass by the provisions of this Bill. The trespass he refers to is trespass which is in the nature of a crime, although it does not extend to land so defined as to take in the inclusions within the definition of land in section 1, subsection (1). Is it a deliberate decision to leave this section unamended? If he would deal with that, in his own good time, would he also, perhaps, deal finally with the question as to why the ancient statutes are not being repealed? If I understand the law correctly, they have still the force of law, are agreed by the Minister and the Attorney General to have the force of law, were agreed by the Attorney General whose opinion he cited in 1955 to have the force of law, and merely in the practical judgment of the persons who have the duty of administering justice here are not appropriate in Ireland although they are appropriate in England to ground proceedings for offences thereunder.

Mrs. Robinson

I reiterate what I said before about the change in the philosophy which is evident in the section so that it is now not to forbid forcible entry and occupation so much as to permit forcible entry and occupation by certain persons, by a person if he is the owner of land or a vehicle and if he is not the owner, if the person does not interfere with the use or enjoyment of the land and leaves with all reasonable speed or enters in pursuance of a bona fide claim of right. I would agree with Senator FitzGerald —and the Minister appears to agree with this—that under the existing law it is an offence for an owner forcibly to enter property even if he has a right to possession. We should not depart from this. This would not mean that there would be a clogging of the courts. It would not mean that there would be any particular rush to bring criminal prosecutions in the field of landlord and tenant that is not happening now. In England under the law existing there it is a criminal offence for an owner to forcibly enter and occupy his land. There is no reason for departing from this and to grant this enormous exemption. Therefore, I propose on Report Stage to bring in amendments to that effect, because I am not satisfied that any case has been made for a departure from the Forcible Entry Acts. Acts. I assume that, if they are not to be expressly repealed, they will exist in the law; there is a conflict in principle and I do not see even from the Minister's own logic that this Bill is directed against subversive groups, why there should be an exemption for people who either have an estate or interest in property themselves or who have the permission of somebody with even a remote interest in the property.

Therefore, I am not satisfied with the definition of the offence of forcible entry of land or a vehicle as set out in section 2. It is purporting to re-enact the idea of forcible entry. It is legalising forcible entry in many circumstances where at present it is not legal. I do not see any justification for that because it is condoning private violence. We should not be condoning private violence in Ireland in 1971.

Mr. O'Malley

I should like to deal with these medieval Acts on which great emphasis is being laid. I am asked whether or not they are in force. I presume that means are they in force so far as I am concerned, because it would ultimately be a matter for a court to decide if they were in force.

I cannot express any opinion on this. So far as I can ascertain that is also the view of the Attorney General. It is a matter of some doubt. The Attorney General's view is, as it was the view of all his predecessors since 1954 at least, if not before that, that whether they are in force or not is purely an academic question, because they are quite unenforceable and are of no use to us. They may be able to use them in England but they could not be used here. It may be no harm to consider some of the aspects of some of these Acts.

The first one was passed in 1381. I am quoting from Russell on Crime, 12th edition, page 280, and following pages. The author cannot quote from the Act because it is not there. He quotes from chapter 8 of Ruffhead's Edition of the Statutes. Ruffhead's Edition translates the statute of 1381 into English of a type as follows:

The King defendeth that none from henceforth make any entry into lands 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 therefore be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the King's will.

I should hate to be trying to operate on that in the district court in any one of dozens of places. That was found to be defective in certain ways. Russell states that the statute gave no speedy remedy, leaving the party injured to proceed by indictment, and made no provision at all against forcible detainers. Accordingly it was found necessary to make it triable by justices or triable summarily and to extend it to forcible detainers. The Statue of Forcible Entry, 1391, Chapter II of the 15th year of Richard II, enacted:

that if complaint of forcible entry into lands and tenements, or other possessions whatsoever cometh to the justices of peace or to any of them, the same justices or justice take sufficient power of the county, and go to the place where such force is made, and if they find any that hold such place forcibly after such entry made, they shall be taken and put in the next gaol, there to abide convict by the record of the same justices or justice until they have made fine and ranson to the King: and that all the people of the country, as well as the sheriffs as other, shall be attendant upon the same justices to go and assist the same justices to arrest such offenders upon pain of imprisonment, and to make fine to the King. And in the same manner it shall be done of them that make such forcible entries in benefices or offices of holy church.

I wonder was the draftsman of 1391 criticised for being a bit vague at times. The chief effect of that is that the justices must go with sufficient power of the county, which, I take it, means gentlemen at arms or some such. They must go, not to a court or to a town, but to the place where the force is. The justices of the county, with the force of the county with them, must attend at the premises, must inspect the force that is there shown and must satisfy themselves and, if they are so satisfied, they must then remove the person making the force to what is described as "the next gaol there to abide convict by the record of the same justices".

Mr. O'Higgins

That bit would appear to be unconstitutional now.

Mr. O'Malley

That is what struck me, because I think we are under an obligation to hold our courts in places specifically designated as such and they must be held in public. I doubt if the Statute of Forcible Entry of 1391, whether or not it is in force, is usable. It clearly conflicts with the whole basis of our law. Where do the justices, when they gather together, raise what is described here as the force of the county?

There were defects found in that statute, as indeed might be expected, even at that time and Russell says:

This statute gave no remedy against those who were guilty of a forcible detainer after a peaceful entry, nor against those who were guilty of both a forcible entry and a forcible detainer if they were removed before the coming of a justice of the peace, and it gave no power to the justices to restore the party injured to his possession, and did not impose any penalty on the sheriff for disobeying the precepts of the justices in the execution of the statute. It was, therefore, found necessary to provide by the Forcible Entry Act of 1429, after reciting the above defects of the Act of 1391, that it should be confirmed and extended to forcible detainers, and it was enacted as follows:

Though that such persons making such entry be present or else departed before the coming of the justices or justice, not withstanding the same justices or justice, in some good town next to the tenements so entered, or in some other convenient place, according to their discretion, shall have or either of them shall have authority and power to inquire, by the people of the same county, as well of them that make such forcible entries into lands and tenements as of them which the same hold with force, and if it be found before any of them that any doth contrary to this statute, then the said justices or justice should cause to re-seise the lands and tenements so entered or holden as afore, and shall put the party so put out in full possession of the same lands and tenements so entered or holden as before.

It continues to provide at great length about what the duties of sheriffs shall be et cetera. The Act is confirmed by the Forcible Entry Act, 1588, but with an interesting proviso to it that

no restitution upon any indictment of forcible entry, or holding with force be made to any person or persons, if the person or persons so indicated hath had the occupation, or hath been in quiet possession, by the space of three whole years together, next before the day of such indictment so found, and his, her or their estate or estates therein not ended or determined.

The meaning of this, as I understand it and as Russell explains it subsequently in ordinary English on page 287, is that if somebody goes in by forcible entry and remains by forcible occupation but succeeds in remaining for three years, he has acquired—I will not say a fee simple because I do not know that it is a fee simple—a title as against anyone who seeks to put him out. Our Statute of Limitations of 1957, in so far as what is commonly called a squatters' title to land is concerned, prescribes a period of 12 years but it presupposes that the occupation is, as far as I can remember, nec vi, nec clam, nec precario. Of course forcible occupation for three years would be very much with vi and without precario. It seems to me rather ludicrous that we should seek to enforce an Act that is so clearly in conflict with our own views on the occupation of property or on the acquisition of title by the occupation of property. The Act of 1588 is clearly in conflict and very seriously in conflict with the Statute of Limitations of 1957 and with the earlier Statutes of Limitation on which that was based, because the 12-year period was not altered so far as that aspect of it was concerned by the 1957 Act.

That is the bulk of the English law. The first three Acts were applied to us, as I understand it, by Poynings' Act. It is not altogether clear as to whether the 1588 Act was subsequently applied. My recollection is that Poynings' Law would have been prior to 1588. It is not clear whether the 1588 Act applies to us or not, but in any event there are two pre-Union Irish statutes, the 10th of Charles I, Third Session, 13th Chapter, in 1634, which is described briefly as an

Act explaining certain aspects of the English statute of 1429 and enabling restitution of property to be made to tenants for terms of years whose land is forcibly entered or forcibly detained.

The significance of that is that all the English Acts applied only to freeholds. They did not apply to leaseholds, which would have become common by the 16th century in England and presumably here shortly afterwards in so far as Dublin and other cities were concerned. There is a further interesting Irish Act of 1786 which applies only to the city of Dublin and not to the rest of the country. I am not quite clear why the distinction arises. It says briefly that

Persons who forcibly take and keep possession of any house, land or tenement in the city of Dublin are to be deemed felons and are to be transported.

because transportation was the prima facie punishment for felony——

Mr. O'Higgins

The Minister might like to fall back on that one.

Mr. O'Malley

——at that time. As Senator Nash pointed out here last week, there was a very gracious exception made in this case because if the court thought that transportion for life to Australia, or wherever they went, was too severe, it was given an option of imposing a term of penal servitude of not less than three years and not more than seven. Any conviction under these Forcible Entry Acts in so far as the city of Dublin was concerned, at a very minimum, entailed penal servitude for three years and, at a maximum, entailed transportation for life.

I have given a fairly reasonable summary of the six Acts which have been referred to or would appear to be the Acts in question. I again give it as my opinion, for what it is worth, and I give it as the Attorney General's opinion which is worth a great deal more, that one cannot be satisfied that they are or are not technically in force but that from the practical point of view they are quite unenforceable and it would be the height of foolishness to seek to enforce them.

If the House considers the exposition that I have given of the contents of them, brief as it had to be, it will agree that it would be the height of foolishness to try and enforce this kind of thing, particularly if you have forcible entry or squatting of some kind in the city of Dublin and you prosecute the people involved or purport to prosecute them under the various earlier Acts, as amended by the Act of 1786, which presumably you have to do because it is the one that relates specifically to Dublin. If the person is convicted, he cannot be convicted in the district court because it is a felony, and would have to go on indictment. Assuming that he is convicted, that he is technically guilty of it, it is putting a judge in a ludicrous position to ask him to impose a minimum of three years penal servitude on someone who broke into or barred himself into a house. If it were conveyed to a jury, although that would be improper, that if they convicted the defendant he would have to get at least three years, the jury, one feels, would strain a point and make sure that they did not convict him.

With regard to the Summary Jurisdiction Act of 1851 I am aware of the existence of the section in question in relation to trespass on land. It is not intended to repeal that. I would regard the provisions of this Bill as complementary to it, not necessarily in conjuction with it, but they are certainly not to be taken as repealing it. I do not propose expressly to repeal that and I do not think it is repealed by implication. It basically applies to trespass on agricultural land or trespass in pursuit of game on agricultural land. It was never envisaged that it would deal with this sort of situation and the penalty is very small. It was, I think, 10s. It has been increased to 40s but it is still rather ridiculous.

With regard to the six Forcible Entry Acts which may or may not be in force, my view on them is that if and when this Bill is passed whether they are in force or not is even more academic and I would propose to have them repealed in a Statute Law Revision Bill which is the appropriate place to repeal provisions of that kind. My view about them is that they are so archaic, that they are subject to such bizarre requirements and the penalties in them are so grossly excessive that I would not encourage the Attorney General to use them and the Attorney General, as well as his two or three predecessors, has already decided that he would not use them. I understand that has been the direction given in 1955 and agreed by subsequent Attorneys.

Mr. O'Higgins

I just want to ask the Minister a couple of questions on rather a different point on section 2. I do not intend to go back on this question of definition of owner. The House has agreed to accept the Minister's definition in section 1, but am I not right in supposing that in section 2 the Minister intends that the reference to owner here will be an owner who is lawfully entitled to occupation? If that is so, would it not be a possible way around the difficulty the Minister has referred to in earlier discussions if in section 2 he were to refer to the owner lawfully entitled to occupation both in paragraphs (a) and (b)? I do not think it weakens his definition in any way. It simply limits it so far as this section is concerned by a reference to a particular class of owner, namely, the owner lawfully entitled to occupation.

Mr. O'Malley

Senator O'Higgins made the point at some length this morning that of necessity the definition of owner has to be so wide. The sort of people that one would not properly regard as owners might well try to avail of the exemption or exclusion in the Bill. The examples given are possible in the technical sense. The sort of people to whom Senator O'Higgins and others have been referring could, if they went to sufficient lengths, avail themselves of this loophole. I believe that the sort of people we are concerned with have no desire to do that, that they will not do it. There is no amendment there now to section 2 that covers that point and I feel that in principle it is wrong to have a qualification on a word in section 2 when that same word is not qualified in other sections. But I will go this far with Senator O'Higgins that if I find that after this Bill has been in force for some time, that this sort of people are trying to avail of that particular loophole, I most certainly will take whatever steps will then be necessary. If I were to take the steps now to close the loophole I would be increasing the problem in another way. While Senator O'Higgins's point is valid up to a point, in a very technical way, what he fails entirely to take account of is that, if I acceded to his request to close that loophole and not to give these various people the exclusion or exemption which they would enjoy as things stand at the moment, I would create a far greater problem on the other side of the line.

If, for example, I had brought in the Bill the other way around, that this loophole was not there but that consequential difficulties on the other side existed as a result of my having closed it, I have no doubt that Senator O'Higgins would get up here—which he would be perfectly right to do—and would spend a long time telling me that I had created a problem on the other side and that I should amend that; I would then have to leave the loophole there. The furthest I can go with regard to it is that, if a spate of buying ground rents by subversive organisations takes place or if fee farm grantors and their associates start to mess up the Act by employing as their agents and employees members of subversive organisations, I would undertake to take steps at that time to see what we could do to close that loophole without creating the other much more serious difficulty, the practical and immediate difficulty of involving the Garda and involving the criminal law in purely private, civil disputes.

Mr. O'Higgins

The Minister apparently is going to put us to a lot of trouble to get an amendment to this Bill. Apparently if we are prepared, in the words of section 4, to encourage or advocate that members of subversive organisations should act in a particular way, then in those circumstances, when the Bill has been in operation, he is prepared to come back and amend it.

Mr. O'Malley

If the Senator encourages or advocates, he himself will be caught under section 4, so he had better be careful.

Mr. O'Higgins

It would be a lot simpler if the Minister did not make us travel the hard road and seek an amendment to the Bill in that way. But I do not think the Minister need necessarily fear that. Possibly he did not fully grasp what I was suggesting. What I am suggesting now does not involve an alteration in the definition of "owner" as contained in section 1. It would not alter at all the non-application of the Act as contained in subsection (3) of section 1, so that I do not think the difficulties the Minister sees would arise. In other words, the definition of "owner" would still be there, would still be broad, and would still extend to anyone having an estate or interest. Subsection (3) of section 1 would still provide that nothing in this Act would apply to entry or occupation with the permission of the owner. All I am suggesting is that it should be made quite clear in section 2 that the particular owner referred to there is the owner lawfully entitled to occupation. It is clear that is what is intended, but unfortunately by reason of the fact that you have this very extended definition of "owner" the intention of section 2 could easily be defeated, in that section 2 also would be extended, where it is not intended to be extended, to various other persons. For example, if you take paragraph (b), section 2 provides that

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

(a) he is the owner of the land or vehicle, or

(b) if he is not the owner, he does not interfere with the use and enjoyment of the land or vehicle by the owner...

Obviously that means that the owner is entitled to occupation. It does not mean that he cannot interfere with the use and enjoyment of the land by some remote superior interest who is not entitled to occupation. Likewise, if we continue that paragraph—

if requested to leave the land or vehicle by the owner...

That clearly means by the owner who is entitled to the occupation. It does not mean that if somebody with some kind of fractional, remote interest, or his agent, asks the person to leave and he does not do so, disregard of the request turns the act into one of forcible entry.

All I am suggesting is that, for the purpose of this section, without in any way interfering with section 1, that cannot be done. It should be spelled out that any person who forcibly enters land, et cetera, shall be guilty of an offence unless he is the owner lawfully entitled to occupation of the land. If he is not such owner, then he is requested to leave by the owner lawfully entitled.

Mrs. Robinson

I was glad that the Minister in his intervention came round to considering the early statutes on forcible entry. He gave us a very learned treatise on them and he concluded by saying that he was in some doubt, or that there was still room for doubt, that they were still operative. I would be inclined to think that they were. I think the Minister will agree with me that old statutes like old soldiers do not die; they remain unless repealed. He went so far as to say that, because they were very old and because there were very considerable defects in them, he would propose to repeal them in a law reform statute as a more appropriate place.

I must put it to the Minister that the most appropriate place to repeal statutes of forcible entry is in a statute of forcible entry.

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

Mrs. Robinson

As I was saying before lunch, I welcomed the Minister's intervention when he gave us a discourse on the earlier forcible entry statutes and when he expressed the view that they were probably still law although not very easy to operate. I would agree with him here in the Irish context. He stated that he proposed to repeal the six statutes on forcible entry which he mentioned and would bring in statute law reform acts in due course to do so.

The point I was making before we adjourned for lunch was that it does not need a statute of law reform in order to appeal these offences. They are properly repealed in the Act which is replacing them and this is the normal practice. If the Minister does not intend to do so, I propose to bring in a schedule repealing these statutes on Report Stage. In order to stress that it is normal practice for this Government to do this, I should like to refer, by comparison, to the schedule of the Criminal Justice Bill, 1967, which has not yet come before this House. Part II of the schedule refers to English statutes applied by Poynings' Act, 1945——

An Cathaoirleach

May I interrupt the Senator for a moment? The Senator has stated that she proposes to bring in an amendment on Report State. The Chair feels that she may be starting to discuss such an amendment now. I suggest she should wait until her amendment comes up on Report Stage.

Mrs. Robinson

I am not so much discussing the amendment at this stage as making the point that although these statutes are very old— the Minister has, on an earlier Stage, said that they were written in Norman French and are very obscure—in the Criminal Justice Bill, 1967, the Minister was prepared to repeal earlier, and I would have thought much more obscure, statutes such as the Statute of Marlborough (1267), which was to be fully repealed, the Statute of West-minister, the First (1275), the Statute of Westminster, the Second (1285), the Statute of Breaking Prisons (1295), the Magna Carta (1297)—the whole statute except chapter 16—the Statute of Fines (1299), Articles on the Charters (1300), An Ordnance concerning Conspirators (1305) and I note in the first part of the schedule which relates to pre-Union Irish statutes that the intention was to repeal one of the statutes which the Minister mentioned this morning, namely, the Forcible Entry Act, 1786. Therefore, there was the intent to do this in the Criminal Justice Bill. It contained a long, long list—I have only read some of it— which runs into three or four pages of old statutes.

It is perhaps, unkind to refer to parliamentary draftsmen—I do not mean this to be unkind—but if a little more homework had been done in preparing this Bill the various statutes would have been named in the schedule and repealed. This is the proper Bill to repeal such statutes. I hope the Minister will accept an amendment to this effect or, even better, bring in an amendment himself to this effect.

That is only one part of the problem and only one part of an answer that the Minister was asked for. He has referred to these statutes and now says he will repeal them or they will be repealed. My submission is, therefore, that the only law we will then have on forcible entry will be the Prohibition of Forcible Entry and Occupation Bill, 1970. In this Bill there is a new departure and new principles in relation to who is exempted from forcible entry. This Prohibition of Forcible Entry Bill is wrongly named. It ought to be named the Permission of Forcible Entry and Occupation in Certain Circumstances Bill because for the first time since 1300 in this country—and this is something that has not happened in Britain—it will be legal to forcibly enter and occupy a building, if you are either an owner in a very broad sense or if you have the permission of an owner for the first time, it will be legal for people who have any interest in property to engage other people on their behalf to go in and forcible enter and occupy. They will not be criminally liable. There may be civil liability if undue force is used but there will not be criminal liability.

Senator Crinion and others mentioned on Second Reading that there was a necessity for a modern statute to reflect the law. This is not reflecting the old law. It is a fundamental change in exempting owners, widely defined, from criminal liability for forcible entry. If we are going to do this we have to do so on the basis of a completely new line of reasoning. We have to say that we will, in 1971 in Ireland, allow people to forcibly eject people even from their own homes, whereas in the 1300——

An Cathaoirleach

The Chair is worried about the way this discussion is continuing. It seems to the Chair that this matter has been dealt with at considerable length on section 1. While it arises also under section 2, repetition is not in order. Since there was a lengthy debate on the previous section, it would be as well not to go over the same ground on this section.

Mrs. Robinson

I think the situation has changed slightly. I do not want to repeat myself and it is not my intention to unduly delay the House over this matter. The situation has changed slightly in that the Minister has given an undertaking to repeal the existing law, which is the early Forcible Entry Acts, We will then have a situation where this Bill will be the only statute on forcible entry. It is drafted on the new principle that it will be permissible for——

An Cathaoirleach

What the Minister may do in the future does not alter the course of the debate at present on this Bill. The situation is as it was yesterday or the day before. The Minister may give undertaking for what he proposes to do in future years but it does not seem to the Chair that that alters the rules of the debate on this Bill.

Mrs. Robinson

I accept that it does not alter the rules. What I am saying is that it does clarify a position which we referred to last night and because the position has been clarified there will not be other statutes in existence. In other words, if the earlier Forcible Entry Acts will not exist, it means that certain categories of people will be exempt from criminal liability for forcible entry and occupation. This was not clear when we were referring to that matter before. It was not clear whether they would be still liable although it was very unlikely that prosecutions would be brought against them under the early Forcible Entry Acts. That is the point I wanted to make.

I am very unhappy with section 2 as it stands. It is creating the offence of forcible entry of land or a vehicle and this will be the only offence of forcible entry which will exist under our Irish law. As it stands, it will grant exemption to an owner or anybody with the permission of an owner. I intend, on Report Stage, to bring in an amendment to deal with this.

Mr. Horgan

I speak very much as a layman on this matter. First of all, I would be very grateful if the Minister could clarify for me the relationship between the law as it would exist under this measure and the law relating to landlord and tenant in the event of a dispute between landlord and tenant over the occupation of property to which both may have some claim. On a simple reading of section 2, it seems to me that a landlord will not now be forced to obtain a court order before ejecting somebody who is in possession, a tenant whose lease is expired even subject to section 1 of this Act. I would be grateful for an assurance from the Minister that this is not what is intended and that the rights of tenants under the Landlord and Tenant Act are intended to be in no way abrogated by section 2 of the Bill we are discussing at the moment.

It does not arise on this section. We are discussing section 2.

Mr. Prendergast

Section 2 does not make any difference to any section because it seems to me that the Minister has made up his mind not to accept any amendments.

An Cathaoirleach

This does not arise. There is no amendment before us at the moment. We are discussing section 2.

Mr. Prendergast

I am talking about section 2. If I am let go ahead I shall continue what I was saying. Section 2 reads:

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

(a) he is the owner of the land or vehicle, or

(b) if he is not the owner, he does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave the land or vehicle by the owner or by a member of the Garda Síochána in uniform, he does so with all reasonable speed and in a peaceable manner, or

Section 2 as well as other sections— and there are many sections to come— makes it obvious to me and to everybody that the Minister has no more intention of accepting any amendment——

An Cathaoirleach

It does not arise on this section.

Mr. Prendergast

I am entitled to say this. This House is being made a laughing stock. We are sitting here at the expense of the taxpayers of this country. What is the point of a second House if the Minister has decided, and he has so decided, that none of the amendments will be accepted?

An Cathaoirleach

None of these matters arises under section 2. I would ask the Senator to address himself to section 2 and to discuss the terms thereof.

Mr. Prendergast

Mr. Russell

In regard to a vessel in port that has been restrained due to, say, port dues, would an officer of the harbour authority be guilty of forcible entry, if he went on board to pin a notice on the vessel?

Mr. O'Malley

No. Subsection (3) of section 1 would cover him.

Mr. Horgan

In relation to paragraph (c) of section 2 I should be grateful if the Minister would give the House his understanding of this sentence. What is a bona fide claim of right? I may be told that this is for the courts to decide. I should like the Minister to give a personal opinion as to whether the constitutional guarantees of protection for the family would afford a homeless family a bona fide claim of right on vacant property.

Mr. O'Malley

Deputy Cooney put down that amendment in the Dáil and I accepted it. It was dealt with at some length in the debate on that amendment. Basically it is a case of where a person believes that he has a moral entitlement to be on the property—a belief which must of course be based on some recognised form of tenure, not necessarily amounting to a full legal estate. The ultimate decision first of all, as to whether it is a claim of right and, secondly, whether it is bona fide, is one for decision by the court.

Professor Kelly

May I add a footnote to what the Minister has said? He states that people who think they have a moral right to enter and occupy may get out under this exemption clause. I should not like the House to take the Minister's word for that. It is doubtful whether a court in this jurisdiction, or a judge sworn to uphold the Constitution and the law, would consider themselves free to take a moral right into consideration here and particularly not the kind of things that Senator Horgan has in mind.

There are parallels in the law regarding settlement of actions. The settlement of an action will only be upheld if the parties are really compromising something which is there or which they bona fide believe to be there but which is there in the sense that the law recognises that, were the situation as they imagined it, a proper case in law would exist. It may be that the Minister intends that homeless families of the kind mentioned by Senator Horgan should have an escape route via clause (c) but it is highly doubtful that an ordinary judge in this country would regard what I might call a political moral claim, in other words a moral claim based on a political tenet, as entitled to acquittal under clause (c). That point should be made because anyone who relies on this clause may be disappointed.

It has to be a bona fide claim of right having regard to the law of the land, not having regard to some political tenet or some half-political, halfmoral tenet, about the rights of a family to have a roof over their heads. I do not think that the average judge will be disposed to regard that as sufficient to exempt somebody under clause (c).

After the 11 or 12 months have expired.

Mr. O'Higgins

If you erect a fence to keep the cattle in.

Professor Kelly

In subsection (1), line 34, to delete "encourages or advocates" and substitute "incites".

Subsection (1) of section 4 would then read:

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

In later amendments, with which we are not dealing now, I propose the deletion of the rest of that section. I do so because I think that of all the sections of this Bill, which I regard as not a very satisfactory Bill to say the least, I think section 4 has rightly given rise to the most criticism and that there is a substantial need to press this type of amendment, even, if necessary, to speak at some length on it.

The reason why I propose to substitute the word "incites" for the words "encourages or advocates" is because incitement is a well-known concept in the criminal law. It is one with which the judges are familiar, it is one which has a reasonably precise meaning, and it is one which I consider to be perfectly adequate for the purposes of this section. Whereas the concept of "encourages or advocates" is not one which is very familiar to our courts and it is one which is only familiar in statutes such as the Offences Against the State Act or other Acts of that nature which are designed to deal with an emergency situation or with a wartime situation and where certain other aspects of freedom of speech and so on are sacrificed to the preservation of peace and security.

Therefore, I propose to argue that by substituting the word "incites" the Minister will lose no effectiveness in this section for the purpose for which he wants it and that he will gain in precision and in the acceptability to lawyers and to other people who have been very apprehensive about the effect of this. I shall also be arguing that if there are doubts—and I certainly would have doubts—about the constitutionality of the wording as it stands, then these would be removed by the substitution of the word "incites" for "advocates or encourages".

I should like to put forward this word "incites" as a perfectly adequate legal concept to get at the groups who incite the commission of either forcible entry or forcible occupation which the Minister feels it is required to control under the Bill. I would refer to the definition in statement relating to the offence of inciting in Archbold, 37th Edition, paragraph 4091, where at common law to solicit or incite another to commit a crime is indictable at common law even though the solicitation or incitement has no effect. In other words, in order to bring a successful prosecution for incitement the substantive offence, the forcible entry or the forcible occupation, would not necessarily have to take place. Incitement will lie for either a summary or an indictable offence and in very many statutes you have specific offences of incitement. I propose that we put in a specific offence of incitement in this case as the appropriate extension of the offences of forcible entry and forcible occupation under our law.

For example, you have the Incitement to Mutiny Act, an Act itself in 1797. Under the Offences Against the Person Act of 1861 you have inciting to commit murder with special penalties for it. Under the Perjury Act, 1911, you have inciting to commit perjury. This is a line of thinking with which the courts are familiar. It is the appropriate extension to catch the people who are not themselves actually forcibly entering or remaining in forcible occupation of a building, but who are inciting it, who are putting others up to it. This is the sense of a great deal of the reasons given by the Minister for this Bill. If so, I think that he can probably make this Bill acceptable to this side of the House without much difficulty if he would accept this amendment.

It is clear that a person may be charged with attempting to solicit or incite, and one can go so far as that in the extension. Therefore, I would argue that this is a much more acceptable terminology. I am aware that the Minister on Second Reading in the Dáil contended that "advocating and encouraging" and "inciting" were the same thing. I would disagree with him on this. I think "advocating and encouraging" are much wider and vaguer concepts which to my knowledge—and here I am subject to correction from either side of the House —have not been given any judicial determination here or in Britain, but have come in for judicial determination in the United States. I propose to look at some of the cases in the United States where indictments for advocating and encouraging were regarded as extremely vague, regarded as very dangerous because of the wide scope of the wording and were in no sense equated with incitement.

I should like to begin by looking at a case in which the general underlying principle of the American courts in relation to the concept of advocating and encouraging—and in the United States it is only found in seditious Acts and Acts which relate to conspiracy to overthrow the United States itself. This is the type of Act in which you find it and not in an Act regulating offences against property, as this is. A case to which I refer is of Schenck v. The United States in 1919, 249 United States, or as I am reading it from Cases on Constitutional Law by Paul Freund, at page 1697. In this case Mr. Justice Holmes laid down the principle which the courts adopt in relation to advocating or encouraging, and he stated:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.

This text of Mr. Justice Holmes of the clear and present danger, I would submit, is by no means implicit in the wording under section 4.

A person who encourages or advocates the commission of an offence under sections 2 or 3 of this Bill shall be guilty of an offence. There is no question of a direct relationship between advocating and encouraging and the likelihood, the possibility or the fact that the substantive offence of forcible entry or forcible occupation has taken place. There is no suggestion in section 4 that the advocating or encouraging would relate to either a specific person or a specific group of persons. It could be in extremely vague and extremely general terms and still fall within the advocating or encouraging under the terms of subsection (1) of section 4 of this Bill.

In relation to this it is relevant to see what are the conflicting interests here. I am aware that in the Dáil—I do not want to refer to the debate there—a substantial amount of time was taken up pointing out the possible dangers to freedom of expression inherent in such broad terminology and in such a general statement of a criminal offence. There is a potential conflict here and we ought to be extremely concerned to preserve to the full our freedom of expression in so far as it is reconcilable with public order and public peace.

In this connection I should like briefly to quote from another judgment in the United States Supreme Court in the case of Whitney v. California, 1927, US Supreme Court. I quote Mr. Justice Stanford in that case where, again, there was an indictment for a conspiracy under similar terminology. He said:

To courageous, self-reliant men with confidence in the power of free and fearless reasoning applied through the processes of popular government no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such in my opinion is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it. Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. Thus a state might in the exercise of its police power make any trespass upon the land of another a crime regardless of the results or of the intent or purpose of the trespasser. It might also punish an attempt, a conspiracy or an incitement to commit the trespass. But it is hardly conceivable that this court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross un-enclosed, unposted wastelands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgement of the rights of free speech and assembly.

I quoted at some length from that passage because it shows a judge's concern for the maximisation of freedom of speech and freedom of expression as the best upholder of liberty in a country and because I agree so firmly with the principles put forward.

I think I have said enough at this stage on the amendment at least until I hear the Minister's attitude in relation to the insertion of "incitement". I shall later be referring to the rest of the section. Because of the fact that it is possible to bring charges of conspiracy as well as incitement the statute, if this amendment was accepted, would be broad enough to get at the subversive groups, to whom the Minister has referred. It will be capable of getting at them by a proper implementation of the judicial process and not by an extension into this aspect of the criminal law of a concept which I would hope that we would either eliminate altogether or certainly confine within the narrow confines of legislation which relates to offences against the State or to emergency legislation.

Professor Kelly

The arguments in favour of my amendment will be much the same as the arguments produced by Senator Robinson so I will not go over them again. In ordinary speech "encouraging" or "advocating" are much weaker words than "inciting" and this is the reason why this section has given such fright and alarm to the Press. I want to make it clear that I do not think the Press have any special right to commit the kind of offences which are committed by the publication of words. I do not think any special sanctity attaches to them. At the same time, the Press has a vital part to play in the life of any free society here no less than elsewhere. When the Press becomes universally alarmed, as the Press here is, over the wording of this section, even though you or I might think such alarm is somewhat exaggerated and in some respects groundless, it would be fitting and seemly for a Government to take heed of it. I have already said at an earlier stage in this debate that I do not regard the Government as a parcel of tyrants only waiting for this Bill to pass before hammering the Irish Times and the Irish Press as well as Telefís Éireann into the ground. I prefer to accept that is not what is in the Government's mind.

At the same time, and I repeat this again, the intention of an existing Minister or Government is immaterial. The important point is: what is in the law we are now making? The words which the Minister proposes should be passed into law in this section are words at which the Press here, and virtually every member of the journalistic profession who has expressed himself, has taken alarm. That alone would be a good reason in prudence—I will put it no stronger than that—for a Minister or a Government to think twice and to ask themselves whether the evils, the clear and present dangers, they are trying to prevent cannot be equally prevented with another phrasing. The phrasing that I suggested, and that Senator Robinson suggested, is a phrasing centred around the well-known and well-used word "incite" of which there is a great deal of judicial explanation and not around the words "encourage" or "advocate" which are extremely general.

Much time was spent in the other House explaining the various meanings which "encourage" or "advocate" could have and the Minister became exasperated because he thought people were wasting time. It may be that the Minister himself would not think it right or proper to prosecute somebody for an encouragement of a vague or passive kind but we do not know what kind of Ministers we will have here in the future or what kind of party will provide them. Our anxiety must, therefore, be to make sure that we do not offer any handle or toehold to a tyrant in the legislation we pass. We should make it absolutely impossible, so far as we can do so, for any expression which we pass into law to be exploited in an unreasonable way. That is why I think it would be better if this section was redrafted in such a way that "incitement" took the place of "encouragement" or "advocacy".

When I was speaking on Second Stage, I drew attention to the fact that the Minister, in putting forward the idea of "encouragement" or "advocacy" in this section, had produced precedents or parallels from all over the globe except Ireland. I was able to show very simply, by producing one of our own statutes still in force—it has been in force for 32 years—that the concept is there, in theory at any rate, and it is evidently the statute from which the draftsmen of this statute copied several of their ideas. I shall not go back over that ground again but it is perfectly clear to me from this phrase, as well as from a couple of other elements in the Bill, that the Offences Against the State Act, 1939, was open on the desk in front of the draftsmen.

I was not here when Senator Nash spoke but I subsequently read his speech. He got the wrong end of the stick in regard to what I was saying. He thought that I regarded the existence of the Offences Against the State Act as a bad thing. He thought I was trying to make the case that anything which copied the Offences Against the State Act was self-condemned. That was not the point I was making. I think every society, as I have very clearly said, has to have a last card up its sleeve in the shape of something like the Offences Against the State Act. I do not complain about that at all. In fact, my complaint is to the contrary. The Offences Against the State Act and the clauses in it, which include this phrase, have not been used. When I look at the end which the Minister seeks to attain by means of this Bill I realise that, if I am to believe him, he is aiming at subversive organisations but I have to ask him how is it he never looked or does not seem to have looked at, let alone mention to either House, section 18 of the Offences Against the State Act which makes it the mark of an unlawful organisation to engage in, promote, encourage or advocate the attainment of any particular object, lawful or unlawful by violent, criminal or other unlawful means.

It is open to the Government, if it is faced with a subversive organisation which in the Government's opinion does these things, engages in, promotes, encourages or advocates the attainment of objects lawful or unlawful by violent, criminal or other unlawful means, to declare that organisation unlawful. I am not pressing for the persecution of two-and-a-half penny halfpenny bands of weak-minded teenagers and I am not pressing for the Government to persecute and suppress cruel little groups of people who come and go with the tide but if there are serious subversive organisations here that the Minister's advisers or the police can put their hands on, then the people are entitled to protection against them and I say they are entitled to the protection of the law, which is already there.

I want to know why the Minister has not used this law. It was in that context that I mentioned the Offences Against the State Act. I said to the House on the last occasion that this Bill would be more accurately described as an amendment, an extension of the Offences Against the State Act. I do not regard that as anything which is a necessary argument against the Bill. I simply say that the machinery which the Minister is trying to invoke is already present in a certain form which might very well be useful for this purpose. I do not see the necessity, as far as the organisations are concerned, of having this new Bill.

I want to qualify what I have said to some extent. On the whole, it is better to proceed by the individual and the crime rather than by dumping people all together in an unlawful organisation and proscribing or suppressing them. I think the latter course is a disagreeable one and I am not necessarily advocating it, but the Minister owes this House the explanation which he did not give to the other House, namely, to what extent he directed his mind to the possibilities which section 18 of the Offences Against the State Act offered him, and the reasons why he came to the decision not to invoke that clause of section 18 and to produce this Bill instead.

I should like to hear from him also, when the time comes, why, notwithstanding the fact that he turned his back on the Offences Against the State Act, he allowed his draftsmen to go to that very Act for some of the concepts which they have imported into this Bill?

Senator Nash was under the impression, when I spoke the other day, that I was using this Offences Against the State Act, which was passed at a time when there was a Fianna Fáil Government, as a stick with which to beat this Bill. That is not the case. Senator Nash got the wrong end of the stick in that regard. The Fine Gael Party voted with the Government when that Bill was passing into law. Senator Nash thought he had scored a grave point against me by producing earlier legislation passed by my own party in which the same phrase occurred. That is irrelevant to the argument. If anything, it strengthens my case. I never denied that such legislation might be there. In fact, I expressly said it might be there, but it is the only Act that I can find at the moment which is in force in this country and so far as I know the most recent precedent and it was in that context that I mentioned it. It would be more straightforward if the Minister had been advised to say in so many words that it had been used as a headline.

The Offences Against the State Act, in addition to the section of unlawful organisations, contains five or six other sections which speak of advocating and encouraging and make them offences of various kinds. As Senator Robinson said, I am not aware that these phrases have been subjected to close judicial examination. I say that subject to correction. I have not searched with absolute thoroughness the lower courts in this regard.

I may be wrong but I think I am correct in saying that there is no judicial definition at any rate on a high level of what exactly encouraging or advocating will amount to in this jurisdiction, whereas there are piles of judicial authority in this country and in the British jurisdiction which, so far as pre-1922 decisions are concerned, still bind us on the meaning of incitement. "Incitement" is a word that I would say has a narrower and a tighter meaning than advocating or encouragement. I believe that if the Minister were to accept an amendment either in the terms that Senator Robinson suggests or the terms that I suggest or some similar amendment, he would be taking the heat out of a large part of this debate.

I should like the Minister to appreciate this despite the fact that we have had hot words from time to time in the course of this debate. We on this side have not yet called him a Fascist or a Nazi. I think to use words like that about him or about the Government are exaggerated and wrong and they only weaken the case which could be made against them. I wanted him to try to meet as soberly as he can this point that so far as putting down subversive organisations is concerned he would be just as well off with the word "incite" as he is with the words "encourage or advocate" and in addition to that he would be defusing the alarm and despondency which his defence of these particular words has caused among the Press and the journalist profession.

Referring to other countries, as I mentioned on Second Stage, the word "encourages" is also found in similar contexts in, for example, the penal code of the State of New York, and the model penal code promulgated by the American Law Institute, which is a highly reputable body composed of judges of the United States Federal Supreme Court, judges of the various State Supreme Courts, professors of law and legal writers throughout America.

It was suggested by Senator Robinson that while the word "encourage" appears in these various codes and statutes in the United States, it applies only in cases of attempted offences against the State or towards the overthrow of the State. The only code that I have to hand is the New York Penal Code, in which paragraph 2034 refers to forcible entry and detainer and reads:

A person guilty of using or of procuring, encouraging or assisting another to use any force or violence upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a mis-demeanour.

Not alone is the same word used there as I am proposing to use in the Bill, but it is used in precisely the same context for precisely the same offence in the United States. I was assured in the Dáil and elsewhere that no other civilised country had any law which prohibited people from encouraging the violent or forcible occupation of property and so far as I can discover, there is no civilised country that does not have a law prohibiting the encouraging or advocacy of the forcible entry, or forcible occupation of other people's property.

There is nothing novel or sinister about the use of these words in section 4 of the present Bill. I am completely satisfied that the phrase "encourages or advocates" accurately and adequately conveys the concept which it is designed to convey, namely, that which is inherent in the existing common law offences of incitement and counselling or procuring. As I emphasised on Second Stage, a person would have to have the requisite mens rea, or of a different state of mind, in order to commit an offence under subsection (1) of section 4 of the Bill; in other words, the offence could not be committed innocently or by mistake. Furthermore, a person would have to set out to encourage or advocate another or others to commit an offence under section 2 or section 3 of the Bill. Merely to criticise the housing shortage or social conditions of particular sections of the community would not amount to an offence under section 4 and it is dishonest and misleading to suggest that it would.

I am sorry. I hope the Minister will not be disposed to withdraw this offer if we oppose the second two subsections of this section which raise a completely different issue. I do not want the Minister, if we do that, telling us that we are going back on some——

Tomás Ó Maoláin

No. He will not do that.

Professor Kelly

Right. We would like an opportunity to consider the Minister's offer, but I should like the Minister to consider whether it really is such a serious business if he waits until the end of October to bring this Bill back to the Dáil. It may be that, once he determined to do so, a couple of other amendments could equally quickly go back to the Dáil as well. For example, the amendment which Senator Robinson has promised us to repeal some of the old statutes which the Minister himself has undertaken to repeal.

If his information from the police genuinely is that, once this Bill is delayed, we will have an outbreak of squatting, then I would not oppose his proposal to put this off until a later date. I do not think he is likely to get this outbreak of subversive squatting because these organisations have been very quiet lately, and they have been quiet, I presume, because they consider it to be the best of their play not to get sympathy behind the Minister instead of behind themselves. I think, subject to correction by the gods, no great risk would be run if the Minister did wait until the autumn and bring this Bill amended in the way that he has now offered, the Bill itself and not another Bill, back to the Dáil with, perhaps, a couple of other amendments.

Dr. West

I am very pleased at the Minister's statement a few moments ago that something may be done to amend this section because I have no doubt that in his mind he really feels that the word "incite" means the same as "encourage or advocate," but this is a personal interpretation and, although I have no legal knowledge and I am speaking as a layman on this topic, I cannot as a layman agree with that view and I feel that the word "incite" is a much narrower and stronger word while "encourage or advocate" is wide and vague. It is important that we make every effort in this House to make our legislation as narrow and as tight as possible.

As Senator Robinson has pointed out, wide and vague terms of this nature in legislation are only justifiable when they occur in legislation which is specifically designed to deal with emergency situations in which the Government cannot allow themselves to be pinned down; they have got to give themselves freedom to deal with situations quickly and efficiently. The situation we are legislating for is not, as far as I understand, to be an emergency situation. I feel, therefore, that in this context we need to make our legislation as precise as we possibly can and, to me, there is a great difference in the force of inciting and the force of the words "encourage" and "advocates". The basic difficulty is one of personal interpretation and we have seen differences in personal interpretation. My worry is that someone whether a Minister, or some member of the judiciary, or whoever would be making the interpretation, would interpret these things in a very different way and this could lead to a great amount of trouble.

There is another reason why we must be more precise in our legislative attempts because, as society becomes more complex, our Government will be more and more a Government of the bureaucracy for the very reason of technical complications; it will be more and more difficult for lay people in the various areas to understand precisely what is at stake. More and more power will be transferred to the Civil Service—I hope that they will not abuse this power—and to machine type organisations. More and more information is going to be stored in the computer. Anybody who has any dealings with these machines knows the dangers inherent in this. It is essential that we get our definitions as accurate as possible, that we give the people who are interpreting the legislation as little rope for using their own judgment as we possibly can and that is why I am very pleased that the Minister feels he may be able to change this wording. I, as a layman, find the two wordings completely different and I would make a strong plea that this particular point be settled as soon as possible and certainly that would go a good way towards restoring our credibility in the usefulness of this Seanad debate.

Mr. E. Ryan

Senator West stressed the fact that he is a layman and, perhaps, I could refer him to a non-legal book which might reassure him to some extent about this vital question of whether or not "encourage" and "incite" mean the same thing. I have here a copy, the 1962 edition of Roget's Thesaurus of English Words and Phrases. This is one of the best known books on the English language and, as I am sure the House is aware, it is a collection of synonyms which the dictionary describes as words identical and co-extensive in sense and usage. On looking up Roget, the index under the word “encourage” gives a number of references and the very first reference it gives is “incite”. This is not a legal book but it is an impeccable authority on the usage of the English language. It would be difficult for any person who is bona fide concerned about whether these two words mean the same to remain unconvinced when this impeccable authority gives as the very first synonym for “encourage” the word “incite”.

Mr. O'Higgins

I will not take up too much time. First of all, while I appreciate the finesse with which Senator E. Ryan made his point he, no doubt, will appreciate that the question of the interpretation of what goes into this Bill is not one for Roget, or Senator West, or any layman but it is a question of it being interpreted judicially.

Like Senator Kelly I am not aware— I may be lacking in knowledge—that the phrase "encourage or advocate" has ever yet been in this country the subject of judicial interpretation. Offhand, for what my opinion is worth, it does seem to me that the word "encourage" used in an Act of Parliament is broader than the word "incite". To my mind, the word "incite" implies something positive or active, whereas "encourage" could be passive encouragement. It could be encouragement by silence. It all depends on what interpretation is placed on it. Certain fears have been expressed by journalists in this regard. I do not want to go into a long discussion on this in view of the attitude which the Minister has demonstrated in dealing with these amendments which, I think, was a very commendable attitude. It is due to him to say that. I was very glad to hear his approach to these amendments because the appeal I had intended making to him was the same appeal as I had made on Second Reading that, if the Minister and Senator E. Ryan are right, and if, in fact, there is no difference so far as the Bill goes, in using the word "incite" in substitution for "encourage" and "advocate", then the right thing to do is for the Minister to accept the alternative word "incite" and to satisfy those who are apprehensive about the use of the phrase "encourage or advocate".

The Minister has indicated now that he is quite prepared to do that but he presents the difficulty that if he were to do that in this Bill it would mean the Bill could not become law for four months. In fact, I think two months would be nearer the mark because the Dáil is due to reassemble on 27th October and there is no reason why we should not meet the same day. I feel quite confident that if this amendment is made by the Seanad now it is one which would be accepted in the Dáil without any great discussion.

The only thing which discourages me about the Minister's statement here this afternoon in relation to this matter is that it seems to demonstrate that Senator Prendergast was 100 per cent correct in his protest this morning when he made the case that the Minister will not accept any amendments. It seems to me to indicate that, although I commend the Minister for his willingness to bring in another Act to make this substitution, it is implicit in what the Minister said this afternoon that he is simply not going to accept any amendments from the Seanad for the reason that he thinks it would delay the coming into operation of this Bill.

If that is so, I find that attitude particularly discouraging and I would feel that the Seanad is serving no function whatever in continuing to discuss this or any other measure when the Dáil is in recess, if that is the Government attitude. I hope I am wrong in that. I hope the Minister will come back here and say: "That is not what I meant at all. What I meant is that I do not think this is sufficiently important to warrant delaying the Bill but if there are other amendments which are of importance or of a substantial nature, then I am willing to accept the amendments and go back to the Dáil."

Remember we have the Minister's undertaking and I know it was given in good faith that he will between this discussion on Committee and the Report Stage consider the question of the definition of ownership which is contained in section 1 of the Bill. I am hopeful, perhaps, I am naïve in this, that on Report Stage here the Minister will himself come up with a new definition of ownership. In any event, he will get an opportunity of discussing that matter again on Report Stage because I intend to put down an amendment dealing with this question of ownership. I do not want to spend too long discussing this in view of the Minister's attitude but I would ask him to consider that it is not a question of four months; it is a question of two months only.

In those circumstances he would certainly satisfy a great volume of the doubts that exist if he decided to accept one or other of these amendments and make the substitution—put in "incite" instead of "encourage or advocate". If the Minister feels he cannot do that, then I think it right to place on record my view that he is going at least some measure to try to satisfy people and to overcome the apprehension and sense of unease which certain sections, particularly certain sections in the Press, feel. He is going some distance towards easing that situation by his offer at least to take advantage of the first available opportunity that presents itself in legislation to amend this section by making the substitution.

Senators Kelly and Robinson and others who have supported these amendments will have done a good day's work in the Seanad even if we only get that far with the Minister.

Mr. J. Fitzgerald

I do not want to become involved in the debate on those three words, "encourage,""advocate" and "incite," because seldom has so much been said about those three words as there has been in the past couple of months. We have had various interpretations here of those words. We have put down this amendment to include the word "incite" and to delete the words "encourage or advocate" because the general public are concerned with this phrase. The words have a very different meaning as far as the general public are concerned. You can encourage people to do many things but to incite them has a different meaning. Section 4 is the section in this Bill that has caused more concern than any other section. It has caused concern to the general public and it has caused concern in regard to the freedom of the Press.

I was very pleased, and so I am sure, was every other Senator on this side of the House, to hear the Minister say that he has an open mind on this. But he built us up to let us down. He gave one the impression that he would accept the amendment and that he would take the Bill back to the Dáil when the Dáil reassembles in October but he thought that there would be quite a delay and he did not think that the delay of four or three months would be warranted. We are not so sure that the Minister intends to do what the movers of these amendments want him to do and what most people in this country would like him to do —accept the amendments and take the Bill back to the Dáil and have it passed there.

The Minister is concerned about the three months or 80 days delay that may elapse between now and the taking of this Bill back to the Dáil and having it passed.

It is no harm to remind the Minister and the House that this Bill was first introduced in January, 1971, that is eight months ago, and has been discussed and adjourned on and off since. I do not think there is any clamour or any concern among the general public whether they get this Bill next week, next month or next year or if they ever get it. I sincerely appeal and add my voice to the voices of the other speakers in asking the Minister to do what he appeared to indicate he would, and, that is, accept the amendments and take the Bill back to the Dáil. If he does that, he will certainly create a great amount of goodwill for himself, not only within the House but outside it as well.

Ruairí Brugha

Senator Fitzgerald has said that this section is the one that concerns him and members of his party most, and I believe that. It also happens to be the most important section in the Bill. It is probably the main reason for the Bill. This is a Bill which was considered by my party last year before it was brought to the Dáil. It was discussed fairly widely and numerous questions were put to the Minister on it before the Parliamentary Party approved of it.

Senator Fitzgerald has said that people are not anxious for this Bill, that there is no widespread concern and no need for it. When this Bill was being discussed, in Dublin alone, outside of private houses, there were more than 300 residences, mostly public authority houses, in forcible occupation. Senator Owens is shaking her head. That is the information supplied to me from officials whom I believe. At that stage the number of forcible occupations had risen from a few per month to 40 per month.

The object of this section is to protect people who are waiting in the queue for houses or flats from being exploited by extra-political elements who were exploiting them for their own political ends. The fact that the incidence of forcible entry has abated arises partly out of the amendment to the 1970 Housing Act, but it also arises, I believe, out of the fact that this Bill was made public. I can produce the evidence of individuals who would be able to substantiate that. The object behind the activities is to subvert ordinary civil order and to claim the right to allocate property, whether it is the property of a local authority or whether it is private property, to people who may need it, without any mandate whatsoever from any civil authority. It is to cope with that that this Bill was introduced.

The Minister is quite free to accept amendments if he so wishes. In dealing with the amendments that are before us here, let us look at the general atmosphere that we have had here, not in this House but in this country, in the past five or six weeks. We had a Bill introduced by a Government for the protection of ordinary people. We have had a very widespread attack on that Bill, some of which, I would concede, was quite genuine. This Bill has been opposed by such bodies as NATO, which is described as a tenants' association or people who are supposed to represent them; the Dublin Trades Council, Citizens for Civil Liberty, Sinn Féin, the Communist Party of Ireland, the Connolly Youth Movement, the Dublin Housing Action Committee, the Dún Laoghaire Housing Action Group, the Dublin Flat-dwellers' Association, Women's Liberation Movement, National Waterways Restoration League, Irish Humanist Society, Socialist Labour Party, Socialist Party of Ireland, Young Socialists, and so on.

Professor Kelly

And, I think, Deputy Haughey in describing them as a "mowldy" Government.

Mr. Boland

The Irish Independent and The Irish Times——

Mr. Killilea

Mao Tse Tung.

Ruairí Brugha

I shall come on to the newspapers in a moment. What I should like Members on the other side to understand is that when a democratic Government are being challenged in this way and when that Government are trying to protect the legal interests of ordinary people, they have to make a stand. They cannot run away. One of the factors that influenced me quite considerably— again, I can only refer to cases of which I know—is that people were afraid to go on holidays. I know this has been pooh-poohed. It is a fear that has been generated by allowing self-appointed groups to act in this way. It is the responsibility of any public authority to bring that sort of an atmosphere to an end in a free society such as we have here.

Acting Chairman

Will the Senator come to the amendment?

Ruairí Brugha

The amendments are mainly around the words "encourage or advocate" as compared with the word "incite". I am surprised at some of the things I have read in relation to what these words are supposed to mean. Fortunately for me I am not a lawyer, so I cannot interpret them in the way that some of the legal people can do. The Minister has indicated that at a later stage he would be willing to consider them in order to allay anxiety. My view is that it is anxiety, but it is also misunderstanding, that journalists should have drawn the conclusion that the wording in section 4 was meant to be interpreted in such a way that nobody could comment or report on any action or any word used. To me that is a complete misinterpretation of the Bill. My reading of subsection (1) of section 4

You would be inciting him.

Ruairí Brugha

Is that inciting? Senator FitzGerald has said it is the same as encouraging. To advocate means to me to promote and to recommend. I do not think any journalist in the country would claim the right to say to anybody or to write in any article: "Yes, it is all right to take over public authority flats and houses." I do not believe that for a moment. I believe it is a complete misunderstanding in relation to section 4 that it would be the intention to use this Act in any way against any form of media which reports or would report on anything that might take place. Nor can I see how it could be used against any newspaper which would criticise as strongly as it could criticise any inadequacy in our housing situation. That is my interpretation of what "a person who encourages or advocates the commission of an offence" means. If the Minister is willing at a later stage to allay any anxiety by introducing a change of the wording in another Bill I am quite happy with that but it is a matter for the Minister himself.

Mr. Alexis FitzGerald

I must confess that I attach great importance, as a result of this debate, to hearing the Minister say he was making the concession he indicated he was prepared to make with regard to this matter—as I think he put it, "to allay anxiety". With others on this side of the House, I think it would be very much better if this concession were embodied in an amendment to the legislation before the House. I cannot think why a Bill which was introduced last January cannot await enactment for another ten weeks or whatever length of time must elapse before Dáil Éireann assembles, particularly in the context that points have been made which have been well argued in favour of other amendments to this Bill.

If the Minister gave himself time to consider such amendments he might find he could accept, in a redrafted and revised form to better suit the context of his own legislation, some of the amendments put forward here. If the Minister indicates that he recognises the anxiety as being genuine and gives an undertaking which is completely acceptable to the House to embody a change in the legislation which is proposed to be enacted by this Bill, I think it also desirable that this House be given an indication that it is not engaged in a somewhat futile operation in debating a measure when the Dáil is in recess.

I know there are certain kinds of Bills which because of very strong practical reasons when they reach us, we cannot do anything about. There is, for example, the whole field of the collection of taxes. If the business of the Dáil is being so managed that such a piece of legislation reaches us too late for any amendment to it which is thought to be acceptable by the Minister and it is too late to go back to the Dáil we cannot do any more than hope that our view will be embodied in some future Finance Act. There are other kinds of legislation—there is a Bill, I think, before the House which will be dealt with after this Bill has passed through it, that is the Army Pensions Bill—where a person's receipts will be affected if we do not put it through in the form in which it is proposed, although we might not particularly like that form.

It is highly desirable that both Houses of Parliament be given an assurance that the time they are spending here is well spent in the public interest. I hope I am not moving away from the amendments here. After all, I think I am entitled to make this general comment arising out of the Minister's proposal that he will accept the sense of the amendment which has been proposed and embody it in other legislation. I am also entitled to say that there are many groups in this country at present roaming around, giving television broadcasts and issuing war communiqués denouncing each other, who have complete contempt for the processes of Parliament. We owe it to each other to respect the Houses of Parliament, to listen to each other with open minds and not to impute motives to the other side when one party is making a point. We should be concerned with the reputation of these institutions. We cannot expect these institutions to have the respect of the people if we do not have respect for them ourselves.

Mrs. Robinson

Hear, hear.

Mr. Alexis FitzGerald

I think one of the ways we can show respect for this House is by this House being given a sense that when it debates a measure if a good point is made the Minister will, unless he is forced otherwise to do so—such as he is in the case of the Finance Bill or in the case of payments due to people who are awaiting them—hold it back for enactment until he has treated the amendment proposed to him in the form he wants to treat it, having received the expert advice on it that he should receive, so that it is appropriate to the measure he has before the House and then brings it back to the Dáil.

We could all be doing different things today rather than thinking we are loitering here or holding each other up. No one is more afflicted by that sense in this House than I am. At least I am as afflicted as other people. It would be good for Senator Ó Maoláin if he thought that we would listen to him with respect and it would be good for us if we thought he would listen to us with respect. It would be good for the House and its reputation, and the people's opinion of it, if we were all seen to be treating each other with respect.

As to the Minister's attitude in his last address to the House, I must say that apart from the concession which personally I got more encouragement from—not from my advocacy but from the advocacy of other Members on this side of the House—he made the best defence that has been made for the employment of the words "encourages or advocates" in so far as he was able to produce two cases which lie outside the Offences Against the State Act, which had been previously the Public Safety Act and the Treason Act, cited in this House in support of the use of these words.

Before referring to the particular Acts to which he referred, it is worth drawing the attention of the House to two of these Acts to which reference has been made. The Treasonable Offences Act, 1925, used the word "encourage" but also—and it must be presumed that the legislation is not just repeating itself—uses the word "incite" thereby suggesting that the word "incite" was thought by the Legislature then to have had a different meaning to the word "encourage" or the two words would not have been used.

The words "incite or encourage" are used in section 9 (2) of the Offences Against the State Act, 1939. This section deals with interference with the military or other employees of the State. There have been two other Acts referred to. It is good enough to correct me for not having dealt with them on Second Reading when I dealt with the only statutes that were referred to and did not deal with statutes that were not referred to; one of these is the Act of 1923. None of us wants to lift the roof off 1923 but there was then a war situation and clearly the word "encourage" here used in 1923 would be deliberately used by the Legislature to embrace activities which might not be caught by the word "incite".

We are left with the Offences Against the Person Act, 1961. Certainly in my research—I did a little dredging before standing up in this House on Second Reading or even on Committee Stage—all I can say is that there is so little importance attached to this word that it was never given any judicial determination, never judicially considered as to what its meaning was. I have the authority of the most recent edition of Strouds Judicial Dictionary to support that proposition. You will not find in that judicial dictionary any definition of the word “encourage”. Importance must be attached to the fact that the word “incite” has been interpreted widely and defined precisely and the significance is real and well understood by anyone who is concerned to apply the law and to know and be advised as to what his rights under the law may be.

I do not like to say to Senator Eoin Ryan that he would ever be disingenuous. However, he came along here today and quoted from Roget's Thesaurus and he told us that the first word used when defining or giving meaning to the word “encourage”—if I am correct —was the word “incite”. Of course “encourage” includes incite, but he did not give all the other meanings which “encourage” may have, and he has got the book there. I am quite sure he will be able to give them to us. I have not got it in front of me. I am taking a great risk in inviting him to give us the other meanings of the word “encourage”.

Mr. E. Ryan

I will.

Mr. Alexis FitzGerald

The meaning of the word "encourage" as given in the Oxford English Dictionary includes the word “incite”. It includes also” to inspire with courage, animate, inspirit, to embolden, to instigate, to recommend, to stimulate, to countenance”. The party may be interested to know that one of the usages quoted is from Steele. Jack was encouraged at this success, and could be discouraged at this failure. The point is that “encourage” is a wider word than “incite”. It is clear if we look at the context of the Public Safety Acts, and the Offences Against the State Act, 1939, and the Constitutional Law (Amendment) Act, 1931, or all that code, that the language, if you look at the first of them, is with slight variations, transferred from one Act to the other. In effect what they are saying here is: “You want a wide test to determine whether you are going to capture fellows who are engaged in determined effort by arms to overthrow the Government, to threaten Members of the Oireachtas, to threaten the Bench, to threaten members thereof and generally to interfere with the military. You have got to have a wide word like ‘encourage’ if you are going to be in a position to determine that a particular association is a legal association.”

As I understand it, we are to have an association switch. The Government are not prepared to declare if we are legal but members of associations are going to be liable under this section for statements made by persons representing them which involve encouragement, which encouragement is encouragement of an offence under this Bill. The Minister is absolutely right in endeavouring to allay anxiety by accepting this proposed change which has been genuinely proposed to try and circumscribe the nature of any new offence which would be created here by this section. It is not merely a question of allaying anxiety which the Minister may think is unreal. I think it is to allay anxiety which is well-based because the word "encourage" includes much more, if Senator Ryan will tell us what Roget's Thesaurus gives as its other meanings, than “incite”. “Incite” is defined precisely.

Mr. E. Ryan

I will give you all the meanings.

Mr. Alexis FitzGerald

We will wait and hear that and be glad to do so. A court interpreting this section, if the proposed amendment were not being accepted, would be bound to look at the existing state of the law, and would be bound to say that the Legislature has deliberately chosen to create a new preliminary offence, something other than incite, and that it would be bound or at least free to hold that this new offence collected and brought in activities which would not fall within the definition of "incite". I hope I am correct—I am ready to be corrected by more learned persons—that you do not even need to use the word "incite" if we are talking about an offence when we are thinking of individual persons because if you have a criminal offence it is a criminal offence by way of a preliminary offence to incite another person to commit it without providing for it to that effect at all.

A mere substitution of "incite" for "encourage or advocate" will not achieve what the Minister wishes to achieve unless he goes on and accepts —and I think it is one of the amendments which are before the House at the moment—that other amendment which Senator Kelly has tabled, because "incite", as it is legally defined and understood by the courts, means an incitement of a person or identifiable persons and even if it fails to procure the action which is canvassed or solicited, nonetheless it is an offence for which the person being charged can be liable. But in this particular case the Minister is, and we are accepting his statement that it is not the unfortunate squatter whom it is sought to catch but the people who organise squatters, people who, seeing a social evil, come in to try and exploit it for their own political purposes. Here "incite" would not be appropriate unless it is an incitement directed at persons at large, members of the public. I certainly strongly recommend the Minister to consider making amendments to this Bill for the reasons which I have advanced to the House.

Mr. Nash

Senator FitzGerald has endeavoured to discriminate between the words "encourage" and "incite" on the basis that the only statutes of which he is aware in which the word "encourage" is being used in this country are those referring to public order or emergency type of legislation. Therefore, they are considered to be all-embracing. The words "encourage" and "advocate" have been used long before that. I take two statutes at random. In section 17 (1) of the Children Act, 1908, the words "advocate" and "encourage" are used. They are also used in an Act that does not apply to this country; it is an English statute —section 38 (1) of the Sexual Offences Act, 1956, which I quote:

Any person having custody of a young girl who causes or encourages the seduction of her shall be guilty of an offence.

The words "incite", "encourage", "advocate", "solicit", "procure", and so on, are not, as Senator Horgan has already pointed out, precisely defined in any statute or in any judicial decisions. The reason is fairly obvious from the manner and the circumstances in which those words are used. They are used in a criminal trial. A criminal trial is heard and decided upon by a judge and a jury. Secondly, every word and every phrase in the charge against the accused, and every word and every phrase in the statement under which the accused is charged must be given that construction which is most favourable to the accused. Therefore, if, as Senator FitzGerald has pointed out, the word "encourage" includes as well as the word "incite", various other meanings, such as emboldened, inspired with courage, et cetera, the only meaning that can be given to it within a criminal trial of anybody charged with the offence is that meaning which is most favourable to the accused. Having gone through all the various possible meanings, unless the jury are satisfied that the accused is guilty under the meaning which is most favourable to the accused, they must be directed by the court to bring in a verdict of not guilty. Furthermore, the charge, having to be decided upon by a jury, the decision, as the law in this country stands, must be unanimous.

So, you must have 12 ordinary people forming a cross-section of the community who must be satisfied that a person who was charged with an offence of advocating or encouraging, has done so. It must be the meaning that those 12 ordinary people will find, and they must be unanimous. It is not sufficient if two or three of them have a cockeyed meaning of their own. To say that any Minister for Justice in the future or the present Minister, or any other Minister, could hold people up to ransom by giving the word a meaning of his own, is utter—I say the word without any sense of disrespect—nonsense. The construction of the word does not lie with the Minister in the ultimate Act. It lies with the ordinary citizens of the country who form the jury of the country.

I take a reference to this which I quote from Roscoe's Criminal Evidence:

An accessory before is he that being absent at the time of the felony committed, doth yet procure, counsel, command or abet another to commit a felony, and it is an offence greater than the accessory after.

These are the sort of words that are used freely and that everybody understands, and that at least a jury of 12 ordinary people will attach their own meaning to. It is unfortunate that we are thought so conservative in law that, like old Latin, we stick to phrases and words, when in the ordinary meaning of the ordinary people talking in their own language, those phrases and meanings and those words get a different meaning in different generations. Sooner or later that sort of thing can lead to injustice. People must be spoken to in their own language and in their own words.

That really is the reason why there are certain words which are constantly used in court and which are never, and have never, been defined. For example, let us take the word "reasonable" which was asked here today. Three-fourths of our civil cases are tort cases which are not dependent on statute; they depend on the construction of that word "reasonable"—that has never been construed. Every criminal case that comes before the court depends on the construction of that word "reasonable" for it has never been construed. A judge must direct the jury that if they have any reasonable doubt as to the guilt of the accused he must be acquitted. However, very few judges have attempted to define those two simple words "reasonable doubt". In many of the cases where they have endeavoured to define them, if the jury brought in a conviction, the conviction has been upset by the Court of Criminal Appeal. Those words and those phrases must be left to the ordinary interpretation of ordinary people.

Whether you use the word "advocate" and "encourage" or "incite" or "solicit" or, as the case may be, "procure", every one of them must be left to the interpretation of ordinary people. In this day and age in the ordinary language of the people, one seldom hears the word "incite". You can live your own normal social life for years and, unless you are a lawyer, you no more hear the word "incite" than you hear the word "intention". It would be much more satisfactory in criminal statutes, which have to be, so to speak, obeyed by people, if the ordinary phraseology of the ordinary people were used, instead of stilted language. However, there has been so much fuss about these, so much of a storm in a teacup, that the Minister has seen his way to say: "All right, I am satisfied. If it pleases you, I shall do it."

In the ordinary discussions of Parliament—and Parliament is very useful —I do not consider that we have been wasting our time here today, despite the fact that in small subsections what might be considered by the ordinary people to be small points have been raised. I do not for one moment accept that that has been a waste of time. It is by the discussions in Parliament, whether anything comes from them or not, that at least one gets a consensus of opinion, one gets meanings of words, one learns from one another, whether the Government learn from the Opposition or the Opposition learn from the Government. Nonetheless, if people feel very strongly about something, even if it does not make the least whit of difference, perhaps it is just as well to agree to it. On the other hand, it may be retrograde. I should like to see in our criminal statutes words used that are more common in their use among ordinary people.

Professor Kelly

Mr. Russell

I did not intend to speak on this but I am encouraged to say a few words by the Minister's——

Mr. O'Higgins

But the Senator is not incited.

Mr. Russell

I hope not. I am encouraged by the Minister's cooperative attitude while I was in the Chair. I have no dictionaries or tomes at my disposal. I am not a lawyer. I should like to assure the Minister as a layman and one who does mix considerably with other laymen in the ordinary course of public and commercial life, that to the average layman there is a world of difference between the word "incite" and the word "encourage". He does not need dictionaries to tell him that.

I believe it was Senator Eoin Ryan who made the telling point during the debate on this Bill last week that the law is not just for lawyers and judges. The law is for the man-in-the-street. His understanding, interpretation and feeling for an Act is something that the Minister, I am sure, would wish to take into consideration also. I should like to impress on him that point of view. I am not competent to argue the differences, if there are differences, between the words "advocate", "encourage" and "incite" but I should like to assure the Minister, and I am sure there are many Members of this House who, like myself, are not lawyers, but who have been active in public life and meeting the public over the years and will agree with me, that to the average man there is a world of difference in these words.

I appreciate that the Minister has his difficulties as well as the people on each side of the House who, I believe, honestly and sincerely put forward their viewpoints with the desire of making this Bill a good one and to do what the Minister wants it to do. If the Minister would agree at this juncture to introduce on Report Stage an amendment, or amendments, that would fulfil what the advocates on this side of the House and, to a large extent, on the other side also have in mind, it would be a very happy solution to the controversy which has gone on here for only a couple of days but which went on in the Dáil for several months. It would do another important thing, too. Perhaps the Minister does not appreciate this as he is not a Member of this House and possibly never will be, but a very telling point was made by Senator FitzGerald and other speakers in regard to the status and stature of this House and its importance in the eyes of the public. This House has to endure a great deal of criticism from an ill-informed public who regard it with various degrees of suspicion or distrust or regard it as being an unnecessary and expensive adjunct to the business of Parliament. It would raise the stature of this House immeasurably or maintain what we hope is its existing stature if the Minister was to accept an amendment to the Bill from this House.

He did indicate while I was in the Chair that he did not have an opportunity of making the gesture, which he made a short while ago, during the debate in the Dáil because he had to wait for seven and a half hours to get in and at that juncture the whole tenor of the debate had changed and the discussion there finished up on a rather unfortunate note. That has not happened in this House, and I am sure the Minister would be the first to admit that. I should like to suggest to the Minister that if he was prepared to bring in an amendment on Report Stage he would find the Senators on this side of the House and, I believe, in the House generally, very co-operative and willing to go along with him. He expressed concern that this Bill might be delayed. He mentioned a period of four months——

Mr. O'Malley

No. I am sorry that should be three months.

Mr. Russell

Even ten weeks or three months is not a great deal of time. It has gone on now for eight or nine months. If it is going to mean that the Bill will be more acceptable to the public, if not completely to the drafters of the legislation, the Minister would find himself in a far happier position. As a townsman of the Minister I feel he would find himself in a far happier position in his own constituency and the Government party would gain if the Minister were prepared to make this concession.

An Cathaoirleach

There has been a proposal that amendment No. 12 might be withdrawn. This can be done under Standing Orders by leave of the House. Would any Senator care to propose that it should be withdrawn? Before I ask for the agreement of the House I should explain the position. With amendment No. 12 we discussed amendments Nos. 13, 14, 15 and 18. In the event of amendment No. 12 being withdrawn, there will fall with it amendments Nos. 13, 14, 15 and 18. On that basis, I am asking the Members of the House if they are willing to agree to the withdrawal of amendment No. 12.

Amendment, by leave, withdrawn.

Amendments Nos. 13 to 15, inclusive, not moved.

Professor Kelly

I move amendment No. 16:

To delete subsections (2) and (3).

I was originally going to try to amend these two subsections and I have with me my drafts of what I had hoped to do with them. The longer I worked at these two subsections the more hopeless they seemed to me, and I thought that the simple thing to do was to oppose the two of them and move their deletion. It is purely a drafting point, which was already made by a Deputy of the Labour Party in the Dáil, but it is worth making. Subsection (2) section 4 reads:

Where a statement in contravention of subsection (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.

Subsection (1) reads:

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.

A statement in contravention of that sentence is not the same thing as the commission of an offence constituted by that sentence. I know this can be written off, perhaps, as lawyers' hairsplitting and I do not advance it as being any more than that. I simply want to give the Minister and his advisers an opportunity to try to improve the drafting. A statement in contravention, logically speaking, of a rule or law laid down immediately before it does not need to relate to any given element in that rule or law. A statement in contravention of subsection (1) could be a statement simply denying the existence of subsection (1). What was meant was a statement amounting to an offence under subsection (1) or something of that kind. If we are going to have this subsection, and I do not think we ought to have it, it should be tidied up in some way such as this.

An Cathaoirleach

May I intervene for a moment. I omitted to state that amendments Nos. 16 and 17 must be discussed together. There may be separate decisions if Senators wish, but they must be discussed together.

Professor Kelly

Yes. The main objection I have got to subsection (2) is the idea of consent, and my objection to it is of very much the same kind as the objection which most of us on this side had to the idea of advocating or encouraging. It is too wide and too loose and people are likely to be caught in it whose involvement with the making of the statement is secondary or marginal or next to innocuous. I originally thought of submitting an amendment which would read, instead of "consented to the making of the statement" something like "join in the use of such words or the doing of such acts". In other words, if we must have the subsection—and I do not like the idea of guilt by association; I realise the Minister does not like that phrase and I am not trying to dispose of his argument simply by using it, but for convenience let me call it guilt by association—the offence should be made out to be something active and something which is expressed by words which make it plain that it is active. In other words, somebody being prosecuted under section 4 by reference to something done in a way that is provided by subsection (2) should be somebody of whom it can be plainly demonstrated that he has actively participated in the incitement or in the advocacy or encouragement. A formula which makes it possible to catch in this penal sanction a merely passive or acquiescent position on the part of a defendant is going too far. I do not want to use emotive words like "cruel" or "inhuman" or anything like that, but it is going too far. It is importing into the criminal law an element of persecution which our legislators have always tried to keep out of it. This notion of acquiescence making up an offence is going too far and an active role in the making of the statement complained of, not something passive, ought to be the guts of this offence.

My objection to subsection (3) is consequent on my feelings about subsection (2), but in addition to the consequential nature of my objection to subsection (3) I want to point out to the House that subsection (3) itself is going to involve the courts in difficulties if not impossible inquiries. Subsection (3) places within the purview of the courts all the circumstances, including the constitution and rules of any of the group and the extent to which the defendant had participated in the activities of the group. I can imagine a district justice, let alone a judge and jury, being held up for days, while the question of the rules and constitution of some probably very loosely organised group were being gone into, and for many more days while the previous activities of the defendant were being gone into and weighed up. The words in subsection (3) have the effect of giving the court a job which is nearly impossible to discharge. Not only that, but they have the effect, to an extent, of reversing the onus of proof. I do not regard this reversal of the onus of proof as something unconstitutional or deadly to liberty.

There are many other examples of it in the law, including the Offences Against the State Act. There are situations in which it is not unreasonable that the onus of proof in regard to a particular element in a prosecution— or, perhaps, I should say the onus of disproof—should be placed on the defendant. In exceptional cases where the State in the nature of things is going to be faced with exceptional difficulties of proof—but they must be exceptional cases—it is not unfair to ask the defendant to explain himself. I will keep these cases to a minimum. Our system of criminal justice, which is accusatorial, in which the State in general is required to prove every component of the offence beyond reasonable doubt, is a healthy one. The circumstances in which departure from that can be tolerated must be very exceptional. Whether the circumstances here are that exceptional I am inclined to doubt. But even if this offence under section 2 or section 3 is serious enough to warrant the reversal of the onus of proof or casting in this respect the onus of disproof on the defendant, the drafting of this part of the subsection is again loose and sloppy. It reads as follows:

... if ... the court thinks it reasonable to do so, 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.

I do not know what an adequate explanation is. I see that the words "adequate explanation" are used not in an English statute which is where I first looked but in English textbooks a good deal in order to paraphrase the duty which is laid on people in special conditions such as where they are found in possession of housebreaking tools. In the Dáil the Minister made play of the fact that this very phrase "in the absence of any adequate explanation by him" occurred in a Bill which the Fine Gael Party put forward last year. It was a Bill, if I may remind the House, about offensive weapons, and the Bill was expressly and openly lifted from the middle of the Criminal Justice Bill which has not yet been resurrected.

The Minister included among his arguments the following in meeting the objection which I have just advanced that these words are too vague. He said: "These words are really vague, but if they are they are not too vague for Fine Gael." That was the burden of his song because the Fine Gael Party themselves introduced a Bill last year, the Offensive Weapons Bill, in which these words occur. That is perfectly true. That Fine Gael Bill represented a group of sections from the Criminal Justice Bill which were the only sections in the Criminal Justice Bill which were acceptable to us. We wished to highlight that and at the same time to get ahead with the worthwhile part of the Bill by bringing in our own Private Members' Bill. There was no deception or sleight of hand or trick-o'-the-loop about it as was said at the time. It was perfectly plainly a word-for-word excerpt from the Criminal Justice Bill, the only part of it which we regarded as acceptable. This is the point I am trying to get to. It is one thing to use the expression "adequate explanation" and to demand an adequate explanation from a defendant on whose person something like housebreaking implements or offensive weapons have been found, because these things are things which prima facie, and not just in the legal sense but in the ordinary layman's sense, require to be explained. If in the ordinary course of life I find somebody in my house with a dangerous weapon, a housebreaking implement or something like that, the first thing I want is an explanation of what he is doing there with them and why he happens to have them.

It is a different matter when we are dealing, not with something which has a physical existence which cries out for explanation but with something which has not got a physical existence, which is something abstract and made up by utterances of words or the printing of words, the conveying of a message, the significance of which may be very much in dispute. In my submission the expression here, "an adequate explanation", is too lose to apply to something of this kind. It may be appropriate enough in dealing with jemmies or with flick-knives but it is too loose and sloppy in dealing with somebody who has participated in the utterance of encouragement or advocacy or incitement to commit an offence under this Bill. What sort of an explanation is meant?

The Minister, if he intends to stick to these subsections, should extend them in some way. I cannot think of a satisfactory way of doing so. I am opposed to the whole principle of the two subsections although I gave up the attempt to improve them. But if we are going to have them the words "adequate explanation" should be expanded in such a way that a district justice and a defendant will know what will amount to an adequate explanation and what will not. Is it an explanation of the content of the statement? Is it an explanation of the degree of complicity of the defendant with the making of the statement? Is it an explanation of the defendant's moral views of society? Would it be an adequate explanation if he said: "Yes, I consented to this statement, but my conscience tells me that I ought to have done so. I have followed my conscience." Is that an adequate explanation? I am not trying to make the thing ridiculous. I do not like this idea of group liability. The Bill would meet its legitimate object quite well without proof of liability, but if we are going to have these subsections and the Minister insists on having subsections (2) and (3), then the drafting could be very much improved and the conditions in which liability is going to attach to somebody could be made more explicit.

Miss Owens

I was glad to hear Senator Kelly saying that he had attempted to amend subsections (2) and (3) and had given up the attempt. As a lay person I had attempted to amend subsection (3) and gave up in absolute despair because I could not find my way through it at all. I take heart to find that the subsection is difficult to an experienced lawyer as well. I cannot see how it will operate in practice. I think we will end up with eternal litigation going on about it because the whole thing is so vague. I cannot see how it will operate with regard to groups: who is to be prosecuted, who is the person who will represent the group, not to mention the morass of rules and conditions that might apply to the groups and which would have to be taken into account as the subsection states.

Another great area of problem will be the extent to which defendants had participated in the activities of the group, because the degree of participation will be very important. One could participate in a group decision just by being physically present at a meeting, or could it be by speaking at a meeting? If this is so, would a record be necessary to prove this? This brings us to the other aspect which Senator Kelly mentioned. What proof would the defendant need to show that he had not consented to the statement? I think we could never find our way out of this subsection at all. I would imagine that it would not be very long until there would be a case in court. I would agree —and I have no knowledge or training in the work of courts—that anybody in the court and any member of the legal profession would have difficulty, taking into account all the factors involved.

This provision will be of tremendous importance to any group of people who are normally engaged in holding meetings and making decisions and statements which could be interpreted as what we hoped would be "inciting," but it looks at the moment as if it will be "encouraging". This is something that groups do every day. Under subsection (3) they will end up in trouble and they are the type of groups that, perhaps, the Minister does not intend to catch by the Bill. They are not necessarily the type of people which he has stated he is getting after. I have failed to discover where groups will be under it and I am very concerned about this shift of the onus of proof. I understand that it is there under other legislation. Here it is even broader and it will be more important.

If I participated in this way I would not necessarily have a record kept of what my decision was. The only case I know of where it is necessary to make people keep a record of decisions is where, under the local government code, section 4 is invoked against the manager. It is required that a record of the voting be kept in the event of a surcharge arising invoked by the local government auditor.

Mrs. Robinson

I should like to support this amendment to delete subsections (2) and (3) from section 4, and I do so for the reasons which have been very well set out by Senator Kelly, and also because the word "incites" is a word which has been legally determined here. The court would have a certain approach to it, whereas the words "encouraging or advocating" in subsections (2) and (3) of section 4 are much broader than the normal concept of incitement.

To that effect I turn briefly to a statement on the concept of incitement in Smith and Hogan's book on criminal law, the second edition, at page 149, relating to the mens rea. They state that “to constitute incitement there must be, in addition, an element of persuasion which is not necessary in the case of counselling or abetting”. It is this element of persuasion that is totally absent in subsections (2) and (3) of this section. It is not necessary in the mens rea of this offence of advocating or encouraging that anybody be persuaded. It is not necessary that anybody listen to the advocating or encouraging of either forcible entry or forcible occupation. There is no distinction made between what the American courts have designated “passive advocacy”, which would never be sufficient to constitute an offence of this nature, and “active advocacy” where there would be the persuasiveness that is necessary in incitement. There would be the actual persuasiveness of persons, even if the crime itself is not committed.

There must be at least an attempt to persuade a person, and it is for this reason that I think that "advocating and encouraging" is much broader and that the provisions of subsections (2) and (3) clearly follow from that, in that they import a new idea into the law of what has been termed "guilt by association", guilt by membership of a group, unless the member of that group dissociates himself actively by an adequate explanation from the statement made by that group.

The first point that I want to argue at some length on this amendment is my own personal doubt as to the constitutionality of the type of guilt by association which I see in subsections (2) and (3) of this section. The argument which I wish to put forward under this is the fact that, under Article 40, subsection (3) (1) of the Constitution, 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. It has been determined in quite a few recent cases—the Attorney General v. Ryan in 1965 and McCauley v. the Minister for Posts and Telegraphs in 1966—that the duty on the State under Article 40, subsection (1) of subsection (3) is not merely a passive duty, but an active duty. The words show this—“by its laws to defend and vindicate the personal rights of the citizen”.

Moreover, the judges in recent cases in analysing what is meant by "personal rights" under the Constitution have made it clear that these personal rights are not at all confined to the rights actually written into the Constitution, actually set out in it. A good illustration of this is the fact that the right of free movement around the country is not stated in the Constitution and yet clearly this would be a personal right under the Constitution. There are many others that one could think of which are set out in the constitutions of other countries or which we would regard as in the spirit of the Constitution as necessary to human dignity and to the personality of citizens of this country. These rights are not stated but are implied in this guarantee of personal liberty.

Therefore it would be open to the judge to extend the list if a good case was made for this. A good case could be made for the personal right of any citizen of Ireland to know or to have the means of knowing whether he is going to be charged with and found guilty of a criminal offence. That is one of the reasons why I have doubts about the constitutionality of section 4, because of this wide framing of a provision where a person, by membership of a group, unless that person took active steps to dissociate himself from statements made on behalf of the group, could be guilty of this offence of advocating or encouraging.

In this context it is to be deplored, first of all, that, if the statement is made by or on behalf of a group of persons, they have to write a letter of protest about the statement made in order to negative this consent. It means that, whatever might happen when the matter came before the court for determination, there is the question of interference with the liberty of the individual, in that the individual, in order to avoid being guilty of an offence, had to actively withdraw or negative his consent.

It is very hard to see what the mens rea of the member of that group would be. As the Minister, I am sure, will appreciate this is not an offence which will not have a mens rea. There must be some guilty mind. I am wondering how one could frame the mens rea of the membership of that group by any statement that was made. It could, in some circumstances, be a very obscure mens rea and it could be very difficult for the individual concerned to know whether he was committing a criminal offence and leaving himself open to what, under the terms of the Act, could be very serious penalties. Presumably, under the terms of the Act, this statement would be made by a group which had, prior to this, made a statement and therefore if it was not the first time or if the prosecution is on indictment the person could be liable to a penalty of three years.

Taking into account the vagueness of the terminology and taking into account the lack of any active participation or the necessity of any active participation by the person, to be at risk of a possible penalty of three years is, to my view, not defending and vindicating the personal rights of the citizen but putting citizens at a great potential risk in which they would have great difficulty in ascertaining whether they were, in fact, free of this risk.

Subsection (3) reads:

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.

I would agree with Senator Kelly that this type of onus on the defendant to come forward with an adequate explanation is not to be welcomed in the case of an offence such as this.

Business suspended at 6 p.m. and resumed at 7.15 p.m.

Mrs. Robinson

Before the break, I was making the point that I favoured the deletion of subsections (2) and (3) from section 4 of the Bill because in my view they are both undesirable and even arguably unconstitutionally wide in their framing of a criminal offence and in the way in which an individual may be guilty of that criminal offence because as I have stated, and I do not want to repeat myself, I just want to pick up the thread of it, the person is guaranteed his personal rights under the Constitution and one of the personal rights, I would submit, is to know whether one is at risk of committing a criminal offence. It seems to me that from the wording of subsections (2) and (3 it would be very difficult for a person to know whether he was, in fact, in the circumstances, because of his membership of a group, liable to be prosecuted under the criminal law. Even if he did know, it is not at all clear what he could do to absolve himself from it, what the adequate explanation under subsection (3) might be. Also, it is not clear as to what extent the person need even have a knowledge of the contents of the statement when it is made if he does not dissociate himself from it afterwards.

I emphasise that subsections (2) and (3) convince me that in the context of section 4 there is a substantial difference between "inciting" and "advocating" and "encouraging" because "inciting", as I quoted earlier from a criminal law textbook, necessarily implies the element of persuasiveness, persuasiveness to a person or persons unknown to do something, whereas here the statement could be made on behalf of a group with which a person was associated and the person could, for that reason, be found guilty of an offence under this section unless he actively dissociated himself. This is a very undersirable mens rea, that by membership of a group, unless some active steps are taken, a person could be found guilty of a criminal offence.

Once again, because the Irish courts do not appear to have determined the use under our Irish law of these words "advocating" and "encouraging", there has not been to my knowledge and I have the support of Senator Kelly on this, any case dealing with this, nor am I aware of any English cases dealing with similar terminology, so I must very briefly refer to another American case which deals with the aspect of passive advocacy as opposed to active advocacy and makes this distinction. The case I am referring to is Mates v. United States, 1957, heard by the Supreme Court. In that case, which I mentioned on the Second Reading and on which I do not intend to repeat myself, the 14 petitioners were convicted of a very serious crime—“conspiring to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence”. As I said then, the conviction was quashed because there was a failure to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end. This was the essence of the decision.

The essence of subsections (2) and (3) is that because a person by membership of the group may be associated with a statement of that group, that is by definition a form of passive advocacy, and the person, by being associated with the group on whose behalf this statement is made, can be sufficiently linked with it to be guilty of advocating and encouraging under section 4. This would be challengeable as being unconstitutionally vague because it would not have that necessary element of active advocacy, the necessary element of active persuasiveness, of actively influencing others to a course of action which the Minister is trying to control under this section.

It is relevant to emphasise yet again that the law, as it would exist were this Bill passed without subsections (2) and (3) and with the change of the word to "incitement", would be sufficient to control the groups, the subversive or quasi-political groups that the Minister is anxious to bring within the bounds of the criminal law. The reason why it would be adequate is that, first of all, since the offence of incitement to commit forcible entry or forcible occupation would lie, an attempt to incite would lie and also a conspiracy to forcibly enter or occupy would lie and this is a charge which could be laid against a number of persons in a group, some of whom were identified, some of whom were not identified. A conspiracy charge would lie that three or four people did with others unknown conspire to forcibly enter or forcibly occupy. In other words, in an analogy with another recent English case, Regina v. Robinson and Others in 1970—3 All England Reports—there a charge of conspiracy to forcibly occupy a premises under the ancient statutes that the Minister has referred to as “old cod” was upheld by the court of appeal, a conspiracy charge against these four people and others that they conspired to forcibly occupy a schoolhouse. This is the type of situation that the Minister is envisaging in section 4.

What I would submit to him is that under the law as it would be with these amendments there would be adequate police control and there would be the possibility of bringing substantive charges against groups. It would not remove the possibility of any teeth from the Bill but it would remove the vagueness and the fact that the mens rea of the members of the group would be a matter which would be extremely hard to analyse and extremely hard to determine and, therefore, would appear to be unconstitutional in that it would be very difficult for them to know whether, at the time of their membership of a particular group, they were guilty of an offence.

My final argument on these lines is an argument not so much as a lawyer but as a person living in this country. I am as aware as anybody else of the alarm and of the disturbance in the organs of the Press and the radio caused by the terms of section 4. Our Press and radio are not particularly hysterical. They are composed of very hard-headed people. They have analysed the section as we are attempting to do now and they see in it a potential danger. Various groups such as the Dublin Branch of the National Union of Journalists, the editors of the daily newspapers, et cetera, have attempted to make this case and the Minister has assured them that he does not mean to interfere with the freedom of the Press. I accept the Minister's word for that. I am sure that is not his intention under this Bill, but I still think that what he is giving is a ministerial assurance and what he is expressing is a personal opinion. What will happen when this Bill is passed is that the Minister will no longer be in control because, as he himself will admit, it will be the Attorney General who will bring prosecutions under this measure and the Minister will not be the person who will be the moving party. Although he may assure us now that he did not intend any broadcasts or statements made in the Press or articles written to be the subject of a prosecution under section 4, if the Attorney General sees fit to lay a prosecution under it, then the Minister can quite properly wash his hands of the affair. He can say as has been said recently—particularly in relation to the Arms Trial—that it is the Attorney General who is bringing the prosecutions and no one else and no one can influence him in his capacity as Attorney General prosecuting on behalf of the people. Although the Minister may—and I believe him—in good faith say that there is no danger to the organs of expression and freedom of speech in this country, I would put it to the Minister that after this Bill is passed he will have no control over whether prosecutions are brought and I would agree with the members of the Press who have expressed alarm that it is possible that the wording of section 4 is wide enough to include a broadcast or an article written in strong terms.

There is a real danger and I would go so far as to say that the effect of section 4 could be had in our society if it has a censorial effect on articles being written, if we do not have what the Federal Supreme Court judges in America consider to be the essence of a free society, that is the freedom to express and the freedom to have conflicting views expressed; the freedom to have the negation of a particularly noxious doctrine. That is a truly free society and not one which feels censored by the vague terminology of criminal offences, and the possibility that an editor, or the writer of an article, or a broadcaster could be liable to anything up to three years imprisonment. Therefore, I would urge on the Minister, even if he himself in his view of this and being advised by the members of his Department, to appreciate that there is this general fear. I urge on him to admit that it is the Attorney General who would bring the prosecutions, if there were any, and that it would be a judicial determination. In addition, would he consider the argument that there is sufficient ammunition in the law without this, and that there is the possibility of bringing charges of incitement, or charges of conspiracy to commit forcible entry or occupation, which would get at subversive groups? We do not require such an extension of our criminal law.

Mr. O'Malley

As I mentioned on Second Stage, most of the acts of squatting and illegal occupation, with which this Bill is concerned, are part of a deliberate campaign, promoted and organised in the main by quasi-political groups. They are no more than front organisations for subversive elements in our society. Part of the tactics of these groups is to issue statements encouraging or advocating forcible entry on, or forcible entry of, the property of others. Subsections (2) and (3) of section 4 are designed to enable the individual members of these groups, and, through the members, the groups themselves, to be made amenable for their actions.

In that connection I should like to quote from a publication called Communist Comment published fortnightly by the Irish Communist Organisation. This has possibly never been quoted from in this House before. I quote from No. 39, the issue of 7th August, 1971, page 4:

Why this Bill? What are the real reasons for the introduction of this anti-squatting Bill? From sections of Fianna Fáil and the "Left" come the argument that the Bill is being brought in because there is an organised campaign to take over private and corporation property. This is not true. The only seriously organised campaign collapsed when Sinn Féin and the Communist Party of Ireland decided to liquidate——

The emphasis is on the word "liquidate".

——the Dublin Housing Action Committee over a year ago.

I cannot altogether accept that this Dublin Housing Action Committee was liquidated, but what is significant in it is the fact that it was established jointly by the Communist Party of Ireland and Sinn Féin. It bears out beyond doubt what I have just said and what I had been saying earlier in connection with this section.

In relation to subsection (2) I would emphasise that consent is expressly necessary to render a person guilty of an offence as a member of a group in relation to a statement in contravention of subsection (1) made by, or on behalf of, a group. The fact that consent to the making of a statement is an essential ingredient in what lawyers would call the actus reus of an offence makes nonsense of the allegation that has been made that the subsection introduces what has been so falsely described as “guilt by association”. In short, you cannot be convicted unless you consented to making the statement and the prosecution must prove that you consented to make it. 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) be open to the court, and to the court alone—and I want to emphasise that—the court alone, not the prosecution, 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 particular attention 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 adduced in that way if it considers that there would thereby be any element of unfairness to the defendant. I emphasise this point to make it clear that expression of fears that subsection (3) may operate unfairly, and to the disadvantage of the defendant, is tantamount to an expression of no confidence in our courts and in the way in which they would do their job. It is only fair that we should all be perfectly clear in our minds about this.

I also want to make it clear that what is involved here is not, as has been alleged, a shifting of the onus of the proof of guilt, but a transferring at the discretion of the court in respect of one aspect of the case only, of the evidential burden, or the burden of introducing evidence. This burden is clearly distinguished by all the leading authorities from the burden of proof, or from the onus of proof, as it is sometimes called.

The provisions of subsection (2) put it beyond doubt that a member of a group cannot be guilty of an offence, where he was unaware of, or did not consent to the making of a statement in contravention of subsection (1). The effect of subsection (3) is to allow the court, if it thinks it reasonable to do so, to impose an obligation on the accused to offer an explanation of his position in the matter, where a prima facie case has been established by the prosecution. Where the court in its wisdom decides to exercise this discretion, it will, on the basis of existing case law, be sufficient if the accused can establish a reasonable doubt in the mind of the court, since the overall burden of proof, that is to say, the burden of proving the accused guilty beyond reasonable doubt, will at all times be on the prosecution.

For those reasons I must ask the House to reject these two amendments. I should like to point out once again that this section, to which these two amendments relate, has nothing to do with what has been alleged it has been created for. There is no mention of the Press; there is no attempt to interfere in any way with the Press. In the light of the suggestion I made this afternoon, there is nobody who can allege that the Press are in any better, or in any worse, position than they were before, or that anyone else is in any better or in any worse position than they were in before. As I have said many times already, the exisiting law is that it is an offence to incite somebody to commit an indictable offence. That situation is in no way changed by this Bill or by this section. I do not see how anybody could suggest in all honesty that it should be an offence for a squatter to forcibly enter, or forcibly to occupy property, but not an offence to be one of the organisers of that sort of situation, putting in vulnerable people for whom most members of the community would have a great deal of sympathy. Why should those vulnerable people, who might well be in genuine need, be the sufferers under a Bill or an Act such as this? These people who organise and, as they say themselves, subsequently decide to liquidate the front organisation of the Dublin Housing Action Committee, the front organisation for Sinn Féin and the Communist Party of Ireland, why should they and the other writers to Communist Comment get scot-free from the situation that they create and allow the rather unfortunate people whom they put into possession of these places to suffer the consequences?

Professor Kelly

I have five brief comments to make on what the Minister has said. His quotation from Communist Comment does not surprise me. It is in line with his quotation on the last occasion—I cannot remember whether he was quoting from a document or from memory—of the kind of directions which were handed around to agitators. His reference to Sinn Féin suggests to me that I was right in mentioning the Offences Against the State Act, and that I made a mistake in not pressing him a bit harder on the reasons why he passed up the possibilities open to him under section 18 to declare an organisation unlawful.

If the Minister's view is that the kind of people who are in a position to "liquidate" the Dublin Housing Action Committee are undesirable organisations, he should come to a decision as to whether they are unlawful or not in terms of the Offences Against the State Act. Let me remind the Minister that Sinn Féin, through it is a party for which I hold no brief, has only recently been accepted by the Clerk of Dáil Éireann as an organised political party within this State which will, from now on, be able to put their name on ballot papers after the names of their candidates. That is no proof that they are a lawful organisation but if the Minister is anxious, as perhaps he rightly is, about the kind of organisation which can speak about "liquidating" front organisations, he should give his mind to the question of whether these people are lawful or not. Are they unlawful according to the definition which the Offences Against the State Act provides? —and let me repeat it:

An unlawful organisation is one among other things which engages in, promotes, encourages or advocates the attainment of any particular object, lawful or unlawful by violent, criminal or other unlawful means...

including, for example, even trespass. A civil trespass is an unlawful means and an organisation which advocated the attainment of its objects by promoting civil trespass would be an unlawful organisation under this Act. The Minister should make up his mind about that and the Government should also do so. There may be tactical reasons for not doing it, reasons which depend on the advice of the police, but we should be given some indication of how the Minister makes up his mind or how the Government make up their minds in regard to their powers under the Offences Against the State Act, which are allowed to rust, and which give them some control over these organisations.

Secondly, the Minister mentioned— I do not think it was aimed at this party—something about people who spoke of the dangers of subsections (2) and (3) as reflecting a lack of confidence in the courts. This is another example of our being asked to make acts of confidence in people who are not responsible to us. No one is expressing a lack of confidence in the courts. I want to put it on record, and I am sure I speak for my party when I say it, that we have the greatest confidence in the courts and, in fact, more confidence in them than in any other arm of government. The question is not whether we have confidence in the courts, but whether we have confidence in the law which the courts are being asked to apply. The reason why almost everybody, an entire spectrum of opinion from left to right, from top to bottom, opposed, and loudly opposed, the Criminal Justice Bill introduced a couple of years ago was because of this reason, namely, that the courts were being given legal instruments into their hands which in various ways represented potential persecution of the citizens. Even a judge being as honest as he could, could not fail to use such a Bill if turned into law, as an instrument, as we thought, of undue harshness. The Minister is not right to put the argument on this basis that we are expressing a lack of confidence in the courts. We have great confidence in the courts. It is the law we are making which the courts will have to apply that we are not so sure about.

The Minister spoke about groups. I know well that there are such groups, but I do not know if the Minister understands the difficulty which an ordinary justice in Dublin, Athlone or Belmullet is going to face in interpreting this section if it becomes law. If the Minister had been in University College, Dublin, in March, 1969, at a time when what was called the "gentle revolution" was going on there, he would have discovered that the trouble was caused by people many of whom went out of their way to make clear that they did not belong to any group. In fact their notion of democracy was entirely amorphous and fluid, with the minimal organisation. There was one group which did have a name; there were many people participating in the trouble there who were not members of that group, did not claim to be members and would have been denied by the members of the group. Nonetheless they were all acting in pursuit of a common purpose.

I dislike these two sections but, even if I were to like them and to agree with the Minister in their purpose, he is tying the hands of the courts in using this word "group". A group implies people with a common purpose, of an organised kind, who try to achieve their objective in an organised way. Many of the people in the modern wave of revolutionary activism tend not to form themselves into groups. Many of them would give a loud laugh if they could hear about their "constitution and rules". I wonder what constitutional rules the Dublin Housing Action Committee had before it was liquidated by Sinn Féin and the Communist Party? I wonder what rules they had about election of chairmen, treasurers, secretaries, annual general meetings, and the number of attendances a member must have before he dropped out, or when his subscription had to be paid?

I do not know anything about the Dublin Housing Action Committee, but I make a fair guess that they had no such rules or constitution. Our justices will be faced with an impossible task if asked to convict somebody under this group liability. A defendant will say "I am not part of any group, I never signed my name to anything, I am in an absolutely loose informal arrangement with people in pursuance of which I believe a decent society will emerge in this country", or something like that. The ordinary justice, who has many other things to do in a day, could be pardoned for firing out a summons of that kind.

A further difficulty which I mentioned before is this one of the "adequate explanation". What is the explanation supposed to consist of? It is simple enough in the case of a jemmy or a flick-knife. If somebody is found with a flick-knife after the enactment of an Offensive Weapons Act, and is threatened with conviction, he can say: "Well, I am on my way to a weapons' museum to which I wish to donate this flick-knife." That is, I suppose, an adequate explanation of possession of a flick-knife. No other kind of explanation would be adequate. But what is an adequate explanation of being a member of a group which has put out a statement which is alleged to be an infraction of section 4? It can be a large number of things. Is it to be, "My explanation is that I had nothing to do with the drafting of this particular statement"? Is it to be, "I agree with some of the statement but not with the rest of it. I agree with the non-inflammatory part, but I do not agree with the inflammatory part"? Or is it to be, "My explanation is that I do not recognise the tenets of society. I consider I have a moral right to protest in the way I am doing"? What kind of explanation is involved? I oppose these two subsections and I urge on the Minister, if he wants to make this section work and if he is determined to carry these two subsections, to redraft them in such a way that they will make sense.

The last point is also a drafting point and concerns the word "statement". The word "statement" seems to be too narrow. I am trying to help the Government now by pointing out flaws in subsections which I do not think should be there. Senator Eoin Ryan might lend us his Roget's Thesaurus so that we may satisfy ourselves on the point, but the word “statement” seems to me to imply something made up of words. What about people who incite, advocate or encourage by gesture or by placards which consist of a caricature or a cartoon or a political slogan? Is that a statement? If I were a judge or a justice and I was asked by defence counsel to say “This prosecution must fail because there has been no proof that a statement has been made”, I would take the easy way out and acquit the man and I believe the Minister would do the same. I believe if he were back in private practice appearing for a defendant prosecuted under this section for being party to the making of a statement which consisted in a pictorial representation or in a set of gestures, he would be pressing for an acquittal for exactly the same reasons.

Mr. Alexis FitzGerald

From my point of view the Minister in substituting "incite" for "encourage or advocate" takes a good deal of the harm out of the section by using a word which seems to me to make it at least likely that mens rea would have to be established, though this is not the substitution of a statutory offence which is the usual one for a common law offence where mens rea would have to be proved. This is a new statutory offence and the law, from my study of it, seems to be by no means certain. I could quote to the House propositions from well-known books on it but I will just take a sentence from Kenny's Outline of Criminal Law, 18th Edition. With regard to statutory offences he states:

There is presumption, although a weaker one, that common law mens rea is required. Indeed so much weaker is this last presumption it is often held to be rebutted by straightforward words of prohibition alone where no obvious injustice would thereby result.

It is at least not certain that mens rea is required to be proved in this case.

With regard to the language of the two subsections that have been discussed, apparently statements can be made by individuals who are members of groups but they are not going to be statements capable of grounding a prosecution unless the prosecution proves that they are made by or on behalf of the group, a group which is not, in fact, defined.

I took that out. It is gone.

Mr. Alexis FitzGerald

They are liable for a criminal offence. This seems to be breaking new ground and to amount to what the Minister has tried to repudiate here to be guilt by association. They are in an association with other members of the group. They are guilty because of that association, because their circumstances do not permit them to repudiate their brother in trouble. This is guilt by association. I cannot see it as being anything else. If the association were an illegal one proscribed by the Government under a properly authorised statute entitling them to do so, then that is their misery, the consequence of their position and they have got to take it. There should be an out for them in that situation which is not here. I support the amendments.

Mr. Horgan

Might I make a point which I do not believe has been made so far in the discussion on these two subsections? On Second Reading the Minister referred to the accusation made against him that these particular subsections involved transferring the onus of proof. When he dealt with this allegation on Second Stage in this House he said at column 103, volume 71, No. 2:

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.

I wonder if the Minister is being strictly fair in this summary of the situation? To describe what is described in these two subsections here as one aspect of the case is to do considerably less than justice to it. I should like to know whether the Minister agrees with me that apart from the Offences Against the State Acts— to which I am not at all attached— there are only two forms of legislation in which this so-called evidential burden can be taken away from the prosecution. The first is in connection with certain Customs Acts and the second in connection with certain Road Traffic Acts. As I understand the situation with regard to these two sets of Acts, the aspect of the case in question there is very small. It is almost, in fact, a matter of procedure. Yet we are being asked in these two subsections to give the same treatment to something which could not by any manner of means be described as a matter of procedure but is a real matter of substance to the Bill and to the offence which it seeks to create. Is the Minister justified in looking to these petty and almost procedural precedents for introducing such a mammoth change into the whole process of the law?

Mrs. Robinson

Having regard to the Minister's reply to my suggestions that it would be adequate and sufficient under the criminal law to leave section 4 as an offence of incitement to either forcibly enter or forcibly occupy and that this would allow the Attorney General to prefer charges of conspiracy to forcibly enter or forcibly occupy which would be one way of getting at groups, or that the offence of incitement itself is a very wide offence, and that subsections (2) and (3) are neither necessary nor desirable, it is obvious that the Minister is not willing to accept these points. Therefore, I propose to withdraw the amendment in my name to delete subsections (2) and (3) and to try between now and Report Stage to frame an amendment which will protect the concept of freedom of speech which I have expressed here as being apparently in some danger and also one which, if accepted, would reassure the serious persons in the country who are very worried about the potential effect of section 4 as it stands.

Even if prosecutions were not brought in the near future against either the writers of articles or the makers of statements on radio and television or the makers of statements even in a public place, nevertheless, it could have what I would regard as a very undesirable censorial effect, a sort of blanket effect preventing the full freedom of speech in this country. For the reasons given and for the principles that I have set out at some length, I would not consider this desirable and I propose to withdraw the amendment and will try to frame other amendments for Report Stage. I do so with reluctance because I do not think it is a good way of going about the framing of legislation if we have to try to draft exceptions for public organs such as the newspapers and the Press. They should be in the same position as everybody else in relation to freedom of speech. Yet I see no other alternative if the Minister is not prepared to accept this amendment.

An Cathaoirleach

Is it agreed that amendment No. 16 be withdrawn?

Professor Kelly

So far as I am concerned I put down this amendment separately. It looks as though it was put down jointly with Senator Robinson but, in fact, mine was down separately. I do not want to detract from the spirit with which I recognise the Minister has made his proposal in regard to subsection (1) but I am afraid I must press the amendment so far as the second two subsections are concerned.

Question—"That the words proposed to be deleted stand"—put and agreed to.

Amendment declared lost.

Mr. J. Fitzgerald

I move amendment No. 17:

To delete subsection (3), lines 40 to 49.

Question—"That the words proposed to be deleted stand"—put and agreed to.

Amendment declared lost.

Question proposed: "That section 4 stand part of the Bill."

Mr. Horgan

We have spent a lot of time discussing the relevant merits of various words in connection with the first two lines of this section and I do not intend to go over that again because I honestly would be in as much trouble or confusion with "incite" as I would with the other two words. I hope the Minister will see my difficulty and attempt to help me out of it.

I find it difficult to ascertain what a person would have to do in order to commit an offence under section 4, subsection (1). We have been told often enough, and we will be told again, that ultimately the interpretation of this Bill is a matter for the courts. Ultimately the decision as to when an offence has been committed and when an offence has not been committed is also a matter for the courts. It seems to me that a person could go a considerable distance towards committing an offence under section 4, subsection (1) without actually coming under the hammer because of it. Alternatively, either this subsection (1) is so draconian that it includes everybody who refers at any stage and in any way to the possibility of the kind of action that is envisaged in this Bill of Forcible Entry and Occupation or it is so grave that it is incapable of application to anything. For instance, is it necessary if one wanted to commit an offence under this subsection to make specific reference to the Act, as it then would be?

Various persons have already, I believe publicly, announced their intention of deliberately committing an offence under subsection (1) of section 4 one can only presume in order to test the constitutionality of this section and, perhaps, indeed of the whole Bill in the Supreme Court. One of the persons who has promised to do this and to whom I was talking not long ago now finds himself in some difficulty to know how he should go about breaking the law if this measure becomes law. He wonders whether the advocacy of forcible entry and forcible occupation as a policy would be liable under section 4 subsection (1). Would I be liable for prosecution under this subsection if I stood up and said: "I believe that homeless families have a right to the occupation of empty premises which are not being used for any other purpose"? It does not look like it on my reading of the subsection because the subsection states only a person who encourages or advocates the commission of an offence shall be guilty of an offence. I am not actually telling anybody to go and sit down or squat or forcibly enter and forcibly remain in any particular place. A person may well be saying with all the force and strength at his command that he thinks it is a very good thing that all persons who are in a particular situation with regard to their families and their housing accommodation should do this at every single opportunity. This might depend on the status of the person who says it and, having regard to the place and timing, it could be a highly inflammatory kind of statement under the meaning of this Bill. Yet it might not actually be open to prosecution.

On the other hand, if I were to advise, encourage or suggest to any family, say Mr. and Mrs. Murphy, that they should go and sit in an empty warehouse at Bachelor's Walk for as long as they are not given adequate accommodation elsewhere and if I were to lock the doors so that people cannot get in and throw them out, am I then committing an offence under subsection (1) of section 4? Or do I have to say: "I, John Horgan, being of sound mind and disposition, hereby witness that I have told Mr. and Mrs. John Murphy to move into No. 3 Arran Quay or Bachelor's Walk. I know very well that they are not the owners of the property, I know that they are interfering with the use of the property, and I know that they do not intend to leave unless they are physically put out of the property, notwithstanding the Forcible Entry Bill of 1971." It would need something as wide, as detailed and specific as this to ensure that I could be prosecuted successfully for a criminal offence under subsection (1) of section 4.

I am in some doubt and dilemma as to whether this is the meaning of the subsection or whether the other meaning of the subsection is the operative one, that is the draconian meaning, the meaning that this is a global, all-encompassing section which bad administration and an inadequate Judiciary—from which Heaven preserve us—might use in a certain way. This kind of legislation which is capable of two such radically diverse interpretations should not leave this House.

The only other thing which I should like to say about the section as a whole is in regard to its relationship to the two sections immediately preceding it. Each of the sections 2, 3 and 4 create, or at least consolidate, a criminal offence. Section 2 creates the offence of forcible entry of land or of a vehicle. Section 3 creates the offence of remaining in forcible occupation of a land or vehicle. Section 4 creates the offence of encouragement or advocacy of an offence under section 2 or 3. There the similarity between them ends because in section 2 and section 3 there are exemptions given from the criminal law.

I do not agree with the principle of having exceptions to the criminal law. I think that is very bad law. If the Minister is going to write in this principle into this law it must be accepted that it is capable of extension. I do not see why, if persons are to be allowed to commit criminal offences and get away with them for certain reasons under sections 2 and 3, the same should not apply to section 4.

I do not see why exception should not be made of the type that Senator Robinson has mentioned to the provisions of section 4. I shall bend my best efforts to drafting some form of amendment to it to express what I feel about this kind of exception.

Mrs. Robinson

In speaking to section 4 I should like to welcome the statement by the Minister earlier that he concedes that he would be prepared to change the words "encourages or advocates" to the word "incite" under this section. I should like very strongly to associate myself—this is the first opportunity I have had of doing this—with Senator Alexis FitzGerald who voiced not only disappointment but a certain awareness of the abuse of the Parliamentary process, when he expressed his alarm at the fact that the Minister has promised to do this in some Bill in the future but does not see fit to do it in this Bill; because it is the underlying assumption in his words that he will not accept any of the amendments which have yet to be discussed in this House.

If one thinks about that a little it appears to make this House a little ridiculous. If the Minister concedes that it would be a good idea to change the words "encourages or advocates" to the word "incites" then he should do it in this Bill. Earlier in the debate this morning the Minister conceded that he intended to repeal the six earlier statutes of forcible entry, which are part of our law, and it was put to him that this was the appropriate Bill in which to do it and that it should be done in a schedule to this Bill. I mentioned that I proposed to bring in an amendment to that effect. I would hope that by his very logic, by what he has said himself at this stage of the Bill, in a matter which did not come up in the Dáil, the Minister will not tell me that he will bring in a Bill at some future date specifically to repeal the Forcible Entry Acts.

I would agree with Senator Alexis FitzGerald that, in comparison with other Bills, this Bill is having a very swift passage through the House. It was only taken for debate in January and the Bill before us in the Seanad almost prior to this was the Central Bank Bill of 1969. I cannot think in anybody's order of priorities that the Central Bank Bill was less important for the structure of our economy and the whole banking business. The Forcible Entry Bill is quite a different sort of problem to deal with and the situation could well wait another ten or 12 weeks. The Dáil could look at amendments passed in the Seanad and we could have a better Prohibition of Forcible Entry and Occupation Bill than we have now, with this amendment, the amendment to the Schedule and some other amendments which have been put forward this morning and which I think have been very well substantiated.

One of the matters which I think is worth mentioning in relation to section 4 as it stands with the offence of encouraging or advocating the commission of an offence, is the problem that group activities will pose in relation to student protests, in relation to occupying student premises for the purposes of demonstrating—usually on a very short-term-basis—against some particular grievance within the university. Until now this has been a matter which could be regulated by the university itself. The sit-ins, or squat-ins or whatever they were, were not criminal offences and therefore the universities had a discretion whether to act in a forcible manner against the students, whether to discuss the situation with them, whether to call in the police or whether to keep it within the campus. This was a university matter.

Now, under the terms of sections 2, 3 and 4 of this Bill, in the way in which it is framed, anybody who either squats in or anybody who encourages or advocates this by public speech outside, or by writing a forcibly directed article in one of the student papers, would be committing a criminal offence and the university authorites would be powerless to prevent the Garda Síochána coming in on the campus if they saw fit. There would be a criminal offence being committed on the spot and the Garda would have jurisdiction to come in whether the university authorities wanted them to or not. That is something which ought to be thought about. It is an unwelcome extension of this type of problem.

Like Senator Horgan, I have still a great deal of difficulty, despite the long discussion on it, in knowing exactly what is meant by "encouraging or advocating" the commission of either forcible entry or forcible occupation. When this section was being debated in the Dáil—again I am not going to refer to the debate there—a substantial time was spent in discussing what has become known as the Hume Street affair. I do not propose to discuss it at any great length in this House, but I want to say that, as it happened, I was one of the people who stood on the lorry outside the house in Hume Street and I advocated what the students were doing. At the time I was certainly not guilty of any criminal offence. Now, if the same situation arose, if the same facts were there, I would still stand on a lorry and say the same thing. I now feel that under section 4 of the Bill I would probably be committing a criminal offence because I was addressing myself not only to the audience, which had gathered on that Sunday afternoon, but also to the students who were listening and who had occupied and were still in occupation of Hume Street. It is for this reason that I think this is a wrong extension of the criminal law because I do not consider that my activities ought, in a civilised society, to be considered criminal in that context.

My present position in relation to section 4 is that the attempts to amend it have not got very far, despite the Minister's concession that he will before Christmas change the words to "incitement". I find this insulting to the House rather than something to be welcomed. I think Members of the Opposition have been very kind to the Minister in welcoming his suggestion. They should put it to the Minister a great deal more strongly that he is abusing the Parliamentary process by the implied underlying situation that he will not accept any amendment from this House no matter what discussion ensues and no matter how the arguments put forward may differ from the arguments of the other House and may, in fact, convince in logic.

I think this is a very sad situation at a time in Ireland when our institutions are at a very low ebb and at a time when there is a great deal of violence and a great deal of so-called democracy in the streets. For anybody reading the debate and seeing the underlying fact that this House is sitting without any real power to amend legislation it would appear there must be a counter-argument in favour of a more effective democracy in the streets. This would be a very sad situation.

As I have said on other occasions, I think Parliament must arrogate to itself its authority and must assert it. In this House we ought to assert our authority as a House of Parliament which can put forward constructive amendments by which we would expect, if those amendments meet with the approval of the Minister, he will amend the Bill that is before the House and not make vague promises about Christmas. I see grave danger in section 4 as it is at present framed and I shall be bringing in amendments on Report Stage to try to create at least some exceptions to it in favour of freedom of expression.

Professor Kelly

I had not intended to speak on this section but, listening to Senator Robinson over the last five minutes, I felt so strongly moved and convinced by what she says that I felt I should admit to the House that I feel a sense of responsibility for having contributed to the situation which she, very accurately, described. When the Minister this afternoon offered— certainly against all our expectations— in substance to accept the proposal which we were making on the section which we regarded as the most important section of the lot, it certainly took the wind somewhat out of my sails. It probably took the wind out of the sails of other Senators also. I felt that I should say frankly that I was glad the Minister had done so.

Listening to Senator Robinson I am inclined to agree with her very much— although it did not occur to me at the time, I must admit—that the way in which the Minister put his proposal seems to be tantamount to warning us that we can spend today and tomorrow here but, no matter what we do, not a line of this Bill will be changed by this House. I do not like to make these observations in the Minister's absence. I know that the Parliamentary Secretary is not responsible for this Bill except in a nominal way while the Minister is absent from the House.

Mr. O'Higgins

I think I made them in his presence.

Professor Kelly

Senator O'Higgins did so but I think not in quite the same absolute way that Senator Robinson has done.

Mr. O'Higgins

The point I am making is that I cannot remember whether the Minister was out of the House at the time.

Professor Kelly

I think it is a serious and substantial point, but, without wishing to convulse the business of the House or to appear to be throwing back into the Minister's face a gesture which I know is well meant, we ought to get from the Minister a statement now, before we have spent any more of our time discussing any further sections, as to whether he proposes to oppose every single amendment simply for the reason that, were he to do otherwise, this Bill could not become law until October or November. I am sorry to have to say that. With the Minister's choleric temperament he will not be glad to hear that I have raised this point, least of all in his absence. I honestly wonder whether we are doing ourselves justice, or the House justice, in continuing to sit here until a late hour in the evening, perhaps again tomorrow, and perhaps again next week on Report Stage, if the Minister is determined to accept no amendments. For myself I propose not attending if that is the case.

Mr. J. Fitzgerald

I forecast that yesterday.

Mr. McDonald

Hope springs eternal. I, too, would like to express disappointment that the Minister has not indicated that he proposes to accept amendments on this controversial section of the Bill. Over the past weeks the entire national Press have been unanimous that their freedom is being curtailed. Surely the Government must day after day have read the editorials in the Irish Press, Irish Independent, The Irish Times, the Cork Examiner, Hibernia, the Farmers' Journal and indeed every provincial newspaper. They have all joined in this campaign and they all cannot be wrong. Surely the Government should respect the wishes of the people. They should be aware of the fears of this very wide section of the population. I feel we would all readily agree that the national and provincial newspapers in this country are perhaps the most responsible of any Press in the world.

In last weekend's edition of the Carlow Nationalist, which circulates in the midlands, quite an amount of space was given to a survey that was carried out in the two or three counties in which they circulate. This quite good provincial paper devoted their front page article to this question of the freedom of the Press being curtailed. It is significant to note that the only people who expressed views in support of this measure were a Fianna Fáil Deputy and a Fianna Fáil county councillor. The remainder were quite a cross-section of the public, people who are in public positions and who were not afraid to give their names. I feel it is an extraordinary thing that the Government, who all along have been stressing the fact that they are a democratic Government, can choose to completely ignore the views so well expressed by these people. When the Minister talks about bringing in amendments at some far off date we should at least be able to expect that he will accept the amendment before us. I imagine that the Opposition would facilitate the Government in taking this measure through the Dáil with all reasonable haste when the Dáil reconvenes in a few weeks time to discuss the northern situation. It is on the cards that such a discussion will take place.

People who would expect that this measure would become law in ten or 12 weeks time would not be inclined to break it in the meantime. However, I feel there is no great point in passing this legislation with a promise that it will be watered down in a couple of years time. The time to do a good job on it is now, when we have an opportunity of removing the uncertainty felt by the journalistic profession.

Ruairí Brugha

Did Senator McDonald say that a Fianna Fáil Senator and councillor had expressed support for a measure to censor the Press?

Mr. McDonald

All but.

Ruairí Brugha

I felt I could not have heard the Senator correctly.

Dr. West

I should like to briefly emphasise the point that I made on speaking to the first amendment on this section. This legislation is not the place for a section which is essentially so wide and so vague as this one. Even with the amendment which the Minister hopes to bring in, I feel that one of the main criticisms one can make is that the whole section is open to so many different interpretations depending on one's personal view of any particular situation. Although I accept that the Government have produced this Bill in order to deal with specific problems which have arisen I would hope, along with other Senators, that they could do it in a way in which less scope is given to personal interpretation, in which a tighter section would replace section 4. Like other Senators on this side of the House I feel that the time to do this is now. It should not be postponed and brought in at a later stage on another Bill. I would very sincerely ask the Minister to look at the whole of this section again and to reconsider the view that the Bill must now be made law and only amended by some future legislation at another date.

Mr. Horgan

I have a few additional comments to make in the light of some of the remarks that were made earlier on today. When the Minister for Justice made his statement about his readiness to bring in a Bill which would incorporate the necessary amendment in the autumn—I believe he even said before Christmas—something told me to be careful. It was a situation in which there were a number of Greeks floating about and one should look very carefully at the Greeks and what they were bringing before extending to it any kind of unreserved welcome.

At that time I said I would reserve my welcome for his announcement until I saw the Bill. I might as well have said until I saw him accepting the amendment because we may in his absence analyse what the Minister was saying. He quite genuinely was offering something to the House. He was very specific. He said, as far as I know, that he would bring in such legislation before Christmas. It cannot be pleasant for a Minister to think of going to the trouble and nuisance of dragging a petty Bill, such as he has in mind, through all the Stages in each House of the Oireachtas coming up to Christmas at a time when both Dáil and Seanad will presumably be anxious to discuss other more important and weighty things at that stage.

I felt there was a genuine offer by the Minister at that time, but what it revealed of his uncultured state of mind was the most serious thing of all. He made this offer when we were discussing amendment No. 12, a considerable time ago—it must have been at least four hours ago by the clock today. In other words, he had taken a decision by 4.30 today, if not before, which prejudged his response to every one of the other amendments on this amendment sheet, and prolonged reflection on this makes me sympathise considerably with what Senators Robinson and Kelly said.

If this is the Minister's attitude, then we would almost be as well off not to turn up at all. It is almost a precedent that Ministers do not make such statement in this House. When a similar question arose in connection with the Higher Education Authority Bill, the Minister for Education was quite categoric. He would consider each amendment on its merits right up to the very end and that he would not make any firm decision on any amendment to the last possible moment, yet the logical implication of what the Minister said on that occasion was just as if he had said that this amendment will not be accepted nor will any other amendment be accepted. I have never known a Minister to be so specific about his intention and it brings the institution into serious disrepute.

As has been pointed out by other Senators, this section has excited a great deal of comment in the newspapers. If I have any quarrel with the newspapers in this country it is not that they are irresponsible, it is that they are too responsible. We must look at the protests that the newspapers have made about this section in the context of what Irish newspapers are. Irish newspapers, to a considerable extent, are very conservative institutions. The finances of some of them are shaky. A vast portion of their income is dependent on the vagaries of advertising, which can be very widely different from one time of the year to another and which reflect very sharply the economic condition of the country as a whole. In other words newspapers are in many cases subject to very strong financial and economic influences from outside which they cannot control. This induces in newspapers on the whole a great sense of caution. This tends to make them establishment organs. It tends to make them reflect the status quo much more than they inform the status quo. As I said before my main criticism of them is that if anything, they are too responsible, over-responsible, over solicitous where they should be more adventurous.

When we consider the wide range of editorial opinion that has objected to this section of the Bill and when we consider that this is coming not from hotheads and people with nothing to lose but from one of the strongest and, in a sense, most conservative elements in society, then we should take it more seriously than the Government have taken this today. The same is true in the sense of the opposition which has been expressed to this measure by the National Union of Journalists. It is also true to say that most trade unions are conservative institutions. In good senses and in bad senses they are conservative. They are composed largely of married men and married women, people who have a pay packet to earn every week, people who are anxious not to lose their jobs, people who are not at all concerned to overthrow the society in which so many of them earn a very precarious living indeed.

When a union, therefore, makes a representation of this kind, all the more so when it is a union whose business could be so strongly affected if this section became law, I think we should listen to it very carefully. Neither journalists nor newspaper proprietors are at all in favour of what I conceive to be the only possible response to this section, which is to create an exceptional favour themselves. As a journalist and researcher, I do not relish this idea of creating sections of the criminal law. If the Government are going to create this kind of offence by this section, which puts into jeopardy our livelihood and the livelihood of many people who depend on us and who are working in the industry, we have no alternative, at the very least, but to claim the right of exceptional treatment.

Mr. O'Higgins

Could the Parliamentary Secretary say if the Minister is likely to be long?

Parliamentary Secretary to the Taoiseach (Mr. Andrews)

He will be back in about five or ten minutes. I believe that the Minister has already replied to most of the arguments.

Mr. O'Higgins

It is a very important point. I think it is necessary that it should be established, once and for all, at this point in the discussion whether or not the Minister proposes to accept any amendments, or to adopt the position, even if he approves of an amendment, that he is prepared to deal with it only on the basis of introducing a different Act or an amending Act later. The Minister is here now and he will probably clear this up for us.

I have forgotten if the Minister was here when I raised the point previously, and it has been raised now by a number of other Senators, as to whether or not the concession the Minister has made, and has indicated will be dealt with in another Bill governs his approach to all amendments to this Bill? Is the Minister's position that, even if something is suggested by way of an amendment which meets with his approval, he is not prepared to allow this Bill be amended by the Seanad for the reason that it would delay it for three months by reason of his having to go back to the Dáil? Members of the House are entitled to know if that is the Minister's approach and to decide, depending on the Minister's reply, what their approach to further discussion of this will be.

Mr. O'Malley

The Senator knows what the problems are. I have explained them already.

I am relying on hearsay.

(Interruptions.)

Tomás Ó Maoláin

I heard the news bulletin and it did not say that.

Is this freedom? If there is to be freedom for the Press, what is the limitation to this freedom? If there is freedom to comment, then it should be fair comment. This should be faced and, if the Opposition feel they have lost the debate, then let us face it.

Mr. Horgan

Senator Gallanagh seems to be under the impression that the whole problem has arisen here because this side of the House has lost the debate. To the best of my knowledge the problem has arisen because we have won it. We have convinced the Minister of the need to replace "encourage or advocate" by the word "incite" and the problem arises because he does not propose to accept the amendment which will give this effect. What we are anxious to find out, as Senator O'Higgins pointed out, is if the Minister's mind is open enough to accept further the logic behind the arguments attached to further amendments and all these further amendments will find their place in a new piece of legislation to be presented to us before Christmas.

Mrs. Robinson

In the Minister's absence I said, in speaking on section 4, that I felt that, although one welcomes the Minister's decision to change the wording from "encourages or advocates" to "incite", I viewed his manner of doing it as, in fact, an insult to the Seanad because it implied that, since he was not prepared to put through this amendment while the Bill was going through this House, he had no intention of accepting any other amendments and, therefore, we were wasting our own time and the time of the House and the time of the staff, who are kept here unnecessarily late in the year. It is not just this particular section which has come up, in a way which did not come up in the Dáil, and this must be emphasised— we are not necessarily repeating what happened in the Lower House; we have, in many ways, gone on different lines, other arguments have been put forward and the Minister has even conceded that he will repeal the early Forcible Entry Acts, the six Acts, and he proposes to do this in different legislation. I put it to him this morning, and I quoted the Criminal Justice Bill in support, that the appropriate Bill to repeal earlier statutes of forcible entry is the Prohibition of Forcible Entry Bill. This should be done in a Schedule to this Bill and, if the Minister does intend, as he said, to repeal them, then they should be repealed in this section. This is a second matter which has come up in this House for which an amendment ought to be brought in and other matters have been raised and, I think, convincingly argued to the Minister.

There is an extremely important matter of principle here. It is vital that we know at this stage whether the Minister has an open mind on the amendments which still remain on the Order Paper, whether he would consider, as he has done here, bringing in an amendment or accepting an amendment to a later section, and whether he will amend this Bill as it is going through the House, or whether he proposes to do this in a later Bill that he will bring in before Christmas. If he says that any amendments which would convince him he would leave and bring in in a Bill before Christmas, then he is abusing the Parliamentary process. This would be a great insult to this House and we should forthwith go home.

Tomás Ó Maoláin

Is that the alibi now?

Mr. E. Ryan

We are dealing with section 4, whether or not section 4 should be passed. That is the only thing we should be dealing with at this stage. Whether or not the Minister is or is not going to accept other amendments, or whether or not certain amendments are going to be put down in Report is, in my submission, quite out of order and I suggest that the House should be confined to discussing whether or not section 4 is to be passed.

Mr. Russell

I think Senator Ryan is quite wrong. This debate is very much in order arising out of the offer, or part-offer, which the Minister made approximately four hours ago and the whole debate has reference to the Minister's offer. I am sure the Minister would agree. It is not a question of who won or lost the debate, but are we now discussing possible amendments to an amending Bill that may be brought in before Christmas.

Acting Chairman (Mr. Nash)

Senator Russell, we are discussing section 4.

Mr. Russell

I appreciate that but this goes back to the Minister's offer made earlier on this afternoon when I was in the Chair where you are now sitting. The Minister has indicated that he is prepared to accept one amendment, that is to substitute the word "incite" for the other two words in the Bill, but he is not prepared to bring that in on Report Stage because, he argues, there would be a delay of three months. The Minister may have good reasons for wanting the Bill without delay. He may have information which we have not but, if he has he should tell us; otherwise, we are discussing amendments that will not be accepted.

Even if the Minister were to accept the remaining 14 amendments, he would not include them on Report Stage of this Bill. They would be included in the draft of a new Bill brought in sometime before Christmas. Is that not a fact? We are, therefore, discussing possible amendments to possible pending legislation not to this Bill.

Acting Chairman

The discussion has taken a very wide range. The matter under discussion at the moment is that section 4 stand part of the Bill. I have given very considerable latitude and I now find I must make a definite ruling that Senators will have to confine themselves to that question in any further speeches.

Mr. O'Higgins

The Minister has not answered.

Mr. Boland

An Cathaoirleach

Section 4, please.

Mr. J. Fitzgerald

We had a large number of amendments on section 4. The Minister today indicated that, as Senator Boland said, he was not satisfied with the phraseology in some of the subsections of section 4. When I made my contribution after the Minister had made his announcement that he would amend this in another Bill, the Minister had left the House. I welcomed what the Minister had said, but I still expressed doubt because he was not bringing it in now.

I would appeal to the Minister to reconsider his attitude on that. In spite of what Senator Honan said a few moments ago, I do not know anybody in the country who is concerned with it today, the 19th of August, or yesterday, the 18th of August, or even two weeks ago when we had a marathon debate on the Forcible Entry and Occupation Bill. There is too much happening in another part of our country to be concerned with this.

Mr. Honan

The Senator must be living in a fool's paradise.

Mr. J. Fitzgerald

I am not living in a fool's paradise. I go around and I have my eyes and ears as open as Senator Honan or any other Senator. I would appeal to the Minister to accept the amendments on Report Stage—he cannot accept them on Committee Stage now because the amendments have been dealt with—and wait until the Dáil reassembles and bring them before the Dáil. There are only 70 or 80 days to go and there is nobody outside in the streets awaiting the passing of this Bill. There are very few concerned and I would appeal to the Minister to do the big thing in this and to be the first Minister to come into this House while the Dáil was in recess and accept amendments to a Bill that he was putting through the Seanad.

Professor Kelly

May I say something a bit more general about this, while not departing too far from section 4? Even from the Minister's point of view I would have thought that it would be an advantage to him and to his Department to have the benefit of the arguments put up, no matter which party are in power or out of power, in the Seanad on a technical legal Bill or on a technical financial Bill or on a technical Bill on health, or anything else like that.

Drafting, which has been laughed at and sneered at as being a thing that lawyers spend their time at, is very important and I could quote to the House famous instances where little was made of drafting at the legislation stage, but where the people ended up very much the losers as a result. The most conspicuous example was in the debate on the enactment of our Constitution in 1937 when Mr. de Valera told the Dáil—there was only one House of the Oireachtas then—that he was satisfied with the form of Article 41, section 3, subsection (3), which is the part of the Constitution which Mr. de Valera intended to regulate the position of persons who got divorced abroad. The people on the Opposition side, the Fine Gael lawyers—and those were the days when there were lawyers in Fine Gael in greater numbers than in Fianna Fáil——

An Cathaoirleach

What is the relevance of this to section 4 of the Prohibition of Forcible Entry Bill?

Professor Kelly

I will make it relevant in a second, if the Chair will allow me to finish this little story.

An Cathaoirleach

These are historical dissertations. If I allow one Senator to indulge in them, then I cannot prevent others from producing dissertations of their own.

Professor Kelly

Mr. Boland

I indicated earlier that basically I am in broad agreement with the idea behind sections 2 and 3 of this Bill. Anyone involved in public life in this city or county, or, indeed, in most parts of the country, would have to feel the same way. My main objection to this Bill is not to the Bill as a whole but to this section. I do not propose to go into the legal arguments of the merits of the words "encourage""advocate", "incite" or the various definitions and derivatives of those words. My objection is first of all to the apparent interference with the right of the Press which exists in subsection (1) and the freedom of the individual which exists in subsections (2) and (3).

The Minister has to a fair extent assured the House that the freedom of the Press will not be interfered with by subsection (1) as it stands. In the normal way one might be inclined to accept that if the Minister says the Press will be quite free to continue as before under subsection (1) this is a fair enough argument. At the same time, the Minister has said—and again it is very difficult to try to paraphrase him—that sometime before Christmas in one or other of the Houses of the Oireachtas he will introduce in legislation something to correct section 4 (1) as it stands at the moment. At the same time, he has said that section 4 (1) as it stands at the moment does not inhibit the Press in any way. The Press and eminent legal people and others have said that section 4 (1) does inhibit the Press, while the Minister has said it does not.

This afternoon, for the first time, the Minister apparently admitted that there may be—let us just leave it as reasonably as that—something wrong with section 4 (1). The argument in connection with the freedom of the Press boiled down to what the Press thought and what the Minister thought. Were it not that I do not wish to detain the House, it would be quite easy for me to quote editorials from the four national daily newspapers and from one of the two evening national newspapers—the only evening newspaper which carries an editorial—condemning this subsection of this section. Other publications and periodicals have also condemned in a most outright and categorical fashion the provisions of this subsection. The Minister has said that this is not correct.

The Minister has indicated—in a somewhat oblique way—that this subsection may not be as perfect as one might have wished such a piece of legislation to be. I should be glad if the Minister could enlighten the House —in a reasonable way and without getting heated or upset about it—on whether he now feels that there may have been some validity in what the proprietors, publishers, editors and reporters of the various journals, which criticised or condemned this provision of the Bill, said and whether he feels that his suggested modifying legislation will go some way or all of the way towards satisfying them and towards allaying their fears. From the point of view of many Members of the House and many members of the public, it would be very important that that matter be clarified now on Committee Stage.

In relation to subsections (2) and (3), in common with many other Senators who have spoken, I have grave reservations about "guilt by association"— which Senator Kelly has said is a term which the Minister objects to. Whatever one might like to call it, in relation to the fact that one may find oneself being prosecuted because of a statement made by an organisation of which one is a member, in fairness there ought to be a much clearer definition given to us and, preferably, written into the Bill of what the word "consented" really means.

I do not want to be contentious about this but, perhaps, it would bring it home in a clearer fashion to Senators on the other side of the House if it were suggested to them that if the particular unit of the Fianna Fáil organisation to which they belong at some time in the future issued a statement, whether through ignorance or malice aforethought or for whatever other reason, which would fairly clearly be in contravention of the Forcible Entry and Occupation Act—as it will be called by then—they might discover themselves, as a member of the group, apparently guilty by association because of the statement which could have been issued in their absence.

Mr. O'Higgins

But they have no difficulty about resigning nowadays.

Mr. Boland

Let us come to that. There are resignations and resignations.

It relates just as easily to any other Member of the House as it relates to Senator Killilea or the Minister or indeed, anybody sitting around here whether he be a politician or not. He may be a very genuine member of an organisation and want to so remain but that organisation may issue a statement, ignorantly or otherwise, which apparently then places all of its members in peril of being found guilty of an offence under this Act.

On another level may I suggest— and nobody should be able to complain about this because it relates to myself —as I suggested earlier to the Minister, four or five local authorities, mainly county councils in this country, have already passed resolutions calling on the Government to nationalise the lakes and waterways of the country and to make them available to everybody. As an extension of that, it could very well happen that an elected body, a local authority, quite possibly a county council or even a corporation, might pass a resolution and if it were in keeping with the previous resolutions passed it would be of a unanimous nature, saying they considered that the people who at present hold fishing rights on certain stretches of waterways have no right to do so and that those waterways should be available to all of the people in the locality.

It could fairly be argued that that was according to subsection (1) of the Bill encouraging or advocating the people of that locality to go fish the waterways which were, by law if not by right, private property at present. Then suddenly the members of that county council, wherever it may be— and may I, as a member of the Dublin County Council, suggest that I doubt if there would be very much opposition to a suggestion like that in the Dublin County Council or in many other councils throughout the country— especially members of local authorities who are Members of this House would find that they had apparently encouraged or advocated the commission of an offence in accordance with section 4 (1). They would find it very difficult, apparently, to deny they had so done.

May I remind the members of local authorities who are also Members of this House in relation to the very delicate matter of being surcharged for expenses which the Department of Local Government auditor will not subsequently ratify? For example, if 15 members are present at a meeting and ten vote for a charge being levied and five vote against and a roll-call is not recorded the five who voted against will be held just as liable for the surcharge as the ten who voted in favour and all 15 will be made to share the surcharge between them in 15 equal parts. The only people who will not have to pay the surcharge are those who did not bother to attend the meeting.

In the very same way, a member of a local authority who attended a meeting and who fought against or spoke against the encouragement or advocating of the right of private people to fish in rivers which are now private property, could discover that they were apparently also guilty although they had spoken against it because they might not have made clear that they did not consent to the subsequent making of a statement or the recording on the record of that local authority that the local authority were in favour of that particular thing.

I have taken those two examples, one relating to a Member of the House, and it could be any Member, and the other in relation to local authorities, because it affects many people here, in the hope that it might bring home a little bit more clearly to the Members of the House that the word "consent" in regard to the making of the statement is far too vague as it stands. These two simple examples struck me as I sat here and listened to the debate. Surely public representatives ought to realise that there is quite a deal of difficulty in this section and in subsection (2) as it at present is written.

Carrying that a little bit further, surely they can see that in all sorts of organisations all over the country and in all sorts of spheres, there is tremendous opportunity for people either maliciously or deliberately to provoke organisations of which they are members into making statements which would clearly be in contravention of this section and which would also be a definite embarrassment to genuine members of that organisation which might not agree with this statement but who would find under the terms of this section as it is written, extreme difficulty in proving that they did not consent to the making of the statement or in no way agreed with it but, at the same time, saying that they wanted to remain members of that organisation. This is why I have outlined the examples as I did.

This is the reason why I want to suggest to the House that subsection (2) as it stands is one that will create tremendous difficulty for all sorts of people in all walks of life and quite possibly and most probably for all public representatives serving on either public bodies or private bodies which they are members of. The wording in regard to consent to the making of the statement in subsection (2) is tremendously wide and far too vague and the Minister ought now to define, if he can—perhaps, he can, I do not know—what he feels this means and in which way he feels a person can make clear that while he wants to continue to be a member of an organisation he does not agree with a particular statement which that organisation may have issued.

I suggest, for instance, instead of the words "to the making of" there ought to have been inserted the word "consented" and then the words "to the appending of his name to" and then continue the statement "shall be guilty of an offence". In that case nobody could be prosecuted under this section unless he had agreed to his name going out in conjunction with the statement. He would then be very clearly be seen to be associated with that statement.

As far as I can see and I hope the local authority members who think about the surcharge element—and it is a pretty fair analogy in this particular case—might realise this. People could be present at a meeting and conceivably vote against the particular issue and then could go away quite happy that they had done what was right and what was legally right, but discover a statement made afterwards and because they had not said they did not consent to the statement being made, although they had voted against the principle which was the cause of the statement, would discover that they, too, were apparently guilty and as guilty as the others under section 4. This is why I consider subsection (2) to be far too wide. The difficulties and defects of subsection (3) have been outlined quite adequately and there is no point in my holding up the House in discussing them except to say that I agree with most of what was said already in connection with subsection (3). Quite frankly, this really is the contentious section of the Bill. It is the part of it that has created the most opposition, the most apprehension and the most bad feeling. If this section in its entirety could be either deleted or amended, then we would be left with a Bill with which I could not find too much disagreement. I might disagree with certain parts of it in common with some other Members of the House. However, section 4 is the nub of the matter.

One of these dailies has so little doubt and so little grudge about section 4 of this Bill and has so much confidence in the statements that have been made by the Minister that it announced publicly that it is instructing all its staff to carry on, just as they always have done before this Bill was mentioned or before it will be an Act. As Senator Horgan stated, all the newspapers here——

Mr. Boland

On a point of order, for the record——

Tomás Ó Maoláin

For God's sake, shut up. We had to listen to the Senator for 40 minutes.

(Interruptions.)

An Cathaoirleach

Senators may not be referred to in those terms.

Professor Kelly

Senator Ó Maoláin is like a refugee from "The Shadow of a Gunman".

An Cathaoirleach

I suggest that Senator Boland should reserve any reply he may wish to make until the leader of the House has finished.

Mr. Boland

I shall also refrain from being as rude as Senator Ó Maoláin.

Tomás Ó Maoláin

I listened to the Senator for 40 minutes, telling fairy tales. We talked about these organs being very conservative and being business concerns. Surely one of our great national dailies, which is conservative and a business concern, would not issue editorial instructions to all its staff to that effect, if they had the pessimistic outlook on section 4 that has been expressed here today by Senators on the other side?

Mr. Lyons

Surely Senator Ó Maoláin's statement is correct about a certain newspaper, but I think that he should have given the name of the paper. If that paper issued instructions to its staff, it might well be that they wanted the Minister to take action against them under the section in order to expose the injustice of the approach of the Minister for Justice. I thought, when the Minister came in here yesterday and made his opening speech, that his apparent aggressiveness at that time was going to bring the thunderbolts down on his head. Fortunately, that did not happen. I find that he has mellowed during the two days and that is to his credit. He has had to stand the barrage of legal arguments put up on this side of the House but these were not for the purposes stated or implied by some Senators on the other side to the effect that it was a filibuster. Everybody on all sides of the House realises that more people are concerned about the terms of this Bill than any other Bill that has passed through this House possibly since the State was established, except for the type of legislation that was needed in emergencies. The newspapers were concerned not alone for the fact that they might be guilty and liable under this section, but also because they were concerned for the freedom of all people, and concerned that it would not be a criminal offence to act in a manner that would outline the freedoms that we all desire and to see preserved by the Oireachtas.

I think that possibly the Minister had made up his mind. I know that it was suggested on this side of the House that he had made up his mind that, no matter what happened, he was not going to accept amendments in the Seanad. If that is the type of approach I fail to see why he did not introduce, or get the Leader of the House to introduce, the guillotine. It would be just as well to introduce it as to listen to arguments put forward here with all the best intentions and do nothing about them.

The implication of the Minister's statement was that he did intend to introduce legislation to clarify the meanings of certain words. That indication which was rather grudgingly given by the Minister is at least something but it is a sad state of affairs that it is necessary to amend the Bill before it has become law and that this incongruous way will have to be adopted in order to amend it. Possibly the rules of this House and the legal gentlemen should give some attention to this and may make it possible for amendments to be introduced here and carried and become law without the recall of the Dáil or without the Bill having to go back to the Dáil. Perhaps a constitutional change might be necessary.

An Cathaoirleach

The Senator is straying a bit far from the section.

Mr. Lyons

Yes, Sir, I believe I am. It is not intentional and it is not a filibuster.

Progress reported; Committee to sit again.

The Seanad adjourned at 10 p.m. until 10.30 a.m. on Friday, 20th August, 1971.

Seanad Éireann debate - Thursday, 19 Aug 1971

Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage (Resumed).

Acting Chairman

Tá

Níl

Seanad Éireann debate -
Thursday, 19 Aug 1971