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.
I should like to add, by way of explanation, that amendment No. 15 is consequential on what I have suggested. It is to remove any doubt that incitement is not possible if it is addressed to the public at large. Senator Nash or Senator Ryan said the other day that it was common in legal usage to speak of inciting an individual but of encouraging or advocating people at large. I accept that it is not normal usage to speak of inciting people at large and it is for that reason I have added the words in amendment No. 15 in order to make it clear that incitement for the purpose of this section can be constituted notwithstanding that the words alleged to make up the incitement have been addressed to the public at large.
That would be something which a newspaper editor would clearly understand. Let him know exactly where he stands, which the words "advocate and encourage" will not. A newspaper editor, anybody working in the Press or on television or anybody speaking at a street corner will be well able to see where the line is between simply encouraging or advocating some kind of activity and actually inciting it, as Senator Robinson said, putting somebody up to it. That is what incitement is.
I agree that somebody who puts another up to forcible entry or forcible occupation ought to be guilty in some degree of this offence, but somebody who in the context of general wide-ranging political discussion—perhaps something of the kind Senator Horgan gave us about the natural right of somebody to be housed, incidentally advocates the taking over of vacant property —ought not to be under the sanction of the criminal law. That object will be achieved if some amendment in the terms of the various amendments under section 4 here is accepted.