Prohibition of Forcible Entry and Occupation Bill, 1970: Report and Final Stages.

Debate resumed on amendment No. 7—
In page 3, between lines 9 and 10, to insert the following new section:
"( ) Each enactment specified in the Schedule is hereby repealed to the extent indicated in the third column of the Schedule."
—(Senator Robinson.)

I wish to support these amendments. The Minister has announced an intention to repeal the Acts. If this is his intention and if it is desirable to repeal the Acts, it seems to me that the Bill which is before the House is the appropriate place to find this repeal.

I assume from the Minister's speech that the amendment does not fully achieve in his view the extent of repeal required. This legislation is the only legislation applicable to forcible entry and occupation. The Minister has, in the course of the debate in this House, spoken on this subject from time to time in a contradictory—perhaps, even confused—way. He seems to take the view that the Acts are unenforceable in Irish conditions. In my Second Reading speech I expressed agreement with him that these Acts would not be easy to enforce and one did not even need to know that Professor McGilligan expressed this view 16 years ago to see the difficulties in enforcing in the district court Acts of Richard II.

The Minister has also seemed to suggest that there is some doubt as to the applicability of these Acts, as to whether they are in force. You cannot repeal what is not in force. You cannot repeal what is not the law but the Minister has announced his intention to repeal. By suggesting in this House that there is doubt in regard to the applicability of the Acts he has deteriorated from the quite clear position that he took up in another place when he said that the Attorney General accepted what had been said in that place to be a theoretically correct statement of the law, that it did exist, was applicable, was in force but was not enforceable.

A particular Deputy—brother of the Leader of my party in this House— correctly says that that antique legislation is the law but I think says incorrectly could be enforced as the law. Could we get clarity on this point? The Minister was entirely correct in what he said in that other place. He was entirely right in agreeing to the proposition that was presented to him by a learned member of the Bar that these were laws applicable in Ireland.

From the learned contributions made in the course of this debate by our colleague, Senator Robinson, who has given many illustrations of how these Acts are regarded as being in force in England for which they were first devised, it is quite clear that the common view of lawyers in England and Ireland is that these are the law and were made such by Poynings Law here with regard to the first three of the proposed repeals.

I am not going to turn to any learned treatise to support the proposition that they are the law but, perhaps, I would be permitted to say—in this I believe I am speaking also for those who carried the burden of the heat of the day here on my left, Senators Kelly and O'Higgins—that the House is indebted to Senator Robinson for her erudite contributions which have added very significantly to the stature of this Assembly. To my surprise, Senator Cranitch, a respected Senator, referred to the differences between tweedledum and tweedledee. That was a Philistine remark from one who would not accept the difference as one between tweedledum and tweedledee if a pupil of his ignored some grammatical correction.

The distinctions which Senator Robinson made here were relevant, precise and expert. Just as we would listen to Senator Cranitch speaking with learning, expertise and skill on his subject and respect him when doing so, he should respect Senator Robinson and those others—excluding myself—who have such learning and expertise on another subject. There is a difference between tweedledum and tweedledee if tweedledum puts you in jail and tweedledee keeps you out. This is precisely what we are doing here. We are enacting legislation which will have this effect according to the language we use. I am not going to depend upon the kind of learning which has been dispensed here for the benefit of the country and the people.

Looking at a very simple textbook, a book which the ordinary solicitor would look at to see if there is anything in the Minister's suggestion which has been made from time to time since he came into this House, and which he did not make in the other, that these laws are not applicable, I quote from O'Connor's Justice of the Peace:

Forcible entry or forcible detainer of lands is an indictable misdemeanour in common law and under various statutes...

He then names the first three contained here:

——and a felony under an Irish statute...

and he then names the fourth of the proposed three to be repealed. I do not think that there is any more than a school debating point involved in the Minister's question that since Senator Robinson thought these Acts were so good, why did she want to repeal them. Our position on that is quite clear. This Bill is to be enacted. It is a bad Bill. It will have to be amended to make it a good Bill, but there is no point at all in leaving the confused situation that you will have if you have any doubt as to whether these old Acts have been impliedly repealed. It is clear that it is not the intention of the legislature that they should continue to be the law; it is clear that they are the law until this Bill is enacted, and it is clear that we should replace them by what the majorities in this Parliament want and at least prevent long, tedious and expensive days in court, which will arise if there is any scope left to anybody to argue that rights are conferred on them by virtue of the provisions of these Acts, of which they have not been deprived by this.

We should at least take up Senator Nash's point about having the ordinary people being in the position of being able to understand what the law is, by letting the ordinary people look at at least one Act, to find out what the law is with regard to forcible entry. They are going to have their difficulties; we have had our difficulties. However, the logic of the whole position is is that these Acts should be repealed. The Minister wants to repeal them anyway. This is the place to repeal them and he is left finally with having to admit, I think rather shamefully, that he is in the position that he cannot listen to views expressed in this House, even if he is convinced that they are right; that he cannot amend a Bill which has come to this House, which is constituted by the Constitution, and which has cast upon it the duty of considering legislation; that he cannot, even if he agrees with something in any one of the many different points that have been made here, do anything about it, or to be more correct, that he will not do anything about it. It is not a question of eight or ten weeks. There are no howling mobs in the street. There are no howling mobs about to go into the streets to do other things, in which we should all like to support him in combating but the mischief designed to be dealt with by this Bill is not a mischief which is going to require the attention of this House, or require legislation to be enacted today, tomorrow or next week. It is quite clear that the reason is that the Minister does not want to go back to the Dáil. That is no reason for rejecting the operations and the deliberations of this House. The burden of his position as Minister should enable him to be prepared courageously to face Dáil Éireann again, if there is anything worthwhile said here which convinces him that he should amend the Bill. He has indicated that there has been at least one thing which has convinced him; he has indicated that there is a second thing which has convinced him, and that is that these Acts should be repealed. He will not repeal them in this Bill because he would have to go back to the Dáil to do so. He should run the gauntlet on that. It is his duty to do so. At any rate I support amendments Nos. 7 and 21, which have been taken together.

There is an important principle involved in this matter, and I feel that the Minister would be abrogating that principle if he were to accept this amendment. I commend Senator FitzGerald on his speech. It was trying to make bricks without straw. His strongest argument is really a political argument. He says that the Minister is not prepared to accept this repeal because it would involve his having to go back to the Dáil, which he is not prepared to do. That will read well in the newspapers tomorrow.

I do not believe that at all.

I have too high an opinion of Senator FitzGerald to believe that to be the reason for his saying it but it will appear and it will be a great big stick in the hands of the Opposition and of people who want to make up their minds, with whom the wish is father to the thought. In an endeavour to make bricks without straw Senator FitzGerald has made an absolutely excellent speech which I commend in every way, both for its form and for its matter. However, we must be realistic. There are a few things that we must remember. If these statutes were formally repealed in this Bill we would be giving to them a life, a constitution and a reality which they have not got. Furthermore, if an Act of Parliament purports to be repealed by a subsequent Act of Parliament, and if at any time the subsequent Act of Parliament itself be repealed, you revise the entire original statute. Therefore, if at some time in the future this Forcible Entry Bill is repealed, and if the Forcible Entry Bill in itself and in its own terms had purported to repeal these statutes, if they do exist—I shall deal with that later—you are forthwith revising them. That is the first and important principle in the matter, and that is one very good reason why the Minister should not endeavour to repeal them in this statute.

I have listened to this debate very carefully, and despite the fact that it has been suggested that the Minister has had, perhaps, the over-enthusiasm of youth, he has acted in a most commendable and in a most conservative manner in regard to what he said about these alleged statutes. I deliberately use the word "alleged" and I hope to be able to establish to the satisfaction of this House that they are only alleged.

An Act of Parliament in England, in order to have the force of a statute at all, according to the classic definition of Coke, must have the threefold assent of King, Lords and Commons. Anything less than that, whatever its persuasive force, has not the absolute authority of enactment. This threefold assent cannot refer to a time earlier than that of parliamentary government based on modern constitutional theory. I shall give the reference from Coke. It is Law in the Making by Carleton Kemp Allen, who is Professor of Jurisprudence in the University of Oxford.

Looking at these alleged statutes, we must first examine their background. In all this period—1300, 1400, 1500 A.D. —Acts of Parliament were not as we understand them today. We are speaking about hundreds of years prior to the time when James alleged the divine right of kings, when all fount of knowledge and authority was alleged to come from the king and only the king and when these various enactments or what purported to be enactments were known even by different names and each different name had a different force or a different authority. Some of them were carta, others were assisa, others were known by the name of constitutio, others by the name of provisio, others by the name of ordinatio and others by the name of statatum. Each had a different force and a different effect. The way in which they were promulgated in those days was that the sheriff of the local county was told to go to his bailiwick and announce the enactments publicly so that the people would understand them. Sometimes he did this but sometimes he met some of the local titled people, had a good night, dinner, drink, dance, et cetera, and he forgot to announce them.

This is the sort of statute we are asked to treat as valid in this country. There was no obligation on the judges in England at any time, even when these laws were passed, to give them effect and as late as 1610 in Bonham's case that was set out expressly. I quote from Law In The Making in a reference to Bonham's Case from Coke:

And it appears in our books, that in many cases the Common Law will control Acts of Parliament and sometime adjudge them to be utterly void.

That was the accepted principle in those days.

Great stress has been laid on the fact that these Acts were referred to and were deemed to be adopted by a recent decision of the English courts. I quote from the extract of the decision which was given by Senator Robinson at column 139, Volume 71 of the Seanad Debates:

The Court thinks that both forcible entry and forcible detainer were probably offences at Common Law involving as they did breaches of the peace.

That is the strength and fundamental basis of these cases, not the fact that they were statutes. We have to look at the background in which these Acts of Parliament were introduced. They were introduced to prevent brigandage at a time when various lords and knights gathered their soldiers and retainers and attacked and plundered the lands and homes of others. The following are the facts of one of these cases which led to the passing of one of these Acts of Parliament. I quote from a case that is mentioned in The Criminal Law Review, June 1971:

The attacking force marched in military array to the scene of action and began to attack by night. They soon forced their way into the dwelling-house and killed as many of the inhabitants as they pleased. They ravished the widow of Michael de la Beche and frightened her chaplain to death. They made a considerable number of prisoners whom they forced to march with their own body in quest of new adventures.

These are the sorts of things that the king at the time decided he would endeavour to control. I do not know under which of the various headings one would put this occurrence, even if there were an official copy, of which there is not. We do not know if it received the royal assent or the royal seal. The holder of the royal office at the time might not have been able to sign, but ordinarily he was supposed to affix his seal. Many judges in those days refused to act on these alleged statutes because there was no evidence before them that they did receive the royal seal. These alleged assisa, constitutio, it does not matter what they are called, have got a terrific run in this House. They have got a terrific run in the newspapers and in dealing with them it is like trying to ring a bell by pulling the bell rope with no bell at the ringing end. In this case, of course, the belle was at the pulling end and I give her the utmost credit for the case which she has made. I bow to her persuasiveness and to the manner in which she got, not only the ordinary folk but even such exceedingly experienced and brilliant people as my colleagues here on the front bench on the other side to say "well, there must be something in them, even though we cannot find out exactly what it is".

These Acts of Parliament, in so far as they are Acts and in so far as they have ever been considered by the English courts, have been dealt with as if they were merely recommendations of the common law and to understand them, we must understand how the common law grew and developed in England. It was deemed to be the common assent, the common feeling of justice of the English people. If the king was of the opinion that something was so bad, so terrible, as in this case which I have quoted which led to the passing of one of these statutes, then he was deemed to be expressing the common assent and common consent of the people and upon which the judges could act if they wished and in respect of which they need not act if they did not wish. It had no more binding force on them than the common law of England. That is confirmed in the decision which Senator Robinson quoted and an extract from which I have already quoted.

This got a tremendous run, not only at the Second Stage, but also at Committee Stage, and in letters to the Press and, I notice, even in a reference by an esteemed editor of one of our newspapers. I should not be surprised if the good man has red ears because there is little doubt in my mind that some of the younger men down the ranks in journalism have long since seen how utterly silly the whole thing is and if they were not skilled lawyers they probably have asked for the opinion or the advice of some lawyers friend of theirs and no doubt they are sniggering at the silliness which made their editor grasp this as one further stick with which to beat the Minister, to beat the Government and to beat this Bill.

I have also been interested in and rather cynical about some of the proponents of this mixed group who call themselves the Civil Rights Association who have little respect for the law of this country—some of them have great respect, I do not wish to be offensive—and if you asked them to respect the laws of England introduced before the time of Cromwell you would be lucky to get away with your life. I have been interested to see these people quoting in their leaflets that they have scattered among us the fact that we have an English Act of Parliament which covers this and that; therefore, it is not necessary. Having given all this fictitious airy-fairy nonexistent statute such a run, we now want with bells to ring out its funeral march in this House. In my opinion that is completely unworthy. I would consider the Minister to have a lot less intelligence than he has if he were to accept this amendment and leave himself in the trap that he was giving formal sanction to the validity of these statutes and that if at any time this Bill were repealed, the repealing of the Bill would automatically revive these statutes for what they are.

Go bhfóire Dia orainn. We are talking about the repeal of the Bill already and it is not yet passed.

There is no Bill which is passed in any democratic institution which can incorporate in itself a right of not being repealed, in other words, which can make itself unrepealable. If you have got to revoke things like this, the proper place to do them is in a revision Act. In one Revision Act, 1867, there were 1,300 such dead dross Bills revoked. That is the proper way to repeal these if they exist, by one omnibus Bill which does not and cannot give them any sanction.

You would need the guillotine for that.

One thousand three hundred were repealed in one Act of Parliament in 1867.

We had a Bill of our own like that. Do not mind 1867. In 1967 or thereabouts we had one.

An Act of Parliament stays there ad infinitum but by non-user, as by non-user of everything else, for all practical purposes an Act of Parliament revokes itself.

C.K. Allen would not agree with you about that.

I would say that for most of us it is a good thing that should exist, because if it did not exist any man in England today who did not attend church service on a Sunday could be prosecuted and penalised.

That is repealed.

I shall give the Senators some more, and I shall take recent Acts. I will not go back as far as 1300, 1400 or 1500. Under the provisions of the Dockyards Protection Act, 1772, it is a capital offence to destroy any of the King's victualling stores; you immediately forfeit your life by an Act of Parliament that is still on the Statute Book but by an Act, which I would say, no longer exists.

It is not on the Statute Book. It is repealed by the Criminal Justice Act.

That is repealed.

Would Senators please stop interrupting? This is getting a bit far from the amendment.

1300 or 1400 is not today or yesterday We are dealing with a period prior to Cromwell, prior to the execution of King Charles I, prior to the time when the King, Lords and Commons in England met formally to approve anything. I feel to repeal these, other than in an omnibus Revision Act, would be attaching to them a dignity and importance which they do not deserve even if they do exist.

I had not intended to speak on this amendment because I regarded Senator Robinson as having very creditably established a corner, so to speak, on the question of these old statutes, but I simply cannot remain seated having listened to the speech which Senator Nash has just made. In spite of the superficial politenesses which he distributed all round him, from the Minister, on the one hand, to Senator Robinson, on the other, taking in Senator Alexis FitzGerald on the way, his contribution, if he will allow me to say it without taking offence, adds nothing to this debate and very little to his own credit. Either the old Acts which Senator Robinson has spoken about, and which I frankly confess I have done no research into, are in force or they are not.

At an earlier stage in this debate when Senator Robinson mentioned them first, I pressed the Minister to give us his view as to whether or not they were in force. He very fairly said there was some doubt about it. I quote from one of his interventions in the Seanad debate of the 19th August, Volume 71, column 434:

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.

In the following column he states:

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 Reform Bill which is the appropriate place to repeal provisions of that kind.

That is fair enough. There is some doubt as to whether they are in force or not, but the doubt in favour of their being in force is evidently strong enough to move the Minister, and those advising him, to repeal these statutes. Whether they are repealed in an omnibus statute Law Revision Bill or in this Bill makes, as Senator Nash well knows, absolutely no difference whatever to the validity of their repeal.

With respect to Senator Robinson, it was I who first raised this argument that this Bill is the right place to repeal them. If this point is raised again I am prepared to come into this House at the next opportunity I get, if an amendment is relevant to the point, and bring with me a cartload of Irish statutes which contain repeals of previous statutes in pari materia dealing with the same problems which are regarded as having outlived their usefulness and do not any longer meet their function and are rightly repealed by the new statute on the same lines.

I do not despise Senator Nash for doing this. I suppose I would do the same if I were in his position. He is coming to the defence of a Minister who is caught not in one trap but in about 15 traps in this Bill. He is doing his best for him and I do not despise him for that. If he opens the book he quoted from a few minutes ago, Law in the Making, by C.K. Allen he will find——

The Senators argue about an Act of 1381 and the second city of this country burns.

This was the very point which we made when it was proposed to take this Bill in August. That was what Senator Ó Maoláin described as "carry-on" on our part. The Chair will bear me out on this, that this side made the point that this was no time——

That was the Bill, not an Act.


I am going to have my say whether it suits the Minister or not. The point which the Minister has made in interrupting my speech was exactly the point which was made by all sides on the Opposition benches here when the Leader of the House announced that it was proposed to take this Bill this month. We made this point as forcibly as we could and we were denounced in the vilest language from the other side for doing so.

Deal with the Bill not whether an Act of 1381 is in force.

I am going to deal with you. When we——

Would the Senator please address the Chair?

I beg your pardon. When we said that we thought it inappropriate to discuss this measure in a month when, as the Minister has just said, the second city in Ireland is burning, we were called "brazen-faced rubbernecks" on the far side by a Senator whom I have never heard contributing in any other way to the debate, "filthy blackmailers" by Senator McElgunn who is a man of education and should know better than to use language like that and "nauseating hypocrites" by Senator Ó Maoláin. That is what we were called for making the point which the Minister himself has just made.

My point is with reference to the Act of 1381 on which we spent one hour or one hour and a half this morning.

I have allowed the Senator to reply to any relevant interruptions. Would he now come to the amendment?

The Minister knows that I accept that the situation in regard to these Acts is one of doubt. He knows that I have not disagreed with his proposal to do away with these old Acts if there is any doubt that they might be in force. I repeat that this Bill is the right place to repeal them. I want to point out for Senator Nash's benefit a further trap, which Senator Nash's speech has brought to my mind and that the Minister is going to be in if this Bill goes through with these old statutes unrepealed. Senator Nash will know, if he opens C.K. Allen and reads that book again, that desuetude or obsoleteness does not repeal a statute in common law. He also knows that a statute passed for a specific purpose cannot be repealed by a later sidewind. If, as for all I know is the case, one of the old statutes which Senator Robinson has mentioned to this House, was passed for the specific purpose of protecting tenants against forcible repossession by landlords, if may well be that this Bill which the Minister is producing here does not affect that statute. It may well be, therefore, that a person could bring a private prosecution under one of these old statutes even after the passage of this Bill into law, so that if the Minister is really anxious, as he appears to be—perhaps, it is not fair to put it like that—or if it is his intention, and it is implicitly his intention even though it may not be his political objective, to leave landlords out of the application of this Bill, he is taking, in my view, a risk by leaving these old statutes unrepealed. If I am a tenant and I am forcibly dispossessed by my landlord, the Minister is taking the risk that I can seek privately a prosecution, that I can privately lay informations against the landlord under one of these old Acts and succeed on the basis that this Bill has not repealed them either expressly or entirely.

Senator Nash can go back to C.K. Allen and see if he can find any point which will disprove what I have just said. I do not mean to lecture him, but I consider that the points of view which he has put up here can only be described as an attempt to provide breathing space and some defence for a Minister who—not, perhaps, through his own fault but through a combination of faults on the side of the Government and the fact that they do not give themselves a chance to consider these things before they bring them into either House—is in a serious trap or in a series of serious traps.

The most babyish point—I am sorry to have to use that word because it is a babyish point made, I know, in defence of the Minister by Senator Nash—was to the effect that if we were to include, as Senator Robinson presses us to do, this repeal section in this Bill, and if the Bill itself were repealed, then these old statutes would revive. That may be so, but who would be so foolish in repealing an Act—and it is not usually from this side that we get appeals to the common sense of the Government or of the Houses of the Oireachtas—as to overlook the fact that if the Act itself contained repeals these old statutes might revive? Who, therefore, in repealing such an Act would not provide a saving section to make it plain that the repeal did not extend to the former of these so that these Acts would not revive?

Senator Nash, who is a very intelligent lawyer and rightly gives the House the benefit of his expertise, by raising a point like that does his reputation no credit.

Before my very few remarks on this amendment, might I ask the leave of the House to add to the amendment the Forcible Entry Act, 1634, 10 Charles I, 13th Chapter? I am making this request in view of the only substantial objection made by the Minister to this amendment that it did not include the Forcible Entry Act, 1634 and I am asking the leave of the House to include this now.

Senator Horgan has asked leave of the House to move an amendment amending his amendment. Does the House agree that this should be done?



It is not agreed.

This is an extraordinary turn of events, if you do not mind me saying so, because, unless I am very greatly mistaken, this was the one point of substance made by the Minister as to why he could not accept this amendment. He said he could not accept it because it failed to mention the Forcible Entry Act of 1634, an Act which he argued very strongly might be considered to be in force and might be considered to be in need of repeal. I have in the simplest and most obvious way possible offered to make the Minister's point for him and the Minister's party have refused to accept this. This to my mind in a very simple way exposes the hypocrisy of the entire operation on the other side of the House. The Minister has asked something; I have offered it to him and his party have refused it. It is extraordinary that this should be so. On the amendment itself I do not propose to repeat the arguments which have been made excellently by various people, including Senator Kelly and Senator FitzGerald, except to draw attention to what I feel is the most serious aspect of all. The Minister seems to be in some difficulty. At times he says these statutes are unenforceable and at times he says he intends to repeal them.

Until such time as he repeals them the possibility of conflict arises. For us at this stage to be passing a Bill that opens up the possibility of such conflict is very wrong of us and certainly not in any way a fulfilment of our responsibility towards the framing of legislation. We have absolutely no indication, for example, of when the Minister proposes to introduce this famous Statute Law Reform Bill. I would be slow to believe that it would be soon because it seems to me that the natural corollary of the dispute over this amendment and, indeed, over the Bill as a whole is that if this amendment is rejected the whole thing will be buried for as long as is humanly possible. There is a certain stage at which one's anger and indignation at the Minister's refusal to accept such an obvious amendment modulates into some sort of pity for the position in which he finds himself except that pity is a very dangerous emotion where the Government party are concerned. They wax fat on it; I believe they win elections on it.

They always have a baby in their arms.

As Senator Kelly has said, we had first one and now a second occasion on which the Minister has, in effect, admitted that we are right and, however halfheartedly, promised to do something about it later on. The interesting thing about his promises on this occasion is that for each of the occasions on which he has agreed that he is in the wrong, he has asked——

I beg the Senator's pardon. He is taking just a bit too excessive a liberty. I agreed that I was in the wrong? On what grounds does the Senator make that statement?

Why does the Minister choose to make changes in the Bill he has piloted so assiduously through the Houses of the Oireachtas?

What changes am I making in regard to this amendment?

Unless I am very much mistaken the Minister has agreed to enact the repeal of these Acts in a Statute Law Revision Bill.

Yes. It is not that I agreed at the request of anybody, because I was lectured for days and weeks by Senator Robinson on how great the Acts were. I said I regarded them as unenforceable; I did not know whether they existed or not as part of our law. I said it was purely academic, it did not matter a damn whether they did or did not exist and that when some Statute Law Revision Bill came along which would be repealing hundreds of Acts I would shove these in as well for all that it mattered. Now Senator Horgan makes the point as if —whether he is part of the Opposition or whatever he is—he or they were pressing on me for months past to repeal these wretched Acts. Up to the time she put down her amendment Senator Robinson, whom I assume the Senator is following, was telling me how great they were and that they should be left there and that the Bill should be withdrawn or repealed. The Senator is going beyond all bounds in the sort of statements he is making now. It is typical of this false debate about this false point, a matter of pure academic semantics that do not matter tuppence.

As regards whether the Minister has agreed that he is wrong or right, I accept the Minister's right to put his own interpretation on the facts. I trust that he will allow me my right to do the same. The obvious reason why there has not been a vast campaign to repeal the ancient statutes up to now is that these statutes, assuming they are enforceable, provide for persons a kind of protection which is not available to them if this Bill becomes law.

Why is the Senator trying to repeal them so?

I shall tell the Minister why we are trying to repeal them: it is because we are trying to show the Minister the absurd logic of his own situation, a logic which he does not seem to be disposed to accept. I think the interventions of the Minister mark an all-time high in interruptions in this House. I do not intend to reply to them in any great detail: I shall leave that to Senator Robinson who has the privilege of winding up in the House.

To return very briefly to the point which I was making before I was interrupted, it seems to me quite likely that if, as is possible, the discussion of subsequent amendments shows up other weaknesses in this Bill, unless the Minister applies some form of legislative birth control to his Department. we will be up to our eyes in amending legislation for the next 25 years. This sort of Bill will provide material and employment for generations of future Ministers for Justice. I am reminded forcibly of a piece of doggerel which— I do not know if I can quote it correctly—is roughly to the effect that even the smallest dogs have fleas to bite them; these fleas have smaller fleas, and so on ad infinitum. I can see this kind of attitude exemplified by the Minister in refusing to accept this amendment as creating a situation of unparalleled complexity which may waste far more of the time of this and the other House than this Bill has.

I expect that it is because I have not been as long in this House as others that I have not reached the degree of cynicism about our parliamentary institutions that I can accept without a sense of shock the attitude of the Government to an attempt by Senator Horgan to correct the only substantial defect that the Minister was able to point to in this amendment, the fact that it was not entirely complete in the Acts which we are seeking to have repealed. The reason for this — and I apologise for it — is that I had not got the Committee Stage debate report available to me. It was not available until Tuesday and I had to have the amendments in before that. Therefore, my memory was not sufficiently accurate on it.

I accept the point that the Minister made on this. The logic of his own position is whether he is going to accept the amendment or not, but at least he accepts that we can amend the amendment to comply with the point that he made. Not to do this is really a travesty of any logical position of any good faith. I register a sense of shock and disappointment that we have reached that stage even in a prolonged debate.

The Minister has said that he is surprised that I moved this amendment to repeal the earlier statutes because I expressed such fondness for their underlying philosophy and I again and again said that I preferred the position under the old statutes where it was an offence for any person forcibly to enter with violence or with a multitude of men any property, even if he was an owner or had an estate or interest in it. I reiterate that. What the Minister does not seem to be aware of is that I am completely logical and consistent in moving this amendment, because in the next amendment which we will be discussing, amendment No. 9, I shall try to correct this Prohibition of Forcible Entry Bill even at this stage to bring us back to the philosophy of the old statutes, so that we shall have a modern 1971 Act which will reflect the same thinking, that we do not want forcible entry to be legal for anybody. It must be made a crime and there must be modern punishment for it. Therefore, I am attempting to repeal the old statutes and to re-enact the philosophy of them and not to have a change in the philosophy in 1971 which, in effect, licenses private violence to anybody who has any colour of right or colour of title as owner to the particular property, or the permission of the owner.

Therefore, I have been consistent in this amendment and the Minister is right in saying that I prefer the philosophy of the old statutes. There was more humanity in the 14th century than there appears to be in August, 1971, in Ireland. Also, I agree with the Minister that many of the statutes are old, but the position is not one of academic semantics. The position is one of trying to establish what the criminal law in relation to forcible entry is in this country. For me and for others in my profession it is not a matter of semantics. I happen to be a Professor of Criminal Law in Trinity College, Dublin; I happen to have to lecture on criminal law. At the moment I do not spend very long lecturing on forcible entry, although I have referred my students to the recent case law in England in the last couple of years where there has been, as I have read into the record, a number of prosecutions under these forcible entry statutes.

I shall now probably have to spend a fair bit of time distinguishing between the law in England and the law in Ireland in relation to forcible entry. I shall have to explain to the students, when this Bill becomes law, if it does under the present terms, that the law is different now in Ireland and that those with an estate or interest in any property or with the permission of the owner can enter with force and violence, contrary to the position under the old statutes, and this will not be a crime. I shall be in doubt, if this amendment is not accepted, as to the position in relation to the old Acts. I should have the same doubts that have been expressed by other Senators here. I shall put to them the argument which Senator Kelly mentioned and which I found very interesting and, I think, is a valid one, that it might be possible to bring a private prosecution against a landlord who forcibly occupied property in which he had some estate or interest under the old Acts. We shall have to spend a good deal of time comparing—and I would say we shall compare very unfavourably—the law in Ireland as it is enacted by this House in this session and the law in England as it is and as it is seen to be in the recent statutes. This is not tweedledum and tweedledee and this is not an academic point; it is a point which will take quite a lot of time, which is put forward with great seriousness and which, I feel, will not be regarded with any great favour in the classrooms of students of law who are the future lawyers of this country.

Another point which was made at some length by Senator Nash was that we were conferring an unreal dignity —I think that was the substance of his argument—on these old statutes by repealing them. I think the argument which Senator Kelly, Senator Horgan and myself made shows that it is not a question of resuscitating old statutes purely for the sake of either filibustering or for the sake of niggling little points. It is a real argument. I put it to Senator Nash that he must find it extraordinary that in the Criminal Justice Bill which the Government brought in and to which I already referred on Committee Stage, 159 old statutes—some very old and some less old—were to be repealed. I referred to some of those statutes on Committee Stage.

I do not want to take up the time of the House now by referring to them again but what about the Statute of Marlborough, 1267, and the Statute of Westminster the First, 1275? They are older statutes than any of the statutes I mentioned in my amendment. What about the Forcible Entry Act, 1786, which was to be repealed in the Criminal Justice Bill. It is one of the statutes that we have included in the Schedule. I would point out to Senator Nash that the Government were prepared to repeal that Act in the Criminal Justice Bill. Why now, in this appropriate piece of legislation, would we not repeal it? Why would the Criminal Justice Bill be a more appropriate Bill in which to repeal a statute of forcible entry than a modern statute on forcible entry?

I do not think there is any point in trying to raise any further logical arguments. It is obvious that it is not reason that is wanted at this stage and that the Minister, by refusing to allow this amendment to be altered to include all the statutes which ought to be amended in this Bill, is showing bad faith in relationship to this amendment.

If I allow the amendment to be amended I must, therefore, if I am logical, accept the full amended amendment.

Yes, I agree.

I do not propose to accept the amendment and therefore, why should I allow it to be amended?

Amendment put.
The Seanad divided: Tá, 12; Níl, 22.

  • Boland, John.
  • Desmond, Eileen.
  • FitzGerald, Alexis.
  • Fitzgerald, Jack.
  • Horgan, John.
  • Kelly, John.
  • McDonald, Charles B.
  • Mannion, John M.
  • O'Brien, William.
  • Owens, Evelyn P.
  • Prendergast, Micheál A.
  • Robinson, Mary T. W.


  • Brennan, John J.
  • Brugha, Ruairí.
  • Cranitch, Mícheál C.
  • Crinion, Brendan.
  • Doyle, John.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Gallanagh, Michael.
  • Garrett, Jack.
  • Hanafin, Desmond.
  • Honan, Dermot P.
  • Keegan, Seán.
  • McElgunn, Farrell.
  • Nash, John J.
  • Norton, Patrick.
  • O'Callaghan, Cornelius K.
  • Ó Maoláin, Tomás.
  • O'Sullivan, Terry.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Walsh, Seán.
Tellers: Tá: Senators Horgan and Robinson; Níl: Senators Brennan and J. Farrell.
Amendment declared lost.

Amendment No. 8 has been ruled out of order. Amendment No. 20 is related to No. 9. Is the Senator willing to take the two together?

No. Amendment No. 20 is substantially different.

I move amendment No. 9:

In page 3 to delete line 12 and in line 13 to delete "if he is not the owner,".

In section 2 (a), which relates to the substantive offence of forcible entry, the words "he is the owner of the land or vehicle, or..." would be deleted. Then in subsection (b), which is really a follow on from that "if he is not the owner" would be deleted. Section 2 would then read:

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

(a) 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

(b) he enters in pursuance of a bona fide claim of right.

In other words, it would leave only two possible exceptions to the person who forcibly enters land or a vehicle and would not allow an exception in the case of the owner of the vehicle.

At this stage it must be clear from the Committee Stage debate and from the points raised on the Second Reading that the problem created by this Bill lies in the very wide definition of "owner". As a result of section I the position is that unless these words are deleted then a large class of persons will be exempt from criminal liability under section 2 of the Bill and we will be departing from what the Minister has described as my fondness for the principle under the old Acts that anybody who forcibly entered, anybody who entered "with violence or with multitude of hand", or with a large crowd, putting people in fear, would be guilty of a criminal offence.

I do not intend to speak at any great length on this amendment because the arguments have been made for it on the earlier Stage. I am not entirely happy with section 2 as it would be after the amendment, with the position that there would be two exceptions to it, if a person does not interfere with the use and enjoyment and leaves on request or if a person enters in pursuance of a bona fide claim of right. We have to remember that it is “forcibly enters”. I assume that anybody who forcibly enters under a bona fide claim of right will be somebody who had this claim in some sense. One could envisage the possibility of somebody having a claim of right to enter to inspect for the purposes of the sanitation or something of this sort because we are not talking about entering, we are talking about forcibly entering, entering with force and violence. The claim of right in this case would be a very narrow one. I would like to see it as a very narrow one.

To some extent there has been a muddled approach to this Bill, even in the debate, in regard to who would be excepted from the criminal liability for forcible entry. In many cases it has been forgotten that we are talking about forcible entry, that we are talking about entry with violence. This is something which should be criminal. It should be a blanket criminal offence as it is in England and as it is under the old forcible entry statutes, and we should be extremely slow to consider the possibility of anybody being exempted. We have exempted an enormous range of persons—the owner as defined so widely as any person with an estate or interest in land and the person on behalf of the owner or with the permission of the owner. It is not helping the position at all to include in it a tenant as well as an owner. I would not like to see a tenant given licence to enter with force or violence in circumstances under which he would have been criminally liable prior to this. I would prefer to see no exemptions granted. I would prefer to see the effect of the Bill being to prohibit the use of unofficial force, prohibit the use of violent self-help methods so that anybody who wished to gain entry into or gain occupation of premises would have to do so either by the civil remedies or by calling on the Garda Síochána.

I do not intend to go on at any great length on this. I am still somewhat shaken by the Minister's logic in regard to the last amendment. The effect of what he said was that he would not allow me to amend my amendment because if he did he would have to accept it. This is a very clear sign that he does not intend to accept this, or any of the remaining amendments. We are just wasting the time of the House and the time of very busy Senators on both sides of the House, by pursuing this at any great length. However, for the record, I want to make the argument.

I formally second the amendment.

I have to support this amendment if only for the reason that part of it, namely the part which seeks to delete line 13, appeals to me because of the impossible way in which "owner" is being defined. However, I want to draw the attention of the House to the further consequence of leaving the section unamended. If the House will consider the exemptions from liability to conviction which section 2 provides they will see that there are three of them. An owner, as defined in the definition section, even if he forcibly enters, is not going to be guilty of an offence. Then if I go down to paragraph (c) somebody who enters, even forcibly, in pursuance of a bona fide claim of right, is not guilty of an offence. If we look at (b) we find that the exempting condition consists of two propositions which are not disjunctive but both of which have to be fulfilled, in order to give somebody an exemption. In order to claim exempttion from liability under paragraph (b), in the case of somebody who is not an owner, he must be able to show that he has not interfered with the use and enjoyment of the land or vehicle by the owner—that is the first thing that he has to show—and secondly, he has to show, or the State has to disprove his proposition, that on being asked to leave by the owner or a member of the Garda Síochána in uniform, he did so with reasonable speed and in a peaceable manner. Both these conditions have to be fulfilled.

Suppose that somebody fulfils the second of these conditions, in other words, he leaves when asked to do so —peaceably and quickly—by the owner or by a garda. That does not let him out. He still has to comply with the first of these conditions, namely "not interfere with the use and enjoyment of the land or vehicle by the owner". There is no theoretical limit to the number of owners under this Bill. Since no priority is constituted between them, no one can possibly tell which person is under a duty not to interfere with the use and enjoyment on his part in the property concerned.

Suppose I take forcible possession of some property and commit a forcible entry. Suppose somebody who has no right of entitlement whatsoever in ordinary law, or even under this Bill—the Bill makes it plain that it does not confer any right to entry or occupation of land which did not previously exist—and such a trustee or a remote landlord or a mortgagee says: "Excuse me, I want to use and enjoy this property," and I say: "You have no right to do so. You have no more right than I have, but you have no right to do so, and I am going to deny you that." That means that, although the person to whom I have denied that use and enjoyment is no more entitled to it than I am, I have not satisfied the exempting condition of paragraph (b). I have no means of knowing which of the possible dozens of owners concerned I should be looking out for.

Suppose several of them arrive. I know that if the Minister for Justice were here he would be showing signs of impatience at these hypotheses, but these are things that anybody with any experience of law knows happen frequently. Truth in law is very much stranger than fiction. It happens all the time that cases which have not been foreseen crop up. Suppose several people, all classifiable under the definition section as an owner, arrive, in regard to which of them must I refrain from interfering with his use and enjoyment of the land in order to get exemption under paragraph (b)? I defy the Minister or anybody on the opposite side to tell me that. This is simply another instance. We could go on all day like this.

This Bill is a disaster. It is a practical, logical and constitutional disaster from start to finish. There is not a section of it about which some similar criticism could not be made. I do not think that Senator Robinson's amendment is going to cure very much. Like myself and other Senators on this side, she is doing her best to patch it up, as the debate continues. As the debate continues, the impossibility of making any sense out of this Bill, unless the definition section is radically changed, becomes more and more evident. What I think is sad is that the Minister knows perfectly well that Senator Robinson is right in a lot of what she says. I have not agreed with a couple of her amendments. However, he knows that she is right and that I am right in this. He knows that we were right in what we said yesterday about the definition section. Everybody on the other side knows that he knows it, but still this Bill is going to pass into law. Why? For a reason of pure administrative convenience, because he does not want to bring it back to the Dáil. There may be a political dimension in it as well. Perhaps for reasons that I cannot fathom or can only guess, or maybe for political reasons in his own party it would not be welcomed if the Bill were to come before the Dáil once again and placed at the mercy of dissident votes. That may be part of the reason, with which I should sympathise, if I were in the Minister's shoes.

Arguments have been put up—not by any means academic ones; sensible plain arguments—from this side in regard to this and other sections, which have remained absolutely unanswered from the far side, and which cannot be answered. Instead of doing what a sense of public duty ought to require a Government to do, to withdraw this Bill, and to work at it again and to try to improve it, and bring it back, if it is really necessary, they are going to "bullock" it through.

That is a new word. That is as good as "Lam-begging".

I know that Senator Ó Maoláin is more of a man for the lambeg——

To "bullock" it through is a new one.

Acting Chairman

Order, please.

A bullock is an animal which is not docile with people inexperienced in his management.

That is more likely to be a bull.

Acting Chairman

Senator Kelly on amendment No. 9.

The intention is to put this through no matter what flaws are discovered in it. There are serious flaws in it. Senator Robinson's amendment has directed my attention to this very serious one, that the lack of distinction between the theoretically innumerable people who can be classed as "owner" leaves somebody trying to rely on the exempting possibilities of paragraph (b) in a situation where he does not know to which of these people he must be careful not to refuse use and enjoyment of the property. That is the long and the short of it.

I am sorry the Minister is not here, or that in his absence there is not someone prepared to give the Minister's views on this amendment. I suppose it would be too much to expect that we could regard silence as consent in this case, and that the fact that the Members opposite are singing dumb should be taken as an indication that this amendment is going to be accepted. On the assumption that I should be mistaken in believing that, I want to say that I agree fully with the remarks which have been made in regard to the fundamental defect in this Bill, and that is in the definition section. Like Senator Kelly I am not entirely sure that this amendment would remedy the position to an adequate extent. It certainly would, to some degree, limit the disastrous ill-effects of the definition section.

I do not want to go over what we have discussed already. However, it is necessary to point out in connection with the amendment which we are discussing that the definition section in this Bill so far as owner of land is concerned is so wide and is extended so artificially that it makes reasonable consideration, even a reasonable guess as to the possible effects of it in relation to section 2, virtually impossible.

Senators will recall that the definition of "owner" given in the Bill extends to a person or persons having an estate or interest in land and to anyone acting on that person's or those people's behalf. In section I not only is that so but there is a blanket exemption from the provisions of this Bill for anyone who forcibly enters another person's property but who has the permission of the owner in the extended sense that the word "owner" is used in this Bill. Relating that to section 2 you have the Gilbertian situation where the Minister sets out in section 2 solemnly to create a new offence, having already tied one hand and the four fingers of the other hand behind his back by the loopholes which are already created in the Bill by the definition section.

Apart from that, from a purely drafting point of view amendment No. 9 is one which should receive the serious consideration of the Minister. If this amendment were accepted this section would read, "That a person who forcibly enters land or a vehicle should be guilty of an offence unless he does not interfere with the use and enjoyment of the land or vehicle by the owner...". That would be a simple statement of the intentions of the legislature in this Bill, that any person who forcibly enters land or a vehicle would be guilty of an offence unless he does not interfere with the use and enjoyment of the land or vehicle by the owner.

Is it necessary to say "unless that person is the owner"? Obviously, if the owner enters land or a vehicle, no one else is interfering with the owner's use and enjoyment of the land or vehicle. If the owner enters, that situation does not arise and, consequently, this section would be less complicated, more easily understandable, if it were worded in the way in which this amendment suggests.

I agree with Senator Kelly. Even if this amendment is accepted I am not confident that it remedies to a sufficient extent the grievous flaws and defects which appear in the Bill arising entirely from the extended definition of "owner". However, it would go in some measure at least towards making the Bill understandable to the ordinary person, cutting out some of the artificial difficulties which are being created by the attitude of the Minister and the Government in refusing to allow one word or one comma to be amended at this stage.

I protested before and I do so again. I do not think it is a proper way to treat either House of the Oireachtas. If we are required to come here on 26th August to consider a Bill being proposed to us by a Minister we are discharging a constitutional duty in examining and considering the Bill. We are entitled to expect that any Government with respect for the democratic process on reflection, on consideration, and on being convinced of the arguments advanced in support of amendments, would be prepared to accept those amendments. We know that this is merely a futile gesture to discuss any amendments or to discuss this Bill. We have effectively received notice from the other side of the House that this Bill is going to go through this House as it was introduced here and that the Bill is not going back to the Dáil.

I sympathise with the practical reasoning behind what I believe is a definite decision by the Minister not to go back to the Dáil. I sympathise and recognise the argument that a certain amount of time would be lost in the implementation of the Bill if it has to go back to the Dáil. At the same time that kind of attitude by any Minister, any Government, or any group of Senators, is an insult to this House. If this kind of thing is to continue then so far as I am concerned I would fully share the views of those who think it is only a sham and a mockery to have a second House in this State when the Dáil is not sitting and the sooner we fold up voluntarily the better. If this kind of thing is allowed to continue I cannot see the people putting up with having a second House of Parliament which is not allowed to function, or allowed to do the business it should do in discharge of its constitutional duty. We are simply a sham and a mockery in our parliamentary set-up and the sooner it is ended the better.

The only people who can remedy that situation are the Government and the Senators on that side of the House. If the Senators on the far side of this House make up their minds that they are going to ensure that this House will have a proper place and a proper parliamentary function to discharge, they can force the Minister's hand. The Minister cannot "bullock" this Bill through the House, as Senator Kelly stated, without the consent and acquiescence of every Senator sitting on that side of the House. The remedy is in their hands. If they want to see the prestige of this House enhanced, if they want to see this House held in respect by the people, they will insist that their Minister will listen to argument and will accept amendments to Bills whether or not the Dáil is in recess.

Senator O'Higgins seems to forget that it was not the Minister who landed us with this Bill in the month of August. It was the Fine Gael Party and the Labour Party who held it up in the Dáil for nearly 12 months, as a consequence of which we did not get it until the last day of July. That is why we are forced to sit during August.

The Fine Gael Party and Labour Party did not hold it up from February to July.

Acting Chairman

We are on amendment No. 9.

With regard to the last remarks made by Senator O'Higgins, I am surprised to find him using the new term which Senator Kelly has invented of "bullocking" this Bill through the House. The Dáil took nearly 100 hours to deal with the Bill. So far we have taken about 35 hours. There has been a very free, wide-ranging and intelligent discussion on it. The experts on legal matters on both sides of the House have certainly justified themselves in connection with this Bill. I do not see any way in which Senator O'Higgins can relate the lack of democracy to the fact that this Bill has had an airing of three weeks so far here and has occupied about 35 hours of our time.

With regard to the opinion of the people of the House, surely if the Senator is such a believer in democracy and such an exponent of it, he recognises majority rule and that facts are facts. If there are enough people in this House who believe in the Bill and are prepared to support it, then those who do not believe in it and are not prepared to support it must accept the decision of the majority. Otherwise this democracy about which we hear so much talk cannot operate.

That is the position here. There are enough people here who believe that this is a good Bill and they are prepared to support it and vote for it. It just happens that there are not enough people on the other side to oppose it successfully. Therefore, they must accept the fact that if the Minister does not accept their amendments, if he is advised and believes himself that the Bill he has produced is better without their amendments—it could happen that he believes that the Bill is better in every respect without every amendment they have produced—then he is quite right to stick to it.

If he finds merit in any of the amendments put forward by the Opposition, then he should accept these amendments. Obviously, he does believe that the Bill he has produced is as good as can be produced and surely the Opposition will agree that there is some intelligence on this side of the House and that the Minister and his advisers also have some wisdom? Even though there are distinguished legal luminaries on the other side, they have not got all the brains or wisdom and they must give credit to the Minister and his advisers for having intelligence, a knowledge of the law and for being able to interpret it just as well as distinguished graduates from and professors in the National University and Trinity College. The Bill has had a very good airing here and there can be no quarrel about its being rushed. There can be no quarrel about it being "bullocked", "lambegged", rail-roaded or any of the other terms used by the very free Press which we have and which is so afraid of section 4. We should hear no more about that section.

The Minister told us with a winning smile the other day that he was the first man in years to accept a Seanad amendment. Is that not as good as admitting that what we said was true?

The position in which Senator Ó Maoláin finds himself is an embarrassing one because he genuinely wishes to maintain the reputation of this House. At the same time, he is unfair to the parliamentary parties in Opposition in blaming them for the position in which we find ourselves in this House today. He cannot include in that charge the independent Senators from the two universities.

The Government control the business of the Dáil and the Seanad. The Government have failed to communicate any genuine sense of urgency with regard to the period of eight to ten weeks which must elapse before any amendments here that might recommend themselves to the Minister could be dealt with in an amendment to this legislation which could be brought back to Dáil Éireann.

Senator Ó Maoláin said the Minister would accept any amendments that he thought were good. He has accepted two amendments. His decision to substitute "incite" for "encourage or advocate" and his decision, announced in the course of the debate in the Seanad, to repeal the statutes and another statute referred to in the previous amendment is recognition of the desirability of doing so. But he will not do so in this Bill. I do not go so far as to say that this renders the whole debate nugatory or that the House should be abolished because we find ourselves with a recalcitrant Minister in relation to this particular piece of legislation. What we say here may find itself embedded in some future piece of legislation if it reaches the minds of the people on the other side, whether they be advisers or Ministers.

I am sure the Senators on the other side would agree that it leaves a sense of impotence with regard to the immediate value of the case we have here. Everyone here knows that every syllable in this Bill will be enacted precisely as it came into the Seanad. This must be bad for the reputation of the Seanad and there is no denying this. Talking about what Fine Gael and Labour did in Dáil Éireann has nothing to do with it. It does not mean that we are here because they debated in the way in which they did. I have not analysed the course of the debates but the Bill was introduced in January. It did not come back into Dáil Éireann until much later. There were more than 100 debating hours between January and August and it was not all necessarily packed into the last days of the Dáil session.

I support the amendment which has been proposed on the grounds that it is just one other attempt to cure a defect which we on this side are convinced exists in the Bill arising from the definition. Even if that amendment is not accepted, it is right that it should be put down. Senator Kelly has drawn attention to a further difficulty arising on section 2 and the language used in paragraph (b).

I should like to draw attention to another matter and to ask that it be noted for any future amendment of this legislation. I am not clear about its significance and I think it arises from bad draftsmanship. There is no definition of the "owner of a vehicle" other than the extraordinary one which makes a person acting on behalf of the owner not defined a person who is an owner within the definition. If someone has to argue the significance of the definition of "owner" in relation to land, attention will be drawn to the fact that there is no definition of "owner" in relation to a vehicle. There is a failure here to recognise that you can have different interests in a vehicle. "Vehicle" sets out ex-haustively all the categories of vehicles that are to be caught within the definition. It means an aircraft not in flight. In some cases the leases are so drawn that they only take effect when the aircraft is in flight so that they would not come within this category. There are leasehold interests in vehicles. Who is the owner of an aircraft which is leased? Is it the lessor or the lessee? Under the terms of denying use and enjoyment of the vehicle, whose use and enjoyment is being denied? Is it the use and enjoyment of the lessee or lessor? It is relevant on this amendment to make that point.

Is the amendment being pressed?

We have not heard the Government's views on it yet.

I should like to hear the Minister's views. Is he prepared to accept the amendment?

Senator Ó Maoláin did not go so far as to say the amendment was not acceptable.

I did not mention the amendment but I shall mention it now. The amendment certainly is unacceptable.

Acting Chairman

Senator Ó Maoláin has already spoken. If the Minister is not offering, I will have to call on Senator Horgan to conclude the debate.

He does not know the Government's attitude.

The amendment is unacceptable.

Acting Chairman

The Minister may or may not offer to speak, it is a matter for himself.

The Minister has decided the amendment is unacceptable.

In view of the attitude of the Government as indicated by the Minister for Defence, briefly I should like to say that the amendment would have cured some of the problems which arise from the definition section and here I agree with Senators who have supported the amendment. That is where the major flaw in this Bill lies. This amendment would do something to correct it. It will also bring us back to the position as it was under earlier Forcible Entry Acts where as a society we did not condone any private violence, any forcible entry of that sort, and it would keep us in line with the position as it still prevails in England. It would prevent the Prohibition of Forcible Entry Bill having the unthought-out but disastrous effect of licensing private violence by anybody who has any colour of title to the property.

The Government did not intend this to happen. They have not put sufficient thought into it and the matter was perhaps not raised sufficiently in the Dáil. This is why we have a second Chamber in our democratic system. We have a second House which looks again at a piece of legislation and if a substantial flaw is detected it is pointed out in all seriousness by Senators, not for the purpose of making any political capital. I speak for all Senators in this regard but I speak with even more confidence for the two Senators promoting this amendment. We are not politically aligned; we are not trying to score points at this stage. The flaw has been pointed out in the definition section of the word "owner" and to my mind we are increasing that flaw by exempting this wide category of people from criminal liability for violent conduct. Anybody looking round Ireland today, with the forces that are loose, with the violence that is in the streets, must regret the idiocy and the stubbornness of allowing this licensed violence to take place and of allowing the ludicrous situation to prevail which was condemned as barbarous in the 1400s and since that and which is still condemned in Britain. Therefore, I shall be pressing this amendment.

Acting Chairman

In order to enable a separate decision to be taken on amendment No. 10 I am putting the question in the following form: "That the words ‘he is the owner' stand part of the Bill."

Question: "That the words "he is the owner' stand part of the Bill" put and agreed to.

Amendment declared lost.

I move amendment No. 10:

In page 3, line 12, after "owner" to insert "lawfully entitled to occupation" and in lines 13, 14 and 15 to delete "the owner" and substitute "such owner".

Amendment put and declared lost.

I move amendment No. 11:

In page 3, between lines 18 and 19 to insert the word ", or", and a further paragraph as follows:

(d) he enters in the exercise of lawful authority.

Amendment put and declared lost.

I move amendment No. 12:

In page 3, after the word "vehicle" in line 20, to insert "after being requested to leave by the owner or by a member of the Garda Síochána in uniform".

I do not intend to keep the House very long. I referred to this matter on Committee Stage. There are two distinct offences, the offence of forcible entry and the offence of forcible occupation, one of which is set out in section 2 and the other in section 3. Section 2 provides very clearly that if a person who may be guilty of an offence of forcibly entering leaves the property or vehicle when he is asked to do so by the owner or by a member of the Garda in uniform he will not then be guilty of the offence of forcibly entering. Section 3 is the section which deals with the offence of forcible occupation and for some reason the built-in safeguard of providing that a person is not guilty of an offence if he leaves when requested to do so is not included in the section.

There are probably two ways of looking at this. One is that the offence of forcible occupation can only take place when there has first been the offence of forcible entry and that section 3 is an extension of section 2. On the other hand, it could be contended that a person could be found guilty of the offence of forcible occupation but could not be prosecuted or was not guilty of the offence of forcibly entering. The Minister set out very clearly several times in the course of the debate on this Bill various methods whereby a person could enter a property in a rather unorthodox fashion but that he would not be guilty of an offence of forcibly entering under this Bill.

The Minister said that in his opinion somebody who entered property through an open window, or by trick got the owner to leave the property and then entered the property by the door and closed the door leaving the owner outside was, for some reason or another, not guilty of an offence of forcibly entering. If they stay inside apparently they would be guilty of an offence under section 3; in other words they would stand accused of being in forcible occupation. Subsection (1), section 3 says: "A person who remains in forcible occupation of land or a vehicle shall be guilty of an offence...." My amendment merely seeks to change that so that the person who remains in forcible occupation of land or a vehicle after being requested to leave by the owner or by a member of the Garda Síochána in uniform shall be guilty of an offence. In other words, it provides for the person in forcible occupation only being accused of that offence, or only being found guilty of that offence if he were asked to desist from occupying the property and if he had refused to do so.

One of the points that strikes me about this is that people who might enter a premises and would not be guilty of forcible entry might incur the wrath or anger of the owner. Quite obviously, they would be likely to incur the wrath of the owner. You could have a situation in which he might decide that he would not ask them to leave and cease their occupation but would instead prefer to see them taken to court and they would, quite clearly, stand guilty under the section as it is worded at present. In other words, the owner of the property might decide that he would prefer to make an example of the unlawful occupier and merely by not requesting him to leave he would, under the wording of section 3 as it stands, be automatically guilty of an offence.

As I have said several times, I am in basic agreement with the aims of sections 2 and 3 and I think most of us here are. We would all like to see the unlawful entering or occupying of buildings stopped but that does not mean that the duty which falls upon Members of the Houses of the Oireachtas to ensure that even people who will be guilty of offences under a piece of legislation should not have their rights safeguarded also. Under the section as it stands, it seems to me that a person occupying property could, without being given the option of leaving, be prosecuted and on the evidence put forward in the court the judge would have no option but to find that person guilty, despite the fact that he had not been requested to leave.

Section 3 as it stands contains the words "A person who remains in forcible occupation...". The Minister's case, as I understood it in the brief discussion we had on this on Committee Stage, was that the word "remains" presupposes that they remain after having been asked to leave. I would be happy enough if that was clearly the case and that is all that the amendment sets out to do. As the sections stands, the words "... remains in forcible occupation of land or a vehicle..." do not at all make it clear that they remain there after they have been asked to leave. It could well be argued that the choice of the word "remains" is merely one which indicates that they are there for a period rather than entering and leaving again almost immediately afterwards. Consequently, the insertion of the words as outlined in the amendment would make it quite clear that they were remaining only after they had refused to leave on request of the owner or a member of the Garda Síochána.

I think the amendment would do that. It would make the section operate more fairly and make it as clear as is section 2 that a person would first be given the option of leaving and if he wilfully and deliberately decides to remain, then he is guilty of an offence but not until then. The section as it stands does not make that clear and could be interpreted in quite the opposite way.

I should like to second this amendment. I do not know whether there is much point in wasting time with it because of the obvious response that we are going to get whether the Minister for Justice has had an opportunity of considering it or not.

Let me add briefly to what has already been said by Senators O'Higgins, FitzGerald and Robinson. To say that nothing said here is going to have any effect is not only publicly insulting, an abuse of the privileges and constitutional standing of this House but also implies a gross waste of the people's money. I compute the overall cost of Seanad Éireann at around a quarter of a million pounds a year.

Acting Chairman

I do not think this rightly arises on this amendment. We are discussing amendment No. 12.

It is very relevant if they are requested to leave and that is what the amendment is about. It is very relevant to the question whether we should pursue this or not and I think I am entitled to ruminate a bit on that. Every sitting day here we are costing the Irish people on average £4,000. A day on which we sit here and arguments are put up which we might as well have saved our breath on involves a net loss of £4,000.

Acting Chairman

The Chair cannot see how that arises on this amendment.

I think that is a conservative estimate. It could easily be £5,000 if I were to put my mind to it.

The Senator could have saved all that if he thought that at the start. Why waste all our time?

Acting Chairman

Senator Kelly to continue on amendment No. 12.

We could run the country from Mount Street by edict or dictate and that would be cheaper still.

Mind you I would not like to bank on it.

Acting Chairman

We will have to have an orderly debate. We are discussing amendment No. 12 in the names of Senators Boland and Kelly. Will Senator Kelly get on with the amendment?

The virtue in the amendment proposed by Senator Boland is that it makes it possible for somebody, who has not forcibly entered premises, whose original presence there was lawful, for example, a permissive occupier, a licensee, or a guest, but who then refuses to go and barricades himself in, to be prosecuted. I think it is proper that somebody of that kind ought to be given an opportunity of thinking over the consequences of his conduct. The words of Senator Boland's amendment "being requested to leave" are bald and brief. A request to leave in practice includes persuasion and harangue. It may be that an owner in the ordinary layman's sense, who has had the permissive occupier on his premises, who withdraws his permission and finds the permissive occupier barricading himself in will come up and say through the keyhole: "I will give you some other place to live in if you will get out of this," or "We will see you right some other way." That, coupled with a request to leave is something which, perhaps, the kind of person I have got in mind might well respond to. It is the reality that a request to leave will probably be coupled with persuasion "Do not get yourself into trouble; do you realise you are committing a crime?; we will fix you up some other way", that, I think, makes it important as a preliminary before somebody can be convicted under section 3, in the case of somebody, at any rate, who has not forcibly entered. Somebody who has forcibly entered is committing an offence in any case under section 2 and section 2 contains the element of a request to leave by the owner or by a member of the Garda Síochána but section 3 does not contain that element and it is possible to commit the offence under section 3 without committing the offence under section 2. The amendment proposed by Senator Boland has then both logic and compassion behind it and I recommend it to the House.

Is there any common sense behind this? Can the House envisage a situation of a court finding a person guilty under section 2 where somebody will not have given evidence that the person was asked to leave?

They would break their oath.

Where is it in the section?

It would be absolutely unrealistic to imagine a situation where there would not have to be at least evidence that the person was asked, and asked several times, to leave.

They have sworn to apply the law.

No court, from a realistic point of view, would accept that there was evidence that the person had remained in forcible occupation unless there was evidence that he had been asked to leave.

It is not part of the State's proof, as the Senator well knows. The State would not be required to prove any such thing.

As I said before, I am glad I am not a lawyer. Surely if you charge a person under section 3 and section 2 sets out that if the person who is in forcible occupation is requested to leave and does so there is no offence, that is a defence in itself?

These are separate offences.

Acting Chairman

Senator Kelly has already contributed.

As I understand the position a person is prosecuted under section 2 if he forcibly enters and he will be able to escape liability for a criminal act under section 2 if the State fails to prove an interference with the use and enjoyment of the land or vehicle or his failure to leave, if requested to do so, with all reasonable speed and in a peaceable manner. Under section 3 we are visualising a situation in which a person did not forcibly enter at all. Having entered peaceably the charge against him is that he is remaining in forcible occupation. He is criminally liable, under this section, even if there was a failure by the prosecution to show that there was a request to leave which he had not complied with.

The judge will have to apply that if he is in forcible occupation, even if there has been no request to leave, he is liable. Senator Eoin Ryan is looking at me in a most compelling way. Although we are here designing legislation, or going through the motions of doing so, a judge, if he is doing his duty, will have to apply this section. The failure of the prosecution to show that there was a request to leave which was not complied with will be quite irrelevant to the question of proving the offence.

Senator Brugha asked a reasonable question and I think it deserves to be answered. The Bill makes it clear, and this has been understood by all from the start, that we are creating three new crimes. Each of those crimes is separate and distinct. It is not necessary for an offence under section 2 that there should also be an offence under section 3. There are two separate and distinct new crimes being created. Under section 2 there is the crime of forcible entry and under section 3 there is the crime of forcibly remaining in occupation of the land or vehicle.

Here we are dealing with section 3 which concerns forcibly remaining in occupation. Let us see what is meant in relation to this section. We are told that in this section "forcible occupation of land or a vehicle" includes "the act of locking, obstructing or barring any window". Relate that to the circumstances which have been mentioned by Senators Kelly and FitzGerald where they said" a person who is at one stage in lawful occupation and who locks a window". That is an act of force within the meaning of section 3. A person who has safely locked a window, even though he may have left the hall door wide open and even though he has gone to the trouble of opening every other window in the house, can become guilty of forcible occupation and can become guilty of the new crime being created under section 3 even though that person has never been asked to leave the house.

That, I think, is the kernel of the amendment being proposed by Senator Boland. It is manifestly a sensible amendment and one which should be accepted. I am reinforced in that belief by the very helpful contribution of Senator Ryan who could not visualise a court convicting a person under section 3 unless there was proof given that that person had been requested to leave. That, possibly, is the strongest argument in favour of accepting this amendment. Senator Eoin Ryan, in effect, has said that it is simply fantastic to believe that a court would implement this section without reading into it the amendment which has been proposed by Senator Boland. Is not that the effect of Senator Eoin Ryan's contribution to this discussion? Unfortunately, the court will not be entitled to read Senator Boland's amendment into this section unless Senator Eoin Ryan and the Senators sitting around him insist that the Minister inserts it into the Bill here and now.

This is quite unnecessary.

Acting Chairman

Senator Boland to conclude on amendment No. 12.

We have not been told whether it is being accepted or not. I do not wish to take the Minister at a disadvantage—I know he was not here while the amendment was being discussed—but I think we should have, at least, a formal indication.

The amendment is unnecessary because it is inherent in the offence created in section 3 that the person concerned must either have specifically refused to leave when asked to do so or must by his action and conduct have made it abundantly clear that he is not prepared to leave. The necessity for the amendment quite obviously does not arise.

I know the Minister, as Senator Kelly has said, is at a disadvantage in that he was not here when most of the discussion took place. The discussion was very brief but it made it quite clear how logical it would be to include these words in the Bill. I cannot accept the Minister's contention that the section, as it stands, makes it clear that it is inherent in the section that the person must have been asked to leave or must have no intention of leaving. It is quite obvious that a person who is in forcible occupation has no intention whatsoever of leaving as long as he is left there and no one interferes with him. That person might have every intention of leaving if somebody, being the owner or his representative, came along and asked him to leave and he realised that if he did not comply with that request he would then be guilty of an offence. It is quite obvious that he will stay in occupation until somebody comes along and says: "You cannot do this any more. This is wrong. Please leave or I will have you prosecuted under section 3." As it stands at present the people who are in occupation may discover that the very first notification they will get of the Forcible Entry and Occupation Act is when they are prosecuted under section 3, no option having been given to them in the first place to decide whether they wanted to continue in occupation so as to leave themselves open to that prosecution, or whether they wanted to vacate the premises so that they would not be in danger of being prosecuted under section 3.

The Minister has very clearly understood the situation by including in section 2 the very same wording as this amendment seeks to put into section 3 and it could equally be argued that if it is inherent in section 3 that the person must first be asked to leave before an offence can be committed then it must have been inherent in the offence outlined under section 2 that he had not committed an offence either unless he had been asked to leave by the owner or a member of the Garda Síochána. That was not the case. The Minister and his draftsmen included in section 2 this safeguard, this proviso, a safeguard not for the owner or for the aggrieved party but a safeguard for the person who is possibly guilty or potentially guilty of an offence under this Bill. The safeguard was that a person would not be guilty of forcible entry if he had left when requested to do so by the owner or a member of the Garda Síochána.

That safeguard should also be built into section 3. As Senator Kelly outlined so very well while the Minister was out of the House the offences of forcible entry and forcible occupation, while related, do not automatically follow one after the other. This is quite obvious also in that the Minister has set them out in two separate sections and made them into two separate offences. A person who had never gone anywhere near being guilty of forcibly entering could be guilty of forcible occupation. That type of person is not being given the safeguard in section 3 which the Minister gives the potential offender under section 2. The words are a very simple form of words. They have already been used in section 2 and the reluctance of the Minister to accept the amendment can only be interpreted by me as part of his general reluctance to accept any amendment to any part of this Bill. I join other Senators in thinking that we are engaged in nothing more than a futile exercise here.

Amendment put and declared lost.
Amendment No. 13 not moved.

I move amendment No. 14:

In page 3 to add after "offence" where it secondly occurs in line 35 the following:

"unless he is the owner of the land or vehicle, or has a bona fide claim of right to such ownership.”

In the section to which this amendment refers we have, what I think is in logic, an extraordinary position. In the preceding two sections, two of the three new offences sought to be created by this Bill are created. In the same sections exceptions to each of these crimes is written in in favour of, among others, the owners of property as defined in the definition section of the Bill.

I am assured on the very best authority that it is quite possible for an owner of property, as defined in the definition section, to commit an offence under section 4 of the Bill. I put down this amendment in order to ask the Government why they are not prepared to extend the exemption from the criminal law which was conferred on owners in sections 2 and 3 to section 4 as well. It seems to me that in logic they should be doing this.

When I read this section carefully before putting down my amendment I tried to work out for myself why owners of property, as defined in the Bill, were not granted exemption from one of the three crimes which the Bill seeks to create. I thought for a moment that perhaps it was a draftsman's slip, something that could happen to anybody. On mature reflection, however, it seems to me to be at least arguable that this decision not to grant exemption to owners from the criminal law in respect of the crime of advocacy and encouragement or incitement, whichever it may eventually turn out to be, is in some dark and dangerous way a subtle act of discrimination by the Government against property owners.

It is the property owners who have the right forcibly to enter and forcibly to occupy. If they have the right to commit offences under sections 2 and 3 and get away scot free why can they not have the right to commit an offence under section 4 and get away with it? Perhaps there is in this an indication of an attitude on the part of the Government party to private property at which many private property holders and owners throughout the country would perhaps rightly take alarm.

I would have thought that the Government party's attitude to private property was most adequately summed up in a single sentence by a former member of that party, Mr. Gerald Carroll, who said, and I quote from the Hibernia of today's date:

I am very much to the Right. I am opposed to Marxism and that is why I joined Fianna Fáil which appeared to be the only alternative.

I am asking the Minister and Government Senators whether this situation holds true——

A Senator

He was disillusioned.

——and whether the Government are not, even at this late stage——

Can the Senator only quote a former member?

I said a former member.

Can the Senator only quote a former member? He only quotes a former member.

I said a former member, I could quote from many others if I had taken the trouble to look them up but I thought this was a particularly apt representation of the Government party's attitude. Mr. Carroll is a former member because he believes, I presume among other things, that this attitude of his is no longer shared by the Government party, that the Government have abandoned their defence of private property and other things.


I am suggesting that the refusal of the Government to write into section 4 the same exemption as is written into sections 2 and 3 can be construed as an act of discrimination against property owners. I am asking for——


——a reassurance by the Minister that the rights of the owners of private property are not affected by the Government's arbitrary decision not to carry over into section 4 the privilege accorded to the owners of private property in sections 2 and 3.

It is now 1 o'clock. Would the Senator move the adjournment of the debate?

I will not take very long to conclude on this amendment.

We will continue until we conclude this amendment.

I would further call on the Minister to reassure us that, in drafting this section and in omitting to write in the rights of property owners as written into sections 2 and 3, he is not being influenced in any way by the dangerous and seditious doctrines of men like Lalor, Connolly and Mellows and the democratic declaration of 1919. The property owners of Ireland stand in need of such an assurance.

I should like formally to second this amendment. I allowed my name to go on it in order to allow Senator Horgan to throw the Minister's own logic at him and to say: "If you are exempting property owners from the criminal liability for forcible entry and for forcible occupation, then by the very logic of your situation you must also exempt them from section 4, and why has this not, in fact, been done?"

Subsection (3) of section 1 states that nothing in the Act shall apply to something which is done with the permission of the owner. It would be difficult to visualise a case in which the owner was encouraging and advocating people to enter property which he owned and, at the same time, to prove that that was not done with the permission of the owner. This illustrates the kind of cloud-cuckoo-land into which we are being asked to go in some of the amendments which have been put down to this Bill. It is an inconceivable situation that a person could, on the one hand, encourage and advocate going into his land and, at the same time, that that would not be construed by any court as giving people permission to do that. Let me say again, because it is necessary to repeat it again and again and again, since Members will misinterpret this Bill again and again and again, that sections 2 and 3 do not give the right to owners forcibly to enter land.

All I want to say is precisely what Senator Eoin Ryan has just said. It is indicative of the approach of some Senators to this Bill that an amendment of this kind is put down and proposed in a speech of the kind Senator Horgan has just made. We can assume that he was being ironic and that his speech is not intended to be taken seriously but it shows the level of farce to which——

We are being reduced.

——the whole thing can be, and is being, reduced with this type of approach to the Bill. The amendment envisages an impossibly unlikely and utterly ridiculous situation in which a person would incite the commission of an offence of forcible entry or forcible occupation in relation to his own property. Even if such a situation could or would arise the amendment is still unnecessary. The act of encouraging or advocating in such a situation would necessarily imply the grant of authority or permission for the entry or occupation by the person causing the incitement, that is the owner. Consequently, as Senator Eoin Ryan has just said, by virtue of subsection (3) section 1, there could be no question of incitement to commit an offence under either section 2 or section 3.

Then have we reached the fantastic situation under this Bill where an owner of property can deliberately set out to incite people——

He cannot commit an offence. That is just what I have said.

Quite, but he can with absolute immunity set out to incite people forcibly to enter property.

His own property.

In which property he may have a very, very remote superior interest and he can incite people to enter that property because he objects, for example, to the colour of the hair of the sitting tenant, or possibly because he objects to a particular plan for development which might have been proposed.

It is not an offence to break the windows in your own house. Does the Senator object to the law being that way?

Under this Bill, as the Minister has now explained, an owner with a very remote head interest in the land, a minute estate in the property, is entitled with absolute immunity—it need not be on radio or television—to call a public meeting, act as agent provocateur, make an inflammatory speech and urge a lot of hot-heads——

I wish the smile on Senator O'Higgins's face could be transferred on to the record.

——hot-blooded youths to go in and forcibly, not merely enter, but remain in occupation. There is not going to be any element of the criminal law which is being constituted in this Bill invoked against a man who acts in that way. We have been talking about discrimination. Surely this is discrimination. If I make an inflammatory speech because I have no interest in the property, I will be committing a crime under section 4.

If you break your own windows you do not commit a crime. Does the Senator think that that is wrong?

If someone with a minute interest in the property, who is never going to get occupation, but who objects to the colour of the hair of the sitting tenant in the property, makes an inflammatory speech, he is going to be immune.

If you break your own windows you are immune from prosecution. Does the Senator think that is wrong?

One of the many wise men I know must have had this particular situation in mind when he said one night: "Do you know, this would be a circus of a country if we could get enough canvas to put over it."

Before he sat down Senator Ryan said he wished to correct something: he said that there is nothing in sections 2 and 3 which gives any person a right to forcible entry of land. I am sorry if anything I may have said in proposing this amendment gave the impression that I thought this was the case; I did not and I agree totally with Senator Ryan that this is the case. However, he omitted to state the point of my amendment, which is that sections 2 and 3, while not conferring on anybody a right to forcible entry of land, confer on certain persons an immunity from criminal prosecution for forcible entry of land. It was this which I had in mind.

As far as the Minister is concerned I am very glad indeed that he recognises that there is such a thing as irony. I am very sorry indeed that he should fail to see the point of it.

Amendment, by leave, withdrawn.
Business suspended at 1.9 p.m. and resumed at 2.30 p.m.

I move amendment No. 15:

In page 3, lines 36 and 37, to delete "a statement in contravention of subsection (1) of this section is made" and to substitute therefore "words or acts which amount to an offence under subsection (1) of this section are used or done"; to delete "making of the statement" in lines 38 and 39 and substitute therefor "using of the words or the doing of the acts"; and to amend subsection (3) similarly wherever the word "statement" occurs.

This is another amendment which, frankly, I put down as a drafting amendment. It has not the same potential serious effects as other drafting amendments, and is probably the least significant of those I put down. I will briefly defend it.

It is based on the idea that the word "statement" in subsection (2) of section 4 is a word which in ordinary usage connotes a communication made in words written or spoken. It is far from clear that an incitement or, if you like, an encouraging or advocating which takes the form of gestures or pictorial representation on a placard would fall within the idea of "statement". I do not like subsections (2) or (3) and I have already moved unsuccessfully amendments to delete them from the Bill. I do not like the idea of group liability or of the reversal of onus of proof in subsection (3). I should be much happier if these subsections were not there. If we must have them, let them at least be useful, let them meet the general objective of the Government. The word "statement" is the wrong word here and it should be changed. So also should the words "in contravention of subsection (1) of this section". As Senator Robinson stated yesterday and as I said on a previous occasion and as a Deputy said in the Dáil, the logical content of this clause is to catch within it anybody who says something which amounts even to denying the existence of subsection (1). I realise that this is a point of no great practical substance but it would be neater if we must have subsection (2), little though I like it, if it read in the way which I suggest, that is, if the words "a statement in contravention of subsection (1) of this section is made" were cut out and if we had instead "words or acts which amount to an offence under subsection (1) of this section are used or done" and to make corresponding amendments throughout the rest of these two subsections.

From the discussion on Committee Stage on this point I was under the impression that the purpose of amendment No. 15 put down by Senator Kelly was to overcome what he felt was a difficulty about the phrase "a statement in contravention of subsection (1)". He and possibly another Senator made the point that that in itself would not amount to an offence. On that basis I considered this amendment to be based on the assumption that it was considered there was something faulty about this phrase. I could have regarded that assumption as without foundation and I am satisfied, as is the parliamentary draftsman who has taken a special look at this since the Committee Stage in the light of the point then made by Senator Kelly, that that phrase means, and can only mean, a statement that would amount to an offence under subsection (1). No court could have any doubt on that point. Today Senator Kelly extends that to seek to cover what in his proposed substitution would be covered by the words "the doing of acts", and he refers to pictorial representations as possibilities of that. Admittedly, section 4 does not appear to cover that but there is no serious danger in it and I do not feel an amendment on those lines would be warranted to cover that sort of situation. It is clearly incitement by words rather than by pictorial depictions of somebody or something. The use of the word "statement" in this section is deliberate and I am happy to confine it to the use of words, whether oral or written.

I made both of these points on Committee Stage and not one. It is likely that what I presume the Minister means is true, that no judge or justice would entertain an objection based on the faulty drafting, or what appears to me to be bad drafting, in the first line of subsection (2). I do not put the point forward as having any special substance but it would be a better section if the wording were different.

So far as his statement is concerned I do not agree with the Minister. It is quite likely that the number of occasions on which a prosecution based on a pictorial representation or on gestures amounting to an incitement forcibly to enter and occupy would be small compared with other cases in that category, but I still think the choice of words is unfortunate. I wonder whether a powerfully emotive rhetorical question inscribed on a placard could be described, without torturing the ordinary use of language, as a statement.

Suppose I paraded up and down saying: "Are we going to allow property barons to keep people out of houses?" That is a rhetorical question. I do not think any Senators would describe it as a statement. I do not wish to split hairs about this but I am thinking all the time of what the situation will be for the unfortunate gardaí and the unfortunate State, who will have to apply this Bill. I have used enough hard language about it already but the more we plough through it, vista upon vista of absurdity and infirmity presents itself. Alps upon Alps of rubbish disclose themselves.

While I agree entirely with the Minister that he or I or any ordinary people sitting around a table might be able to perceive what the intended sense behind this subsection is, that is not the point, The point is what is a defendant going to make of it when he is being prosecuted? I am in favour of giving defendants in any kind of criminal case a fair chance to escape if there is any reasonable way of allowing them to do so consistent with the public good. I am in favour of prosecuting alleged wrongdoers but not of persecuting them.

At the same time, if we are to create an offence let us make a proper job of it and not just a slap-dash job which I am afraid we are doing in many parts of this Bill. This is not by any means the worst instance but it is an instance. Again I feel sure that the Minister in his heart knows that we are right about this and that if he and his Department had their chance over again we would get this subsection in some different form.

Amendment put and declared lost.
Amendment No. 16 ruled out of order.

I move amendment No. 17:

In page 3, line 49, to delete "in the absence of any adequate explanation by him" and to substitute therefor "unless the defendant shall satisfy the Court that he did not so consent".

This is not a drafting amendment: it is an amendment of substance and I hope Senators will attend carefully to the point that I will try to put to them. I shall read the subsection and if Senators will try to follow they will see the point when I get to the end. Subsection (3) states:

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 do not like this subsection. It ought not to be there. To shift the burden of proof, or of disproof, to the defendant is something which ought to be done only in very exceptional cases where the legitimate object of the State cannot otherwise be achieved. I do not see any need for it here and I think this subsection should disappear from the Bill altogether. I was voted down on that on Committee Stage and all I can do now is to try to improve the subsection as it stands, although I dislike it. Looking at it even from the Government's angle, the most inefficient part of it is the last few words "in the absence of any adequate explanation by him".

The defendant in a case under subsection (3) is being prosecuted as a member of a group. He is not being prosecuted for anything which he himself is proved to have done. In other words, the State is not making the case that he maybe did on such-and-such a day use words or make a statement himself amounting to an encouragement or an advocacy of crime. That is not what he is being prosecuted for. He is being prosecuted because the State is making the case that he is a member of a group on whose behalf this statement was made. He can only escape conviction if he provides what the subsection calls "an adequate explanation". The subsection does not say what it is exactly that he is to explain.

When the Minister was speaking here, I forget whether it was on the Second Stage or Committee Stage, I believe he said—if I am wrong I will give way to him if he wishes to correct me—that in regard to the bona fide right of claim in section 2 he thought that might cover somebody who was alleging a moral right to behave as he had behaved.

I corrected that subsequently.

Sorry. I accept that, of course. It may be that you will get the sort of defendant—and possibly the sort of justice who is receptive to this idea—who will say "My explanation is that I have not got a roof over my head", or "I know people who have not got a roof over their heads", or "I do not like the way society is ordered here and I believe I am within my rights in protesting or demonstrating in this active way". He may say "My explanation is that I consented only to half of this statement but not to the other half". He can say "I consented to the statement being drawn up but I did not consent to it being published in the form in which it was published", or "I consented perhaps to it being made and distributed in a small circle but I did not consent to it being broadcast in handbill form or put out in placards".

What it boils down to is that a defendant prosecuted under subsection (3) does not know what he has got to explain in order to escape the liability which this subsection creates. It would have been and still would be a simple matter to amend this, although I do not like the subsection at all, to make it clear that the explanation which he is supposed to give must relate to his consent. It would be legitimate and probably in accordance with the feelings of Senators, to the extent they support this subsection at all, if they were to say not in the absence of any adequate explanation by him but if he can show that he did not consent to the making of the statement. That is the only thing that ought to be relevant. I suspect the Minister will tell me that this subsection has its present form because of objections raised from the Opposition side in the other House. It is true that this section in the other House was the——

That is terribly embarrassing——

It is not a bit embarrassing. You are the ones who are going to be embarrassed in a minute.

I was about to say it is embarrassing to the Senator's friends in the other House.

It is embarrassing to the Senator. It is true that this section in its original condition contained provisions which were perhaps even more disagreeable. In its original state this section contained a provision about escaping liability provided somebody took steps to dissociate himself from the issuing of the statement. The Minister came some way to meeting this point; it is not fair to ask a man to rat on his own colleagues or comrades no matter what kind of organisation they belong to. We ought not expect people to turn tail on their friends in this way. That may have been one of the considerations which led the Minister to amend the section.

As it stands, it seems to me to be unsatisfactory for the reasons I have given that those last few words which are lifted, as far as I can guess, more or less straight from the law relating to the possession of housebreaking implements or stolen goods, are too vague in a context like this. Under the law on the possession of housebreaking implements if you are found with a jemmy, in order to escape conviction for the offence of possessing housebreaking implements you have got to give an adequate explanation. Possessing a housebreaking implement is something which, as I said on Committee Stage, screams aloud for explanation. There can only be a very narrow range of explanations for possessing an offensive weapon.

This is a different matter. We are not talking here about something physical and palpable. We are not speaking about a man found with a bomb in his pocket. We are speaking about something much more loose and impalpable, namely the association of somebody with a group which itself is perhaps highly amorphous and fluid, which puts out a statement in perhaps some very indefinite way. We can take the instance of something which is not necessarily a statement but merely a placard which one of the members of the group is carrying. What explanation is to be adequate in the eyes of the district justice in order to absolve a defendant from liability?

I am not making a claim in favour of my own wording but the simplest thing to do would be to amend this subsection on the lines of my amendment, namely to delete the words "in the absence of any adequate explanation by him" and to substitute the following words: "unless the defendant shall satisfy the court that he did not so consent". In other words, I dislike, except in the most special circumstances, making a defendant give explanations for his conduct. It should be up to the State to prove all the components of the offence.

However, if we are to place a burden on the defendant let him at least know what the burden is and let us at least define that burden in the way that I know all Senators who go any part of the way with the Minister about this Bill would wish, namely, let us give the defendant this escape route to say: "Yes, by a group with which I am associated but I did not consent to the making of that statement." If the Bill were to contain these plain words this subsection would still be objectionable to me and probably to everybody on this side of the House but at least it would not be unworkable, which is very nearly the way it stands.

I could understand this amendment if it were the other way around—that the words proposed by the Senator were the words in the Bill and he was asking to have the words in the Bill substitued. It seems to me that the words in the Bill are much wider and much more in favour of the person who is accused of the offence than the words suggested by Senator Kelly because if you confine it to the words suggested by Senator Kelly in this amendment all he can do is prove that he did not consent. He could not make any other defence. He could not for instance say: "I did consent but I did not at the time appreciate what the meaning of the statement was and if I had understood or appreciated it I would not have consented."

Under the Bill as it stands he can give an adequate explanation which would exonerate him and under the amendment proposed by Senator Kelly that kind of an explanation would not be sufficient. He merely has to prove whether he did consent and if he did consent no other explanation would be sufficient to exonerate him from blame. I cannot understand why this amendment was put down. It seems to be very much against the interests of a person who is accused of an offence of this kind and I would certainly much prefer the words that are in the Bill rather than the words proposed by the amendment.

I agree fully with Senator Ryan. He is perfectly correct. It is very hard to understand this amendment or to see what it would achieve because it is perfectly clear under the subsection as it stands that the question of adequate explanation refers to the problem of proof, or otherwise, of consent and the adequate explanation required of the defendant is whether he is able to raise some sort of reasonable doubt as to his consent. As Senator Ryan said if the words of the amendment were accepted it would not be enough for him to raise reasonable doubt: he would have to prove to one degree or another that he did not consent.

I cannot follow Senator Kelly's reasoning in putting this down to make the onus very much heavier on the defendant to get himself out of it. I do not accept his argument that the defendant does not know what he has to raise doubt about. It is perfectly evident through any straightforward reading of the subsection that what he has to raise the doubt about is the question of consent. Under Senator Kelly's amendment he would have to prove he did not consent, which is very much more onerous on him than simply raising a reasonable doubt in the mind of the court because the court must then give him the benefit of the doubt. It follows from the objection to the words "in the absence of any adequate explanation by the defendant" that reservation about those words implies a feeling of no confidence in the courts, that they are not in a position to assess objectively the circumstances of each particular case and that in some way they would act unfairly to a defendant.

The great advantage of these words is that they leave the thing loose and give the court the opportunity to give to a defendant the benefit of the doubt that might have been raised by a defendant. It does not put the onus on the defendant to prove that he did not consent. Senator Kelly's amendment would put that onus on the defendant. I find it hard to reconcile this amendment with the case that was made earlier, on Committee Stage and on Second Stage, that in some way, as it was alleged, this subsection transfers the onus of proof on the defendant to establish his own innocence. I made the point at the time that this was not so but the strange thing is that this amendment would have the effect of making it so and would have the effect of creating in the subsection the very thing which some Senators opposite alleged incorrectly was already in it.

I will say a few more words about the subsection as it stands and the great beauty, as the Minister says, of the words which he proposes the Seanad should pass. I do not know if the Minister noticed, when he began by complimenting Senator Ryan on his intervention, that the Minister's explanation of the effect of this subsection is diametrically opposed to the one which Senator Ryan gave a few moments previously. Senator Ryan said that the advantage of these words is that they made it possible for the defendant to say: "Yes, I did consent to the making of the statement but I did not appreciate what the statement was." Three minutes later the Minister tells us that the only thing to which this explanation is relevant is the question of giving consent. Where are we when the Minister and one of the legal members of his front bench do not agree on this point? Being in absolute conflict, I will give way if the Minister wants to reply. The Minister says that the question of explanation relates only to the consent.

Is Senator Kelly therefore right if, as he alleges, Senator Ryan and I differ in some academic way in our interpretation? Does that immediately mean that Senator Kelly is right and that his amendment is therefore acceptable?

That would be an illogicality which I would expect only from the Minister's Department, not from this side of the House.

Only from my Department?

The Minister and his Department. That is the kind of illogicality of which this Bill is full but I have not been guilty of that so far. The Minister knows perfectly well that it is possible for all three of us to be wrong but I would not have the arrogance to whip my side in behind me in defence of a proposition which I knew in my heart of hearts was baseless.

The Minister probably has a better end of the stick than I have. I say this for a reason which I shall reveal in a moment. I think there is something to be said for the Minister's point of view that the phrase "adequate explanation" in this subsection should refer, because of its context, only to the question of consent, in other words, to explain that the consent was lacking. According to Senator Ryan the effect of the thing is quite different. It is possible, according to him, for the escape which this subsection provides to amount to this: that the defendant says: "Yes, I did consent to the statement, but I did not appreciate its significance."

I do not make any special capital out of the fact that the Minister and one of his legal front bench supporters disagree on the meaning of a section which they are recommending to the House. I do not make any special case about that because it would not of itself invalidate the subsection or make it useless. It seems to be a strong argument in favour of what I am saying, namely that it is not possible for the person chiefly involved here, namely, the defendant, to see what line of escape this subsection offers him. If the Minister were back in practice, or if Senator Ryan were appearing for a defendant charged under this subsection, and let them put themselves subjectively in this situation, with the traditions of the legal profession behind them, they would be doing their best for their client, and they would be trying to see if there was any possible way in which the wording of the Act made it possible for their client to avoid conviction.

If I were in the position of either of these gentlemen appearing for a client I would try to make the most of this expression "inadequate explanation" and I would press on a district justice that it included contritional explanation, explanations based on my own ignorance or illiteracy, explanations of the kind that Senator Ryan put forward. I would press that very strongly. Now let me ask the Minister and Senator Ryan to put themselves in the position not so much of an advocate but of a justice who has to administer this wretched subsection. Where are the guidelines for him? What is he to do? The Minister said a few moments ago again—it is not the first time we have been accused of this—that we were showing no confidence in the courts. I have a lot of confidence in the courts. I am not confident about a law which we make and expect the courts to administer. I think if I were a justice or a circuit court judge hearing an appeal in a prosecution based on this subsection I would be at my wit's end to decide what exactly was meant by "inadequate explanation". I would not know what was expected of me.

I was in practice for a few years and I have seen judges scratching their heads when asked to interpret some phrase of a statute which was not absolutely plain. It is bad enough in a civil case but it is doubly difficult and doubly dangerous in a criminal case of this kind. Again, I cannot believe that the Minister and his Department do not see that this is a poorly drafted piece of legislation. I again express my disappointment at the political or administrative exigencies which weigh on the Minister to render it impossible for him, whether he agrees with me in his heart of hearts or not, and he does not agree in this instance, to do anything about it.

It is barely possible.

It is impossible, is it? The last person in whose position I want to ask the Minister and his supporters to put themselves is that of the defendant. I have been told that my amendment would make the defendant's situation not less difficult but more difficult. I am told that the effect of it would be to narrow the escape route which the subsection allows the defendant. The situation of a defendant is not represented as somebody might imagine from listening to the Minister and Senator Eoin Ryan. A defendant in a criminal case, once he gets into the box to give evidence on his own behalf, is not in a situation where he can try on one defence after another. He cannot get into the box and say "I really did not consent to this statement" and when that is shot down in cross-examination say "I did consent to it, it is true, but I did not appreciate what it meant". He cannot do that and anyone in legal practice knows that he cannot do it. He can try it, but he will not get away with it.

A defendant is entitled to know, particularly when a burden of this proof is placed on him, what exactly it is that he has got to disprove. It is not good enough to say "This is a flexible escape route". It is not flexible because if he makes a mistake, if he chooses the wrong escape route, if he gives evidence of a kind which cannot be substantiated, and if the justice is disposed against him as he naturally will be then, he cannot suddenly say "I am sorry, I will start all over again. I wish to put forward another defence instead". He just cannot do it. The Minister knows that perfectly well and Senator Ryan knows it perfectly well——

He can try it.

He can try it but he will not get away with it. The Senator knows perfectly well that no judge or jury is anything but heavily prejudiced against the defendant who shifts his ground. That is a thing which even laymen can understand. It is important where a burden of disproof is being laid on the defendant that it will be clear to the defendant what exactly it is that he is being asked to disprove so that he can consider his position in advance. I do not want to inflate the importance of either my amendment or this wretched little subsection, but I have to ask myself whether the thing has not got even greater dimensions than the ones which I have outlined, whether the larger aspects of trial and of personal rights here are not—I will not say being infringed in a major way—but are not being somewhat dented by a criminal provision of this kind which shifts a burden of proof to a defendant. I know the Minister does not like me to say that but it is clear that in one respect the defendant has to carry a burden of disproof. If it is not clear to him, and it cannot be clear to him, exactly what that——

In this amendment the Senator is putting a very heavy burden on him.

That is so. I have explained, and I hope that the Minister will acknowledge this. I have said time and again that I do not like this subsection at all and I have moved an amendment to delete it from the Bill altogether. I have failed in that but since it is there let us try to make it workable. If it were the case that a defendant can have as many goes as he likes in establishing a whole series of alternative defences and that he was starting with as fresh a sheet on his fifth defence as on his first defence, then certainly the defendant has a better chance with the subsection standing as it is. That is quite clear. That is not the case and everybody knows that is not the case. A defendant in a criminal case usually has only one basic line of defence. He may have an alibi, he was not there, or he did not do it, or he was there but he did not do it, or he was there and somebody else did it and he was only marginally associated with him. Only one line of defence in the ordinary case is possible for a defendant. It is not like a libel action in which there are alternative pleas; in a criminal case that is not possible. If it were possible I quite agree that this subsection would be more lenient to the defendant, but it is not possible.

A defendant has only one chance basically, he can certainly try to change his ground in the middle of a case, but as Senator Ryan very well knows he will not get away with it unless the justice is not doing his duty. That is the reason why I am trying to make concrete the nature of the burden which this subsection lays on the defendant.

I am glad the law is not administered as the Senator thinks it is.

I am not as ignorant of the administration of the law as Senator Ryan might like the House to suppose. My experience of it is that a defendant who switches his ground, even in a civil case, has virtually given himself up to an adverse verdict. Senator Ryan knows that perfectly well. If we are going to have a burden of disproof here resting on a defendant, let the defendant at least know what it is so that he can prepare himself beforehand and decide whether to put this case up or not. I am afraid that in this respect, as in so many other respects, this Bill is highly unsatisfactory.

Amendment put and declared lost.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 3, between lines 49 and 50, to insert the following:

"(4) A bona fide report in any newspaper or periodical, or transmitted by any means under the control of any authority constituted under the Broadcasting Authority Acts, which describes any acts or words alleged to constitute an offence under sections 2, 3 or 4 of this Act shall not constitute an offence under this section.”

The reason for tabling this amendment, in the names of Senator Kelly and myself, was simply that, while the Minister gave an undertaking last week to change, at some time in the future, the words "encourages or advocates" to the word "incite"—and this was welcomed by Senators and representatives of the Press—it was felt by some people, including myself, that while this substitution would be an improvement it did not clarify the position 100 per cent for either the representatives of the Press or those members of the public who are concerned about the position of the Press in relation to this Bill. I imagine the Minister will suggest that this amendment is quite unnecessary and superfluous because of the undertaking which he gave last week.

It is no harm to remind the House that we are still faced with the wording of the Bill as it appears before us. First of all, we are asked to debate these amendments in the quite unnatural atmosphere of knowing beforehand that there is no hope of any of them succeeding. We are also asked to debate section 4 with all its implications and ramifications and all its possible dangers for people, who are in fact innocent, being found guilty of an offence under this section and for commentators and members of the Press being found guilty for reporting alleged offences under this Bill. We are being asked to discuss those matters under the unnatural parliamentary situation of having a Minister who implied last week: "I am prepared to change some of the words in this section the next time I bring a Bill before the Oireachtas. In the meantime will you please agree to the wording of the section which I know you do not agree with and which, in fact, by implication I am now saying is less than perfect. If you pass this less-than-perfect section of this less-than-perfect Bill the next time I introduce a Bill I will introduce a section to amend one of the more obnoxious parts of this Bill." That obviously is the line the Minister will follow when replying but we are still faced with section 4 as it stands. As we know, that section still uses the words "encourages or advocates". Accepting that in some time in the future those words will be substituted by the word "incites", there is still, even by using the word "incites" in section 4 (1), many shades of grey in this whole area of newspaper, radio and television comment in connection with offences under earlier sections of the Bill.

My suggestion, as a layman, is that a subsection should be included in section 4 which would, quite clearly and specifically, state that any bona fide report in a newspaper or on radio or television, which reported quite factually on something which might turn out to be an offence under the Bill would not of itself constitute an offence. The members of the Press and news media generally would then know here they stood in relation to this Bill. They would know that if they reported some action on the part of people, and if those people were subsequently prosecuted and found guilty under this Bill, the Press representative who had written and published that report would not find himself liable to be prosecuted under section 4.

There is a great area of doubt and many shades of grey in this regard. The simplest and clearest way of eliminating that doubt is by writing a subsection into the section which shows clearly to everybody—the Press, general public and Members of the Oireachtas alike—that the genuine Press or media commentator is not being affected under section 4. The wording of the amendment, or wording along similar lines, would allay the fears of many people who have expressed doubt and anxiety about this situation.

Most people seem to know the Minister's intention in this regard because we have heard it expressed several times here and read about it on several occasions. The use of the words bona fide ought to satisfy both the Minister and the Press because the Minister surely cannot object to a genuine and fair report of events or occurrences on the part of the Press and the Press, I am sure, would not feel that they had any grievance if they were to be prosecuted for reports which were other than fair or reasonable. I suggest that the wording of a new subsection such as this would bring the position of the Press back towards the position which they hold at the moment in relation to the existing laws on libel, in other words, that they were not guilty of an offence and could not be guilty of an offence where they had done no more than edit, write, produce or print what was fair comment on matters of public interest.

We have given some thought to the wording of this amendment and it is important to realise that the amendment as it is worded would not protect the author, editor or publisher of any malicious comment which would incite others to commit an offence under this Bill. Obviously, comment of that type would not be a bona fide report of acts or words alleged to constitute an offence. Neither would this amendment protect the author, editor, publisher or printer or, indeed, the vendor of broadsheets or pamphlets which might be produced and which would have, as their only aim and content, the urging on the general public to commit or support offences, or alleged offences, under this Bill.

Last week Senator Horgan reminded the House of the long and honourable history of producing pamphlets in this country which stretches back to the days of Swift. Nevertheless, it is fair for us to appreciate the Minister's position in this regard. If he wants to get at those subversive groups, which he has spoken about so often, and to stop the offences which sections 2 and 3 —however badly worded those sections are—are intended to stop, he must also endeavour to stop the free distribution of pamphlets or broadsheets being produced by these subversive groups which urge the general public to commit what will be offences under sections 2 and 3.

I would suggest that the amendment, as it is worded, would not in any way mean that the authors or producers of pamphlets of that type would be protected by this amendment and it was not designed that they should be protected. The amendment is designed to protect genuine journalists who genuinely report what is to them a matter of public interest which is newsworthy and which they consider should be brought fairly to the attention of the general public.

We should realise that in any free and open democracy it is one of the first obligations of the Press and one of their prime duties to be in a position to report freely on events which they judge to be matters of public interest and which are newsworthy matters. Obviously we are getting somewhat away from the position of being a free and open society if there are very large scale activities on the part of a group which would appear to be offences under sections 2 and 3 and if the members of the Press consider they are inhibited in their right to report the fact that those large scale demonstrations are taking place. If you get to that stage you are surely coming back to the type of position which existed during the last world war where there was a form of censorship imposed upon genuine and responsible people involved in the media for matters of national security.

Nobody is suggesting here that the problem which the Minister says he is trying to cure at this stage involves anything like a problem of national security. That being so, then I would imagine that all of us in the House would accept the right of the Press to report on these activities and to make freely available to the people the facts in relation to any such event which takes place.

This is, as I said, one of the first obligations of a free Press and one of the first essentials of a free Press. I would also suggest to the House that one of the first essentials of a free and open society or a democracy is that the Press should be a free Press. We discussed last week at some length, and with some very interesting observations by various Members of the House, what role the Press should play in our society. We had explained to us at some length by one of the Members of the House that the Press were not infallible.

May I interrupt the Senator for a moment. The question of the Press was discussed on amendments Nos. 4 and 18. Before the discussion began the Chair suggested that since it was very closely related, amendment No. 19 should be taken at the same time. However, the Senator made the point that this raised a separate issue. The Chair feels that in view of the fact that a long discussion on the general role of the Press has already taken place on amendment No. 4, the discussion on this amendment should be limited to the strict wording of the amendment, in particular "a bona fide report”. The general question of the Press and its role in the country should not be raised again.

I, of course, accept the Chair's ruling. I should like to remind the Chair that I did not speak on amendments Nos. 4 or 18——

That was a matter for the Senator.

——in order not to delay the House in any way and to reserve what few words I have to say in relation to this amendment alone. The point I wanted to make was that any report, bona fide or otherwise, produced in a newspaper or periodical, is produced by human beings with ordinary human weaknesses. People in the Press, especially, would be the first to accept that from time to time they make mistakes. My experience has been that whenever it has been pointed out to the Press that a mistake or a possible mistake has appeared in their reports they have been more than anxious to correct it immediately and have been more than anxious to accept on a general basis their responsibility in relation to fair and accurate reporting.

I do not think that genuine journalists want to see or to encourage a situation which is in any way disturbing public order but they do want to be able to report on events which are taking place on such a scale as to be newsworthy items. The effect of this amendment would be to place beyond all doubt their right to report in a bona fide way on those activities whether those activities might constitute an offence under this or any other Act.

Before I started speaking—indeed before we came in here today—we all knew well that the Minister would not accept this amendment or any other amendment. It might have been a more useful exercise if, instead of showing why the amendment was wrong or unnecessary, the Minister had said at the start that he cannot accept the amendment because the other House is not in session. But if he accepts the spirit of the amendment or the fact that it is fire-proofing his undertaking of last week, if he in any way sees the necessity for it and that it will allay the fears of many people, and if he would even indicate that in his proposed legislation in which he intends changing the words "encourage or advocates" to the word "incite", he will also write in a subsection which would clearly exclude the genuine Press in their genuine reporting, on the lines of the amendment being put forward today, I would be reasonably happy with this.

It is right that we ought, at this stage, when this Bill has almost become law, get quite clearly on the record what the position of genuine journalists and people in the media is in relation to section 4 as it stands and in relation to section 4 as it will stand after the word "incite" is substituted for the present wording.

I only want to add a few words to what Senator Boland has said. This amendment was, in my eyes, fundamentally different from the one moved yesterday by Senator Boland and Senator Robinson. In this party we do not believe, any more than Fianna Fáil believe, that any group should be exempt from the ordinary law of the land and we would not press for any special criminal immunity to be given to somebody to write or say what he likes simply because he is associated with or operates through what is called an organ of public opinion.

That is not what is being sought in this amendment. What is being sought here is to make it clear that a mere report of activity, no matter how presented—and this is really the nub of the thing—provided it is a bona fide report of activity alleged to constitute an offence under sections 2, 3 or 4, cannot itself be an offence. That is a different thing from giving a licence to a newspaper, or to one of the broadcasting media, to incite people to crime. It should remain within the freedom of the news media to report. That includes choosing their own means and method of presentation in reporting acts which constitute offences under these sections, just as they are entitled to choose their own means of presenting any other kind of news.

I know that the Government side contains people who are very sensitive about the way the newspapers behave. Scarcely a day passes that we do not get a dissertation from Senator Ó Maoláin about it. His name has become a household word in Ireland, thanks to the activities of the mass media. That is natural to a Government. If we were in Government I suppose that we should have an equal proportion of people objecting to the way in which news was presented and would urge, as the Tánaiste constantly does, that the newspapers should show the sunny side up and should not always be looking at the dark side of life. In other words, I do not resent the exasperation which Senator Ó Maoláin and others show at the way news is presented. However, the fact is that the news media have to do their job in the way which seems best to them. We have to face up to the possibility that a newspaper might report an act of forcible entry in a way with which neither Senator Ó Maoláin nor I would agree, but in a way which might equally annoy both of us. It might report it in a way which was not mala fide. It might produce emotive photographs and headlines and a presentation of the story not malignant, not intended to be untruthful or malicious, but one in which it might be clear where the sympathies of the editor lay. There might be a television or radio programme about which analogous things could be said.

I repeat that while I do not believe that the media should have any special privileges, I think that the freedom of the media, as we understand it now, is something valuable to the whole community and that this much latitude in their own sphere should be allowed to them. I am not pressing for any exemption or immunity. There is nothing with which to compare this. In other words, it is not a case of saying: the media can do one thing which an individual cannot do, because the individual, by very definition so far as our amendment is concerned, is not in the situation of giving a report of anything.

I am not trying to put the Press, television and radio in a privileged position—and I reject the idea that they should be privileged—I am only trying to protect the freedom which they already have in several respects, for example, in producing bona fide reports of judicial proceedings or of the proceedings of either of the Houses of the Oireachtas. I am anxious that they retain that freedom in regard to the reporting of crime or alleged crime. That freedom should not be abridged merely because an editor takes his own line about the way in which he is going to present news, provided that it is done bona fide. I do not think that he has any licence to tell lies about the news in such a way as to provoke, in his own terms, the commission of an offence. He should be entitled, as he is at the moment, to present news even about crime, or alleged crime, under whatever mode of presentation that seems to him to be best.

I should like to support the amendment. It is the most moderate of the amendments, to try to ensure that freedom of expression and the freedom of the Press, radio and television are safeguarded. In supporting it I feel that it is very close in argument to No. 18 which, unfortunately, in my absence was linked with amendment No. 4; they were taken together and I did not get an opportunity to reply on it.

I should like to point out that in amendment No. 18 I was not looking for a special exemption from the possibility of committing an offence under section 4 to all members of the Press, radio or television; I was trying to define the word "group". In itself it would not be construed to include the Press, radio or television, so that if an individual advocated or encouraged a criminal offence under section 4, but did so either on radio or in a newspaper, the radio and newspaper could not be a group for the purposes of having anybody else associated with that group guilty of it.

The same type of general reasoning is behind this attempt to maintain the present situation that there can be bona fide comment on a situation. A legitimate and obvious example of that would be to look back at the newspaper coverage of the Hume Street affair, and to ask whether after this Bill became law, the same type of articles, comment, and the same type of covering would now be an offence under section 4.

If this amendment was accepted I should be happy to believe that it would not be an offence. I should be reassured in relation to this aspect of the Bill, although the debate in the Seanad has shown that this aspect is by no means the worst part of it. The worst part is the definition of "ownership" in the definition clause and the consequent exemption allowed to owners. Nevertheless, there is this possible danger to freedom of expression. This is a very moderate, a very reasonable and certainly to me a very appealing way of meeting this legitimate complaint and this legitimate fear on the part of many people that section 4. as it stands with the present wording and without as yet the amendment that the Minister has promised, could endanger freedom of expression.

I propose to be brief on this amendment. Basically it is much the same as amendments Nos. 4 and 18, on which there was a comparatively lengthy debate. This particular amendment seeks to introduce a new concept or a new principle into the existing law of incitement or, if you wish, the existing law of encouragement or advocacy of crime. At the moment there is no such principle in our law as would be constituted by this amendment. If an amendment of this kind were to be made in the law, it should, if it were logical, be a general amendment of the law of incitement or of the law of encouragement of crime. It should not be restricted to incitement or encouragement or advocacy to commit the specific offences in this Bill.

I find it difficult to distinguish on the one hand between ordinary indictable crimes other than those in this Bill and, on the other hand, the two indictable crimes in sections 2 and 3 in this Bill. If you want to put forward the point of view that newspapers should be free to report things in a way that would avoid the possibility that is there at the moment that they might infringe the law of incitement, while it is a point of view that I do not accept, at least it is a valid one. Some people feel that there are some grounds for giving that privilege. If you want to put that point of view forward, you cannot logically or fairly do it unless you do it in respect of every crime. Why pick out these particular crimes?

Let us reflect for a minute on what the law is. The law is that it is not lawful, that it is an offence, to incite the commission of indictable crime. Unfortunately, as we all so tragically know, indictable crime is not something that is fading away; it is increasing from year to year. The 1970 figures to be published soon will regrettably show a further increase. I am sure that this is reflected in every country in the world and that it will continue to increase. Apart from the fact that these indictable crimes increase in number, and in their seriousness, as unfortunately and so tragically they do, the amount of newspaper coverage given to them also increases. Moreover, as the number of what are described as popular newspapers is increasing at the expense of our genuine or serious newspapers, it follows that the amount of coverage given to these many and serious indictable crimes will grow still further every year. I do not see in this country or Britain, or indeed in any democratic country that readily comes to mind, any increase in prosecutions of newspapers for incitement in spite of the increasingly lurid and detailed descriptions given to these crimes. As a matter of fact, I do not see any prosecutions for incitement against newspapers.

Or any kind of prosecutions for incitement against anybody.

Therefore, why should the fear be so great in relation to reports of incidents that might or might not constitute crimes under sections 2 or 3 of this Bill? As a matter of logical principle I could not recommend to Seanad Éireann that it should accept the right of newspapers to have this privilege in relation to reporting these offences and not to have the same privilege in relation to the many hundreds if not thousands of other much more serious indictable crimes that can be and unfortunately are committed almost daily in this jurisdiction and in others. I do not wish to become involved in a general discussion on the Press and on its rights and duties and I would probably be ruled out of order if I were to do so.

For those who are interested, there are two articles which appeared in Irish newspapers within the past year that might well be studied with profit. These were written by two distinguished practising journalists and cannot be said to have been written by persons who had their knife in journalism or journalists. One is an article in the Irish Independent of the 16th May, by Mr. Arthur Noonan who then worked for the Irish Independent. He left very shortly afterwards. It might not be unfair to say that some of the reasons for this were some of the reasons he set out in that particular article which I found very revealing and in which he expressed the reservations which he had, indeed, I might say the disgust which he had at the actions of some journalists in this country.

Is the Minister not talking about the Press now?

The other article which I will recommend to those who might be interested in reading it also appeared in the Irish Independent of the 10th June, 1971 headed “The Hidden Persuaders” and written by Mr. Anthony Lejeune. It approaches the matter in a very different manner, but it makes basically much the same point as Mr. Noonan made.

One of the things which has been overlooked in this debate on this amendment and on the two previous similar amendments is that it is not remembered by Senators and by others that the facilities of the Press and of radio and television are not confined just to journalists. The great danger of incitement in television and to a lesser extent in radio and the Press may well not come from journalists, who are usually trained and have a fair sense of responsibility and know what the limitations of the law on their activities are, but from people who are members, for example, of illegal organisations or subversive organisations and who are given the facilities of a television station. They are not journalists and are not subject to the sort of limitations——

Senator Ó Maoláin's view is that this has already happened.

——under which journalists normally operate. There is a grave danger there which the proposers of this amendment and the other similar amendments seem to overlook. They take it for granted that it is only journalists who would gain the privilege of this amendment or similar amendments. That is not so. There are a great many other people and, in particular, people with a definite axe to grind who would gain the benefit or privilege of these amendments, or of this particular amendment which is foreign to the whole basic concept of our law on incitement.

Senators should bear these reservations and these doubts in mind and realise the potential consequences of an amendment of this kind giving exemption or privilege not just to journalists, because one could obviously have much less objection to that, even though it would be a breach of the basic principle in our common law, but possibly giving it to people of a type who most certainly should not get that exemption or privilege.

I think I shall not talk about the Press, like the Minister, for ten minutes or so. This is a very well-worded amendment and if we have got to wear section 4, this amendment to it is meritorious and I have pleasure in supporting Senator Boland for putting it down. To take the Minister's last illustration of the dangers which he sees being opened up by an acceptance of the amendment—the vision of men with slouch caps pulled down over their heads addressing our people and inciting them to commit the offences which are set forth in sections 2 and 3—even forgetting that it is open to the Minister to address a communication to Telefís Éireann under the Broadcasting Authority Acts to prevent this happening and a recurrence of it if it did ever happen, the amendment proposed would not permit this to happen and any such language used by any such person would not be saved from being an offence of incitement by this subsection which is proposed by the amendment, because this proposed amendment only frees a bona fide report. It has got to be bona fide, it has got to be: “a report in any newspaper or periodical or transmitted by any means under the control of any authority constituted under the Broadcasting Authority Acts which describes any acts or words”—that would be “statement”, because that amendment was not accepted—“alleged to constitute an offence shall not constitute an offence under this Act.” This contemplates a situation in which an offence under section 2 or section 3 has been committed, or an incitement has been made already under section 4 and saves the periodicals, the Press and the Broadcasting Authority if it reports such offences or reports such an incitement.

On the Minister's point that this is to introduce a new concept, it does not lie easily in the Minister's mouth to complain about new concepts. Section 4 introduces to criminal law a manifestly new concept and an amendment is proposed to restrict the damaging effect of that new concept. This proposed amendment in relation to section 4 will only save people who report statements which will give ground for prosecutions against members of groups on behalf of whom the person who makes the statement speaks. It is clear that without this a report of what may constitute an incitement under section 1 may itself be held to be an incitement under section 4, subsections (2) and (3) so as, supporting Senator Robinson in relation to her amendment No. 18, to render liable the entire membership of the group which constitutes the newspaper in question or the authority under whose auspices the communication or report has been made.

The Minister is not being fair to himself in saying that there is a new doctrine in regard to incitement because if he does make an amendment of subsection (1), as he has promised in further legislation, he may have to adopt Senator Nash's suggestion that for the nature of the offence that is contemplated here he will have to introduce a new concept of incitement anyhow. Incitement, as it stands, is an incitement by one person of another person or persons but not an incitement of persons at large.

If I am permitted by the House I would give way to the Minister to elaborate his "No, Sir". I have not in my hands, as I had in a larger valise another day, quotations from various authorities as to the nature of incitement but I thought it was not contestable, and Senator Nash presented it to the House as being his view that incitement does not, if I am not misrepresenting Senator Nash, exist if it is an incitement of a crowd, for example. It has got to be an incitement by a person of other persons who are identifiable as persons and not as members of a group or a crowd.

I do not view this amendment as anything other than an amendment necessary, not something that gives a privilege. I did not speak on amendment No. 4, because, whatever the spirit in which it was proposed the language used seemed to confer a privilege that I would not regard as proper to newspapers or the radio. This is an amendment which enables the Press to perform its duty. A free Press is vitally necessary for this community. There may be great doubt as to the degree of freedom practised by the Press in all circumstances. I do not devote my energy ever to sucking up to the Press but I accept what Senator Cranitch said in debating this measure at another stage, that they have no greater dose of original sin than lawyers, to take no other class or than Senators. They do their job and have their occupational strengths and weaknesses. They tend to be interested in what is immediate. They react to news in a manner which is professional. It is clear that their freedom, which will be assisted by this amendment, is necessary where you have a Government 14½ years in power. The Minister's quotation of the title of the second article, if he did not choose to expand it, would expose him to an unfair criticism that the "hidden persuaders" were no longer going to be allowed to be hidden.

Yes. It is sinister to see him cutting articles out and sticking them on pieces of paper.

And putting them on to the file relevant to the Prohibition of Forcible Entry and Occupation Bill where section 4 is going to deal with "hidden persuaders".

They were on no file.

They are on the file in front of the Minister. I thought it interesting that he thought them relevant to this. He must take the view that this amendment is not necessary because there are in existence in the newspapers "hidden persuaders", which means that the degree of freedom enjoyed and practised by the Press is dubious. Is that the Minister's position?

That is not the Minister's position and any effort on the part of Senator Alexis FitzGerald to manufacture a position for the Minister which he does not hold will be resisted.

I am delighted to find that the Minister has repudiated the implications of his own quotation. I did say that I thought it exposed the Minister to unfair criticism.

I am not so naïve as to fall into that one.

Senator Alexis FitzGerald might continue now without interruption on amendment No. 19.

There is so much legal language spoken here that plain language is not understood any more on the other side.


These interventions profoundly move me——

But the Senator should not invite them.

——and enable me to say that I have completed my support of the amendment before the House.

He flurries us all when he starts——

Supposing I started on Senator Kelly for a change.

Supposing the Senator started on amendment No. 19.

I am quite prepared to take him to pieces if he so wishes. Being a reasonable man, I shall refrain, and shall do the job that I got up to do. "Media" is a word being hawked around now which covers a multitude of sins and for the benefit of many uninitiated people in the country "media" includes newspapers, television, radio and any other method of communication. It is a very useful series of communicating links to have with the people but a dangerous one, too. Listening to all the anxiety on the part of the Fine Gael speakers and reading the editorials in some of our more notable anti-Government newspapers, I cannot get it out of my head that there are ghosts stalking them and that they have something on their conscience and that a lot of their fear of section 4 of this Bill is based on the fear that something might have happened long ago and that they are getting deferred payment now.

It was not I who smashed the machinery in the Freeman's Journal.

Does the Senator really want me to start? I do not want to go back too far into history because it might shock those young lions over there on the other side but 1933 is not too far back.

An Leas-Chathaoirleach

Provided it is relevant to the amendment.

It is very relevant. The anti-Government newspapers for five years opposed tooth and nail the policy adopted by the Irish people at that time in regard to economic sanctions against Britain. The newspapers got away with it. There was complete freedom for them to do so under a Fianna Fáil Government and day after day, week after week, they preached treason which in any other country would have earned them at least a reprimand but they got away with it and nobody was prosecuted, nobody was penalised, no journalist——

We never said you prosecuted us.

That persisted until the end. Why they get the idea now that there is something sinister in section 4 of this Bill, that it is directed at them, I do not know, except that they may be afraid of a ghost who is going to give them deferred payment for treasonable activities in the past. I can assure them it is not so. But the words bona fide in this amendment, which amendment naturally I could not accept either, reminded me—when Senator Boland was speaking and emphasising genuine reports—of what way the type of genuine reports which, for instance, are used and were used on some of our radio and television broadcasts and which were also used by the Press, could be treated. In what way are we to look on this genuine reporting of manufactured incidents for the sake of getting publicity and providing sensational news stories? I will give the House examples. The offices of the Fianna Fáil political party were occupied one day by a bunch of mentally retarded deviants——

They are occupied by them every day.

——claiming to be Sinn Féin, protesting against the imprisonment of men in England, by which means they were to secure their release. The strange thing about that is that it was organised apparently with the connivance and with the knowledge of both the Press and Radio Telefís Éireann. Looking out the window on that occasion I was surprised to see, simultaneous with the entrance of the deviants into the office, television cameras mounted on the steps across the street, reporters with their notebooks ready and other denizens of their world with little cameras slung over their shoulders waiting for the great invasion. That was a piece of news that occurred spontaneously. It was not that somebody telephoned the Press and radio and said something has happened here. This was a well thought out arrangement by television, radio and the Press to ensure that they got first class coverage of this event. In the event, their plans were spoiled. However, that is another story.

Secondly, Cór Fhéile na Scol took place here in the city of Dublin. The Minister presented prizes and addressed participants. There were some interruptions. An attempt was made to seize the microphone. There was a television camera there and reporters. Pictures were taken. This was a very small troublesome minority who organised this and they were subdued. When the affair was over and the Minister was leaving the hall, it was taken for granted apparently by the organisers of the interruptions that there would be a crowd outside who would booh, heckle, jeer and possibly physically assault the Minister in question. Again, television cameras were organised in such a position as to get the most value out of that incident. But it so happened that instead of being boohed, heckled and jeered, the Minister was actually cheered, patted on the back, congratulated and waved farewell with the best of goodwill——

Every night of the week there are Ministers on television jumping into swimming pools and shaking hands with people.

——but the report which appeared did not show that part of it. Neither did the Press reports give any hint or indication that such a thing happened.

The third thing I want to draw attention to in regard to the manufacture of news in view of the emphasis laid on genuine news reports here in this amendment, is the extraordinary occurrence which took place outside the United States Embassy when the President of the United States was put in the dock at a mock trial and when the flag of the United States was publicly burned by a group of crazy deviants again, a well organised job with which television and radio were acquainted in advance, the newspapers were acquainted in advance, with the result that full coverage was given to the whole performance and these people got their mileage out of it.

I want to know if these are to be taken as genuine reports and if these are to be regarded as being honest and sincere journalism, television and radio. Nobody will defend the right of the Press to the free expression of its opinion be they good, bad or indifferent better than I would. Nobody will advocate the right of the Press to criticise, subject to public order and morality, more than I would, but certainly, if there is to be criticism and if there is to be freedom of expression in accordance with the law in the Constitution, then there must also be free collection of genuine news, not free collection and dissemination of faked and manufactured news.

Was it a spontaneous accident that the Press were there at Dublin Airport when Mr. Lynch arrived back from New York last year?

I should like to tell Senator Kelly about his performance at Béal na Bláth and if he does not keep quite I will tell him. He made a most unsuitable and a disgraceful speech at Béal na Bláth, an unseemly address. The Senator was not a fit or proper person to invite to deliver an address at that historic spot.

The Senator is making a holy show of himself.

I have put up with enough from Senator Kelly and I am entitled to defend myself seeing that I cannot do it physically because of the distance between us.

I shall be very brief in my comments. I believe what Senator Ó Maoláin has said because in a certain sense it indicated why this amendment must be accepted. I should not like it thought that I was not supporting it. Before coming on to what I thought was the main point, I should like to talk about his attitude to the question of news management. As Senator Kelly said in an interjection, every single organisation and individual who wants to get a certain point of view across on anything to the people at large adopts techniques of news management which vary very widely in accordance with the skill of the person exercising them and also, let it be said, in accordance with the amount of financial resources available to the gentleman concerned. If there is any weighting in the effectiveness of news management, it is not in favour of the minority groups in our society but in favour of the groups with the greatest economic power, the groups with more money. That must be stated and can be stated.

It was the implication of what the Senator said about news management and about the type of reporting which has appeared in the papers after various incidents that really gave me pause because he was commenting on this phrase in the amendment relating to bona fide reports. The Senator gave several examples of reports which he said were not bona fide reports. I do not propose to defend any or all of the examples he gave but to underline the significance of what he said. If one follows logically from what the Senator said, the position of a report in a newspaper, the length of a report in a newspaper, the prominence given to a report in a newspaper should be materially held against that newspaper in deciding whether it is a bona fide report or not.

At present, if I am correct in thinking so, bank robberies happen from time to time. A newspaper is not liable, to the best of my knowledge, under the statutes relating to incitement because it reports the fact that bank robberies take place. Newspapers are not generally assumed to condone bank robberies by simply reporting the fact that they have taken place. Yet, under this section which this amendment seeks to amend, it seems to me to be at least possible that reporting of criminal acts could be construed, and would be construed, if the Leader of the House had his way, as incitement, or, at the very least, as encouragement or advocacy.

The Senator misses the point. I was talking about manufactured news.

The Senator was talking about a whole lot of things that have nothing to do with this amendment.

I am talking about reports of any kind that appear in any newspaper. I am talking about the fact that all newspapers report all events in different ways and that if we are going to see the creation and the endorsement of a mentality which seeks to read into the way in which any newspaper reports any item of news a criminal intent on the part of the editor or writer of that newspaper, we are in a very serious difficulty indeed.

Will the Senator comment on the manufactured news of which I spoke?

I have told the Senator that I am not disposed to defend any particular incident, any particular report in any particular newspaper, whether it is fomented by a minority group, by a majority group or by a 45 per cent minority group——

Or the meeting of the Napper Tandy cumann on Christmas Eve.

I am just trying to express my alarm at the idea that such factors as prominence, length and the way in which an item is treated in a newspaper should be regarded by the Leader of the House in the way in which he regards them.

We have fears about this Bill and about this section of the Bill and this is why I am supporting the amendment. It is not based on what we believe the mens rea of the Government to be; it is immaterial to me whether or not this section is directed against the Press. The real point is that it could be. I, for one, fail to realise why the Government did not seek to rely on the offences of incitement and conspiracy in this regard. The fact that they did not choose to rely on the offences of incitement and conspiracy and chose instead to insert this very badly worded section is deeply alarming. For those reasons I support the amendment.

It seems to me that this amendment is an extremely reasonable one. I understand the attitude of Senator Ó Maoláin. I may be tempted before I sit down—although I hope not—to follow him in commenting on what he calls "manufactured news". I think the principal point with regard to Senator Ó Maoláin's entire speech in so far—and I do not intend to cast any aspersions on the Chair—as it was relevant to this amendment is the fact that the amendment starts off with the words "a bona fide report”. If the incidents which Senator Ó Maoláin described were manufactured and if the reports in that sense were not bona fide reports, obviously they would not be covered by this amendment. The amendment is a very reasonable precaution to take so far as genuine bona fide reporting in newspapers, television or radio, is concerned.

I do not suppose any Senator is going to make the case that if a newspaper reports in a bona fide manner some incident which has taken place and which constitutes an offence under this Bill when it is enacted, or reports the proceedings on which a prosecution may be based, for example, under section 4 of the Bill in connection with a statement made—what is regarded as in contravention of subsection (1) of section 4—such bona fide reporting should come within the net which is being spread by section 4 of the Bill. It is to guard against that danger that the amendment is being proposed. I regard it as a very serious, as well as a very sensible, amendment and I do not think it does any great service to the discussion in this House on this amendment to branch off into matters of past history or matters in which doubts are cast on whether the news being reported is manufactured news or whether it is news proper for reporting. So far as this amendment is concerned, if it is the intention of the Seanad that bona fide reports should risk incurring liability under this Bill it seems that the obvious thing for the Seanad to do is to accept this amendment. It does not weaken the Bill in any way provided that the Bill is not intended to attack bona fide reporting. It is only if this Bill is intended to be an attack on bona fide reporting in the news media that this amendment could be regarded as, in any way, weakening the Bill. If Senators are prepared to state that it is not the intention of the Bill to attack the right of news media to indulge in their job of bona fide reporting the right thing to do is to adopt the safeguard provided in this amendment.

If ever there was justification for an amendment of this type to be included in this Bill it was the speech made by the Minister, which was so ably seconded by the Leader of the House. By their own words you shall know them. If ever it was brought home more forcibly to the Seanad, in connection with any point or any amendment, that there was need or justification for the amendment it was contained not alone in the words but in the spirit behind the offering of the Minister and the Leader of the House.

I was quite surprised at the Minister's remarks—I cannot say I was surprised at the remarks of the others —in that virtually his only contribution in relation to this amendment extended to the fact that indictable crimes generally had risen and that he would be publishing the figures for them shortly. He went from that sublime to the ridiculous of enlightening the House as to his views on why Mr. Arthur Noonan had resigned from the Irish Independent and was now working for Telefís Éireann. How that, in any way, related to the amendment I do not know. As we are on that point and as the Minister's only journalistic backing is, apparently, two articles from the Irish Independent, let us again remind the House of the article in the Irish Independent on 29th July, 1971, where they stated very clearly and very succinctly why they were opposed to this Bill and particularly to this aspect of the Bill.

Senator Ó Maoláin explained the difference that this amendment would make to the operation of the section. He explained about the occupation of the Fianna Fáil Party headquarters and referred to the fact that this occupation had taken place—and I quote—"with the connivance of the Press and Telefís Éireann".

No, I did not say that.

He said they were organised by them.

Certainly the word "connivance" was used in relation to the Press and Telefís Éireann in connection with the matter. If that preposterous suggestion were true and if this event had taken place after the passing of this Bill, as it stands, clearly those members of the Press and Telefís Éireann who had so connived would be guilty of an offence of either "encouraging or advocating" or, in some months time, perhaps of "inciting", if the Minister gets around to changing the section as he has promised. If the amendment was included in the section they would not be any less guilty if they had connived with the group who occupied the premises. They would still have encouraged or advocated the offence but if they subsequently reported the fact that the Fianna Fáil headquarters had been occupied, and reported it in a genuine way, that reporting, by the inclusion of this amendment, would not be an offence because they would be reporting a fact. Their prior connivance would clearly, as the Minister and other people have outlined in relation to other offences, be an offence.

All the amendment seeks to do is to protect the genuine Press in the fair reporting of items which are, in their opinion, newsworthy. I say "in their opinion" because one of the basic principles of a free Press is that it has the right, editorially, to decide what is and what is not newsworthy. This comes to the very heart of the rejection by the Minister and the Leader of the House of the amendment and the principle that lies behind it. It seems there are people here who do not accept the editorial right of the publishers of newspapers to decide what is of value from the point of view of news and what is not. I accept that right and I think the people generally accept it. Very often I may not agree with what is published in one newspaper or another but that does not alter the fact that the editor of the newspaper. as long as he remains editor, has the right to decide what is to be included therein. I suggest the section as it stands inhibits and reduces that editorial freedom of an editor of a newspaper, and especially the news editor of a newspaper, to decide what he can and cannot report in relation to events which have happened.

Senator Ó Maoláin and many others may not have liked the events which took place outside the American Embassy but nobody can deny that they happened and that a large number of people were involved. The event which they were protesting about was one which was of interest throughout the country and related to a matter which was of world interest. It was up to the editors of the newspapers in that case to decide whether it was newsworthy. Quite clearly it was. The way in which they presented it and the fact that it happened might be distasteful to the Leader of the House or to other people but that does not alter the fact that it took place and that the people would not have been properly served by the newspapers of the following day had they not covered that event adequately.

It could be suggested in the same way that some recent offences in this part of the country have not been given the prominence in the newspapers here which some of us feel they ought to have been given but that does not alter the fact that it remains the editorial right of the editor of a newspaper to decide what degree of prominence he should give to such matters. It remains the right of the general public to decide consequently on whether to buy The Irish Times, the Irish Independent, The Irish Press or the Cork Examiner. The choice belongs to the general public and they, in so choosing, will soon decide the economic fate of the journalists concerned. The choice of what goes into the journal—which will subsequently influence the purchaser— remains with the editor.

This section as it stands is going to reduce that editorial freedom and will, as I suggested earlier to the House, to some extent bring us back to the situation which pertained during the Second World War which was accepted at the time as a matter necessary to preserve national security. That is not the situation at present. Indeed, if there were to be any moves in the direction of national security it would be in relation to events far removed from alleged offences under this Bill when it becomes law.

The Minister pointed out that if an amendment of this type was being put forward it ought to have been a general one in relation to indictable crime on a general basis. He asked: "Why pick on these particular crimes?"— the offences of forcible entry, forcible occupation and the offence under section 4. The answer to that is quite simple. We are not picking on these particular crimes. We are entering an amendment in relation to section 4 because section 4 is part of a Bill which is before the House. It is a particularly repugnant section of a Bill which is generally repugnant. The attempt to change this section on Report Stage is merely an attempt on the part of some Members of the House to endeavour to improve a particular section of a Bill which is thoroughly distasteful. On the same principle as Senator Kelly has outlined several times during the day, one must accept the fact that the section is there; the Minister has not seen fit to remove it or substantially amend it and the duty, therefore, devolves upon the Opposition to introduce amendments which they think will improve the section in some way, however distasteful the section may still be.

The Minister also spoke about this "new concept". This is not a new concept. All that is being sought in this amendment is to protect and safeguard what is regarded by many as the existing right of the Press freely and without fear to report items of news in relation to events which have taken place. If that right is removed or interfered with as I suggested earlier. we are beginning to head away from the position of being a free and open democracy.

In another regard might I suggest to the House that if the right, for example, of Radio Telefís Éireann to report in an open way offences which may be offences under this Bill is removed and if those people who possess television sets can switch to either of the other two channels and see those same events being reported by either the BBC or Independent Television, will the people not begin to feel apprehensive that their own State-owned broadcasting station cannot so report those events? That is the sort of position which one tries to prevent by entering an amendment such as this.

In relation to representatives of subversive groups appearing on television the Minister asked "what control the producers in the television station would have over what they might say?" My answer would be that the producers of television programmes would have absolutely the same control as they have at present in relation to statements from representatives of subversive organisations, a control that they exercise responsibly and reasonably.

If one accepts that journalists—and that includes those working in television—are not deliberately endeavouring to disrupt public order and morality, if we want to include Senator Ó Maoláin's additional rider, then it should be quite clear that there is no need to include them or join them in the possible offences under section 4. The fact that the Minister has so definitely, and in such an offhand way, rejected this amendment makes clear to this House that this is a principle which apparently is not accepted by the Government or by some members of the Government.

Perhaps that was becoming obvious when the Taoiseach recently pointed out that there were no more demonstrations in the United States—or so he thought—and that when he inquired about it he discovered that the journalists there had made a secret pact not to report on such disturbances and demonstrations. He seemed to indicate that he thought it would be a good thing if that happened here. All I am suggesting to the House is that what the journalists who received the admiration of the Taoiseach were doing was exercising their editorial right to decide whether or not to report something. They were exercising it of their own accord. If section 4 of the Forcible Entry Bill becomes law in its present form the journalists in this country will not have that right any longer. It will be exercised for them and on their behalf by the Minister for Justice. Nobody in this House or this country could suggest that at present he is the closest friend of the members of the Fourth Estate.

Amendment put and declared lost.

I move amendment No. 20:

In page 3, lines 51 and 52 and in page 4, lines 1 to 3, to delete all words from and including "unless" to and including "vehicle,".

I consider it a very dubious honour and not one I particularly relish to move the last amendment of the many amendments that we have had to this Forcibly Entry Bill. The purpose of this amendment is to amend section 5 of the Bill.

Section 5 relates to the proof of ownership of land or a vehicle. As amended by this amendment it would read:

In any proceedings in relation to an offence under section 2, 3 or 4 of this Act or to conspiracy to commit such an offence, it shall not be necessary for the prosecution to prove ownership of the land or vehicle.

The effect of the amendment would be to delete the part of section 5 which I consider to be very objectionable and which places a very unfair burden on the defendant. The effect would be to delete the words:

unless the defendant shows to the satisfaction of the court that he or, in the case of proceedings relating to an offence under section 4, every person whom he encouraged or attempted to encourage has a bona fide claim to ownership of the land or vehicle....

I said on Committee Stage when I opposed this section that the problem with section 5 is that the Minister is under a misapprehension as to the law in relation to proof in order to secure a conviction for forcibly entry. In this respect I propose, first of all, to refer rather briefly to this question in the 37th edition of Archbold at paragraph 3605. There is a reference there to absence of title:

Absence of title in the prosecutor is no defence, the gist of the offence being the force.

In other words, the prosecutor does not have to show title. On Committee Stage I showed that the prosecutor does not have actually to show his title, that it is sufficient for the purpose of conviction if he can show that he had actual occupation of the premises or was in the receipt of the rents and profits. The whole problem that the Minister is trying to solve is an unreal problem. The problem does not arise.

I should like to refer briefly to the Committee Stage of the debate. At column 598 of the Seanad debates of 20th August, the Minister said that what he was trying to do in section 5 was to remove the necessity to prove title. From my reading of the law, there is no necessity to prove title in order to secure conviction. The Minister stated:

It is simply that they do not have to go through the full legal process of proving the legal ownership of some property whether a house, a vehicle or otherwise, to which quite clearly the defendants make no claim. One example of this sort of activity that we had in the last six months was the forcible occupation of an aeroplane, a Boeing jet or similar type of plane, which was the property of BOAC and which had just landed at Shannon airport. To suggest that the six or eight members of a subversive organisation who occupied that plane had any claim to ownership of it, to suggest that BOAC was a subsidiary of Sinn Féin, is really dragging things to extremes. Not for one moment did the people concerned claim to have any right to be there or to have a claim or share in the ownership of the plane in question.

In order to secure a conviction it was not necessary to prove the title of BOAC to their plane. This is the whole point of the fallacy upon which the section is based and is the reason for my amendment. It is not necessary for an owner to prove ownership. In proposing this amendment, I was worried as to its effect on a later section of the Bill, namely section 8 which relates to the jurisdiction of the district court. This section states:

Notwithstanding any statutory provision or rule of law to the contrary, the jurisdiction of the District Court shall not, in summary proceedings in relation to an offence under this Act, be ousted by reason solely of a question of title to land being brought into issue.

In moving this amendment and stating the position that proof of title to ownership is not necessary to secure a prosecution, I wondered whether I was disturbing section 8. However, I do not think so, and I have not put in any consequential amendment to that effect, for the simple reason that it will always be open to the defendant to introduce a claim of ownership, however remote, to the property in question. If the defendant can give any evidence of an estate or interest in, or any evidence of ownership, or any evidence of permission of the owner, or having acted on behalf of the owner, then this will be a good defence. We have stated it in the definition section, and have repeated it in sections 2 and 3, that he cannot be guilty of the offence if he is the owner. Therefore, ownership could be relevant in a prosecution before the district court and section 8 remains undisturbed.

The effect of the amendment is to remove from the Bill the fact that unless the defendant shows to the satisfaction of the court that in the case of proceedings relating to an offence under section 4 every person who encouraged, or attempted to encourage has a bona fide claim to ownership of the land that it would be necessary for the prosecution to prove ownership. This would put the position in line with what I think it ought to be in law, that the prosecution would not have to produce evidence of title to ownership, that they would have to produce evidence of the offence. The offence—and I think that the Minister will concede this—is basically an offence against possession, and proof of possession would be quite sufficient. This would not take up the time of the court, and it would mean that the balance of the trial would be, in my view, a more correct balance.

As Senator O'Higgins mentioned on Committee Stage, when we were debating the amendment to oppose a section entirely, the present state of the section would mean that the defendant would be at risk if he kept silent, and that he would appear to have an evidential burden of satisfying the court that he had a claim. I do not think that this is a proper method of coping with the problem and it is always open to the defendant—and I think that it is a very wide defence— to establish in any way that he had any question of an estate or interest in the land, or that he had any colour of a title, and this would grant him an exemption. However, the straightforward position should be that the prosecution had to prove every element of the offence, but that one of the elements which they would not have to prove, and which they do not have to prove under English law, is actual legal title to the property. It is not the title of ownership to the property that should be in dispute: it is a question of possession.

I should like formally to second this amendment.

This amendment would produce the result in section 5 that it would never be necessary for the prosecution to prove ownership of the land or vehicle. In my opinion, it would be unfair and quite unnecessary to remove altogether from the prosecution the necessity ever to prove ownership. Where a defendant shows to the satisfaction of the court that he has some colour of right to the property, which he is alleged to have entered or occupied, it is only right and equitable that the prosecution should have to prove the ownership in full.

I find that this amendment runs counter to the views that were expressed pretty strongly by Senators generally on the other side, and by Opposition Deputies in the Dáil that not alone should the prosecution have to prove ownership—that was almost a sine qua non—but that they should always have to prove it. The partial remission or partial exemption from proof that the section as it stands allowed was altogether wrong. This amendment would have the effect of going very much further than the section in removing all obligation to prove, even where the defendant genuinely had some sort of bona fide claim or colour of right or title. For that reason I find the amendment unusual. Senator Robinson tells us that it is based on the assumption that English law does not require proof of title and, therefore, that it would be superfluous to have it here.

There are two observations I could make now on that point. One is that English law is, presumably as it is under this series of Acts, not as Irish law will be under this Bill when enacted, and there is clearly a need for this provision in this section. The strongest case for it was made by Senators opposite that there is clearly a need for it under Irish law. Unfortunately I do not quite get the reference which Senator Robinson made to Archbold. She was quoting from the 37th edition but unfortunately my Department have only the 36th edition. Perhaps it may not be in the public interest that they buy every edition of Archbold that is published, as it costs about £6 or £7, or possibly more. However, quoting from what would be the corresponding part of the 36th edition, at paragraph 3603 headed “Seisin” it states:

The prosecutor must prove that he was seized in fee of the premises in question, or otherwise in lawful possession, at the time of the forcible entry. The prosecutor's title is not part of the issue, and probably need not, for purposes of conviction, be stated with precision: ... And proof that he was in actual occupation of the premises, or in the reception of the rents and profits, is sufficient prima facie evidence of his seisin: ... This presumption, however, may be rebutted, either by direct evidence of his having a less estate, or by evidence of circumstances from which the jury may presume it.

It goes on but I do not think that the rest is really relevant. Unless that there has been some change in the position in the years since the 36th edition— which would be about six or eight years ago——

I quoted that section to the Minister on Committee Stage.

——that does not seem to presuppose that even in England there is a complete absence of the need to prove title. As I understand it, it seems to say that it is not necessary to prove title in the sense that you have to prove it to a purchaser. If you prove that you were in possession and that you had a right to be there, and prove it in a sort of general way, that would suffice. Again, this amendment seems to have the effect, whether it is intended or not, of making the defendant's position more difficult and, strangely enough, of making the prosecution's position much easier. We must strike a reasonable balance and the balance that has been struck in the section, as drafted and as it stands, is a fair one as between prosecution and defendant because it puts the onus entirely on the prosecution in any instance where the defendant has some right.

The Minister has not quite taken my point on this. The position here is substantially different fron the position in England. Any attempt by the defendant to prove that he has any remote property connection, any remote interest or estate or anything that will get him in under the wide definition of "owner" in section 1, would be a good defence. This would not operate in England. May I refer briefly to Russell on Crime—10th Edition, page 285, to illustrate the difference in position there? It is stated:

A joint tenant or tenant in common may offend against the statutes either by forcibly ejecting or forcibly keeping out his co-tenant; for though the entry of such a tenant is lawful per my et per tout, so that he is not liable to an action of trespass at common law, yet the lawfulness of his entry does not excuse the violence, or lessen the injury, done to his co-tenant; and, consequently and indictment of forcible entry into a moiety of a manor, etc. is good.

Here is a situation where there is forcible entry by one co-tenant against another. You could not have that in our position. The forcible entry by a co-tenant against his fellow co-tenant would be forcibel entry by an owner and, therefore, that person would be exempt under this rather extraordinary Bill we are enacting. The position does not arise that the defendant needs the same type of protection for the simple reason the defendant has only to give evidence of any sort of estate or interest or evidence of acting on behalf of one of the other owners or acting with the permission of the owner in order to get exemption under the Bill. Similarly, the position will not be one of competing ownership, because any evidence of ownership will give the defendant exemption under this Bill.

The position is an illogical one and I find myself trying to cope with this fact in moving this amendment. If the defendant has any claim to ownership, whether he has a claim to possession or not is quite another matter. By raising this to the court he will secure exemption from criminal liability. The position then is that the prosecution should not have to prove ownership, since ownership has lost its meaning in this Bill. It is not a question of conflicting claims of ownership, it is a question of whether the defendant in-question can qualify for exemption under the Bill.

Amendment put and declared lost.
Amendment No. 21 not moved.
Question proposed: "That the Bill be received for final consideration."
The Seanad divided: Tá, 23; Níl, 17.

  • Brennan, John J.
  • Brugha, Ruairí.
  • Cranitch, Mícheál C.
  • Crinion, Brendan.
  • Doyle, John.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Farrell, Peggy.
  • Fitzsimons, Patrick.
  • Gallanagh, Michael.
  • Garrett, Jack.
  • Hanafin, Desmond.
  • Honan, Dermot P.
  • Keegan, Seán.
  • McElgunn, Farrell.
  • McGowan, Patrick.
  • Nash, John J.
  • Norton, Patrick.
  • O'Callaghan, Cornelius K.
  • Ó Maoláin, Tomás.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Walsh, Seán.


  • Boland, John.
  • Desmond, Eileen.
  • Dooge, James C.I.
  • Farrelly, Denis.
  • FitzGerald, Alexis.
  • FitzGerald, Jack.
  • Horgan, John.
  • Kelly, John.
  • Lyons, Michael D.
  • McDonald, Charles B.
  • Mannion, John M.
  • O'Brien, William.
  • O'Higgins, Michael J.
  • Owens, Evelyn P.
  • Prendergast, Mícheál A.
  • Robinson, Mary T.W.
  • Russell, G.E.
Tellers:—Tá: Senators Brennan and J. Farrell; Níl: Senators Horgan and Robinson.
Question declared carried.
Question proposed: "That the Bill do now pass."

At all stages of the debate on this Bill, there has been persistent complaint from the Minister for Justice that his motives, and those of the Government, have been misunderstood and misrepresented. If that is true, it is equally true that the position of the Fine Gael Party has been misunderstood and misrepresented; and a good deal of what has been put up by way of argument on the Government side has taken the form of rebutting propositions which we in Fine Gael never advanced.

The debate here has been in many respects unsatisfactory, chiefly because, as became obvious, the Minister was determined to accept no amendment whatever, no matter how strong the arguments in favour of it, because to do so would involve bringing the Bill back to the Dáil, now in recess, and would, therefore, delay the passage of the Bill by a matter of two or three months. This party wishes to protest in the strongest terms against any Minister approaching either House of the Oireachtas in this spirit. The con stitutional right of either House to amend legislation must not take second place to administrative or political convenience.

In view of the Minister's disposition in this regard, it might have seemed futile for Fine Gael to continue to press amendments on Committee and Report Stages, but we decided to do so rather than to appear to acquiesce in the Minister's line of conduct. Even on this final stage of the Bill, accordingly, we wish to put on record, in as concise a form as possible, our views on the Bill and on its defects.

We have repeatedly stated, at all stages, both here and in the other House, that we do not dissent from the objective of the Bill, namely, the control of subversive groups who trample on the property rights of individuals in order to promote civil disorder or demonstrate a political point of view. Indeed, our attitude has been that the Government, so far from behaving with excessive harshness towards the forces of lawlessness and subversion has, on the contrary, neglected its fundamental duty of upholding law and order and of keeping under proper control violent and seditious elements who recognise no law and treat with contempt the basic principles of democratic government. Let there be no misunderstanding, no misrepresentation about Fine Gael's position in this regard. We are against forcible entry and occupation of private property as we are against all breaking of the law, civil or criminal.

Our objections to the present Bill are, however, valid notwithstanding our agreement with its objective; and these objections have remained unanswered from the Government side. I may summarise them briefly, and classify them as objections based on the Constitution, objections based on the incongruity and impracticality of several parts of the Bill, and objections based on defective drafting.

The constitutional weaknesses of the Bill, as we see it, are at least two in number. Firstly, the definition of "owner" in section 1 is drawn in terms so wide as to include a person with no right whatsoever to occupation or enjoyment of the premises concerned; and section 2 exempts all "owners" from criminal liability under the Bill. The result of this is that somebody technically classified as an "owner"—for example, a ground landlord with no present right to enter the property—may forcibly enter it simultaneously with some other person not classifiable as an "owner", but with an equal lack of right to enter, and in respect of two entries, both, but for this Bill, equally unlawful, one person is criminally liable, the other is not. This seems to us to infringe Article 40 (1) of the Constitution as breaching the principle of equality before the law.

The second constitutional weakness which the Bill possibly contains is the provision of section 7, paragraph (b), which purports to allow a person to be sentenced to as much as 12 months imprisonment on summary trial, that is to say, without a jury. There are, in our view, strong doubts as to whether this may not infringe Article 38 (2) of the Constitution, which permits the summary trial only of "minor" offences, since an offence carrying a possible year's imprisonment is arguably not a "minor" offence; and, in our view, any benefit which the State might possibly derive from this clause is outweighed by the question-mark which must necessarily hang over its constitutionality.

Our objections based on impracticality and incongruity are as follows:

First, although the definition of "owner", which has the effect of exempting anyone so defined from criminal liability, is artificially, and in our view properly, extended to cover an overholding tenant, it does not cover persons such as "overholding" licensees, permissive occupiers, mortgagors, et cetera, who are in a relationship to the person entitled to occupation reasonably analogous to that of an overholding tenant, and are in the typical case in no way connected with subversive elements. The result is to make such persons criminally liable for forcible occupation, in other words, to import the police into a basically civil law or private dispute, although it is alleged as the reason for not applying the Bill to a landlord who wrongfully goes into forcible possession that the Minister wishes to keep the police out of such disputes.

Secondly, the offence created by section 4 of "encouraging or advocating" the commission of offences under section 2 or 3 is, in our view, un-desirably wide and imprecise, and it is understandable that it has caused alarm with the Press. Since the Minister has undertaken to introduce new legislation to replace these words with the well-understood concept of "incitement", no more need be said now, except to repeat that this improvement should have been made by the Seanad itself in the course of the proceedings here. The Minister's concession on the point is welcome and we accept it as well-intended; but it is not our fault if the Bill goes through as it now stands, still containing the offence of "encouraging or advocating".

Thirdly, the group liability of section 4, subsections (2) and (3) seems to us, as it stands, to catch persons only very marginally connected with an offence under subsection (1), and to offer them an escape route only via the reversal of the onus of proof, which is undesirable except in very special circumstances; moreover, the sections as they stand will involve any court in a virtually impossible investigation.

The main drafting defects which we see in the Bill are as follows:

Firstly, section 1 defines "owner" as including, inter alia, anyone acting on behalf of the owner, and thus inferentially creates an endless chain of possible delegation; somebody acting “on behalf of the owner” is himself considered “owner” and so can in turn get a third party, who may be quite unknown to the original “owner”, to act on his behalf, and so on. This result can scarcely have been intended.

Secondly, section 1 subsection (3), in exempting from the application of the Act certain classes of person, mentions an entry "with the permission of the owner" but does not mention the "owner" himself. The subsection is probably superfluous anyway; but if it does fulfil any purpose, the recital of exemptions in it should at least be complete.

Thirdly, section 4 speaks of a "statement", amounting to an "encouraging or advocating, made by or on behalf of a group"; in our view the word "statement" might not include encouraging or advocating by gesture or by pictorial representation on a placard, and some other form of words should have been chosen.

Fourthly, the defendant in a "group liability" case is liable to conviction "in the absence of any adequate explanation by him". This formula, copied from the law relating to possession of house-breaking tools, etc., is quite inappropriate here, as it leaves uncertain what form any "explanation" must take in order to be "adequate".

All these objections—constitutional, practical and formal—have remained without sufficient answer from the Government side, and, indeed, in some cases not even an attempt was made to answer them. The Fine Gael Party in the Seanad accordingly feel entitled to describe this Bill as a measure of doubtful value, carelessly put together in response to insufficiently thought-out political instructions, likely to be both unfair and unworkable in practice, and in general a good specimen of fifth-rate government.

I am very glad to know that the Fine Gael Party now accept the Bill.

Is this a speech?

The greatest show on earth.

A mini-speech. All I want to say is that I am very glad the Fine Gael Party accept the Bill. I hope Senator Kelly is now quite satisfied that no attempt has been made to bullock it through the Seanad.

I want to say on behalf of the Labour Party that we do not accept the Bill. We have now reached the Final Stage on this controversial measure. When we assembled for Second Reading I, on behalf of my party, proposed that, due to the crisis in another part of our country, the debate on the Bill might be postponed. Needless to say, that request was not granted.

The Minister, the Government and the Fianna Fáil Party seemed to be obsessed with the idea of getting the Bill passed before the Dáil went into recess. The Dáil went into recess on the 6th August. That being so, the Bill as passed by Dáil Éireann and as brought in here by the Minister for Justice was the Bill that would be taken to the Park. The Minister's halt or stop-off here in the Seanad was merely to comply with the Constitution because the Bill had to pass through the Seanad.

It seems to me a great tragedy that many worthwhile amendments that would have improved the Bill were rejected because of the Minister's obsession with the idea of having the Bill passed.

As I forecasted, no amendment was accepted on Committee Stage. It will be noted that the Labour Party put down no amendments on Report Stage because we realised it was farcical and it would be ridiculous and a wasteful exercise. At the same time, I must express my admiration of the Senators who put down amendments to this Bill and for the way in which they pressed them but I am sure they must feel very frustrated that what appeared to them and to us a very worthwhile exercise was a waste of time. The Minister, the Government and the Fianna Fáil Party have had their way. I only hope that when the Bill goes to our President he will refuse to sign it.

The Chair must point out that debate on Fifth Stage is restricted to what is in the Bill. The Senator has so far been dealing with a variety of matters which are really extraneous to the matter at issue. This debate should be confined to the matters contained in the Bill.

The Bill is still before the House and it has to be signed by the President.

The Chair would like to point out that does not arise on Fifth Stage.

Earlier in the course of the debate today, the Leader of the House, Senator Ó Maoláin, accused the Fine Gael Party and the Labour Party of holding up the Bill. I make no apology for it and neither, I am sure, does any member of my party in Dáil Éireann make any apology for an attempt to hold up the Bill in the Dáil. This Bill was introduced in January and from February, 1971—I am open to correction on this—this Bill was not discussed again until July.

The Chair would like to go back to the statement it made several weeks ago that the proceedings in the other House do not arise in this House.

Perhaps the Cathaoirleach was not in the Chair at the time, but the Leader of the House referred to it today and accused the Labour Party and the Fine Gael Party of holding up this Bill which the country so badly needed.

If that statement was made it has now been replied to and perhaps the Senator might leave it.

I have made my point. The year 1971 has been wasted by the Government. Parliamentary time has been wasted on this piece of repressive legislation. We have a headline in tonight's Evening Press showing that the number of redundancies in this country doubled in 1971.

This does not arise on the Fifth Stage of the Bill. The Chair must insist that the Senator should come to the question of what is in this Bill. The Chair cannot allow the Senator to stray like this on a variety of other matters.

There are a whole lot of redundant sections in the Bill.

Yes, but they were not included in the redundancies that are announced in tonight's paper. I submit that parliamentary time would be better spent dealing with redundancies and dealing with——

None of this arises on this Bill.

If the House had dealt with housing in the way in which housing should have been dealt with there would not have been any need for this piece of repressive legislation.

I should like to make one brief statement on this Bill. I do not want to hold up the proceedings in the House any more on it. Before I make the statement I should like to express my personal gratitude to the staff of the House and to the people working in the Houses of the Oireachtas for their patience, their courtesy and their helpfulness in this very long drawn out debate. I think they are very much to be complimented on it. My statement of opinion on this Bill is as follows: Never in the history of this Parliament have so many Members spoken for so long and so unavailingly on such a bad Bill.

Comment was made on a number of occasions during the debate on this Bill on the lack of courtesy which was shown to this House and to the fact that the Seanad was not treated as it should have been treated as a House of the Oireachtas created by the Constitution. We had at the beginning of this Stage a statement by one member of Fine Gael which was read out so quickly that it was impossible to hear what was said in it and which was quite clearly designed to be read into the record of the House and handed to the Press. This was as clear an indication, as clear an example, as I have seen in this House for a long time of lack of courtesy and lack of consideration for the House. It was impossible to hear what was being said; it was quite clearly being read out so that it could be read into the records and then handed to the newspapers.

Why did the Senator not express that point when the Senator was speaking?

I think that this is a very clear indication of lack of courtesy. I am not quite clear what the gist of that statement was, or what it all added up to in the end. It seemed to me, as far as I could follow it, as Senator Kelly raced ahead, possibly trying to catch an edition of the newspapers, that the gist of it was that Fine Gael are in favour of the main principles contained in this Bill. Perhaps I am wrong. If so it is because I did not get a proper opportunity of hearing what was said.

Why did the Senator not express that point earlier?

He is making it now.

I can quite well imagine that Fine Gael would be making an effort at this stage to clarify their own position, because they must be well aware at this stage that their own grass roots are dismayed at their attitude to this Bill up to now. I am not surprised that they are making an attempt, even at this stage, to rehabilitate themselves with their own supporters.

If I am right in interpreting the attitude which Fine Gael are taking, it is that having made a reservation and having introduced amendments and so on, basically they are in favour of this Bill. I think it is quite clear that many of those who opposed this Bill—and I would say certainly the majority of those who opposed it most loudly, not only in this House but in the other House and in newspaper letters, pamphlets and so on—opposed it not for any of the fine legal points that were made in this House, but because they were against any restriction on forcible entry. They opposed it for reasons that had no validity that could be recognised in this House or in any other democratic institution.

Senator Mary Robinson made quite a contribution to this Bill. She spoke at some length and with some frequency. I think her contribution could, in fact, have been narrowed down to the contribution which she made last Thursday as reported in Volume 71 at column 535 of the Seanad Debates, She said, dealing in a general way with Hume Street:

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.

It is quite clear that this is the real kernel of Senator Robinson's opposition to this Bill. It is quite clear that her series of amendments and the debating points that she made in regard to this Bill were quite irrelevant. She was against, and is against, this Bill because it would prevent her from forcibly entering buildings in situations that she would choose. She is against any restriction on her right to incite or encourage or advocate people forcibly to enter buildings in situations that she would consider were well intentioned and had some proper motive.

It is quite clear that no matter what amendments were accepted by the Minister in this debate, no matter what concessions he made, no matter what was done with this Bill, she would be against it if it prevented forcible entry of property. I think that not only in her case, but as I have said before, the greater part of the vociferous opposition we have had to this Bill, not so much in this House, but in the other House and outside, was for reasons which had no validity. They opposed it because they were opposed to any restriction on their right forcibly to enter private property and to incite other people to do likewise. The Minister has brought this Bill through the other House and through his House. He has made many concessions, accepted many amendments in the other House, and he answered and dealt with every point that was raised in this House and could not go further than he has gone to meet the legitimate points of view that were put forward. Consequently, if I interpret the attitude of Fine Gael correctly, I am glad when the chips are down that they accept that private property owners have some rights in this country, that they accept the Article in the Constitution in regard to private property and that they accept the fact, this is the main purpose in this Bill, that forcible entry of property is something which is an evil and which has to be prohibited and prevented to the best of our ability.

Unless you are a property owner.

Since apparently both Senator Ó Maoláin and Senator Ryan do not yet understand the Fine Gael attitude on this Bill, I should like to reiterate a few points. When we say that we agree with one of the objectives of this Bill, this must not be taken as an indication that Fine Gael are of the opinion that this Bill is capable of achieving even part of the objective of which we approve. It certainly cannot be taken as an indication of approval by the Fine Gael Party of this Bill, as it stands, as it has gone, unamended, through this House and it will leave this House.

As Senator Kelly said, what is needed at the moment is a greater enforcement of law and order but that cannot be interpreted as an approval of this pitiable Bill which the Minister has piloted through this House by the device of blasting the rocks out of the way as he pilots it in a dead straight line. We, in Fine Gael, are not backtracking, as Senator Ryan has suggested. We have opposed this particular measure and these particular provisions because we believe this is a completely unwarranted incursion into certain freedom which should be part of any modern democracy. We still maintain the same position. The contents of this Bill now before us on Fifth Stage are unacceptable.

We certainly have travelled a long distance since this debate started. We have covered a very wide field indeed. We have travelled backwards and forwards through the tunnel of time. We renewed acquaintances with Socrates, Plato and Aristotle. We saw Sir Edward Poynings and Oliver Cromwell in the middle distance and we heard new words like "bullocking" and "lambegging".

And we spoke a lot of Norman French.

We met those terrible twins tweedledum and tweedledee. Today I was, in a very gentlemanly way, rebuked by Senator Alexis FitzGerald for my usage of those words in a certain context. I am the unrepentant Fenian so far as my usage of those words in the context in which I used them is concerned. To return to our journeying backwards and forwards, we learned, at long last, to distinguish and differentiate between mens rea and “women's lib”. Now that we are drawing to a close I hope there will not be any bad feelings. If we regard the whole exercise as a race, then our friends across the floor had the misfortune to put their money on an animal with very questionable credentials. They can be considered very questionable credentials, indeed, if you look at the credentials of the punters who assembled at the gates of Leinster House and in O'Connell Street. In fact, I would go so far as to suggest that the sire of the horse they backed was as much “Stalin” as stallion. We, on the other hand, placed our money on an animal I would call “Home, Sweet Home”. We had an excellent trainer; in fact, both sides of the House had excellent trainers. Our Whips were also very commendable.

You had plenty to whip.

But we managed to win the race because the animal we backed was sound of wind and limb.

We had a first class jockey in the person of young O'Malley of Limerick and we hope he will live long to jockey, not bullock, many excellent measures through this House.

"Jockey" is the mot juste.

No matter what side we took in this debate, I am sure every Member will go home this evening justified and thanking God in his heart that, because of the passage of this Bill, he will have a home to go to.

After that statement from Senator Cranitch the least I could do would be to say that, had he been the Fianna Fáil spokesman on this Bill, we might have gone a lot further than we did with the Bill because I think that Senator Cranitch recognises the fact that the exercise conducted in this House by his brilliant "jockey" for the last three or four weeks was, in fact, a futile one. Senator Cranitch has sufficient sense of humour to try to see that tragedy as a skit but, in fact, it is a tragedy for this House, for our parliamentary institutions and, possibly, even for individual Members of this House.

It is a tragedy, for example, that a Senator of the ability and capacity of Senator Ryan should choose the Final Stage of this Bill to make an allegation which, so far as I know, was not made at any other stage of the Bill by the Minister or by any other Fianna Fáil spokesman: he dubbed the opposition to this Bill as largely coming from people—he did not confine it to this— because they were opposed to the limitation of the right to enter other people's property either for themselves or for others. He taunted the Fine Gael Party with endeavouring to change their feet in relation to this measure.

I congratulated them.

It is a tragedy that a person like Senator Eoin Ryan should choose the Final Stage of the Bill to indulge in that kind of tactic. For the sake of putting the record straight, because that kind of statement is obviously the kind of fodder which the "little jockey" would enjoy getting, if he intends to speak to what is left of Fianna Fáil cumainn throughout the country in relation to this Bill, I want to remind Senator Ryan that a number of speakers from the Fine Gael Party contributed to the Second Reading of this Bill. I was one of them. I want to refer just to a few passages in the speech I made on that occasion. This was when we were dealing with the Second Reading of the Bill, the first opportunity this House had of dealing with it and, at column 192 of the Official Report of 11th August, I said:

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

At column 195 of the debate of the same day, dealing with the question of civil law and criminal law, and their applicability to matters of this sort, I said:

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

At column 192 I also said:

I believe in the rights of private property, the rights of individuals to own their own homes, to own their own property. I am as well aware as any other Member of this House that those rights are subject to certain limitations enshrined in the constitution and guaranteed by the Constitution. To my mind there is an obligation in certain circumstances on a government, whether it be this Government or any other government, to take legislative action in order to safeguard those rights if those rights are threatened in a way which requires legislative action to protect them.

Will Senator Ryan concede, having heard that, possibly for the first time, because I do not know whether he was here when I spoke, that the attitude of this party in relation to this Bill was made very clear from the outset? It was made clear by me; it was made clear before I spoke by Senator John Kelly, Senator Alexis FitzGerald and by every other member of this party who contributed. There has never been any doubt in our minds with regard to the rights of the people which should be protected. There has never been any doubt in our minds with regard to the duty and obligation of the Government to enforce the law and do so impartially. There has never been any doubt whatever in our mind with regard to any of these matters and we have never endeavoured at any stage of the discussion on this Bill to hide our views. We never had to change our feet on this measure because we made our position absolutely clear.

Having made our position in principle clear we were entitled to do what we did in relation to this Bill, to look at the Bill and see if it was a satisfactory measure. There was virtual unanimity on this side of the House, although it is representative of different political parties and of individual independent Senators. There was virtually complete unanimity that, in a number of respects, this Bill was bad and defective, that it was the kind of Bill which would not achieve what the Minister set out to achieve; it was a Bill which was bad because it created three new crimes for some people and not for others; it introduced into our legislation, for the first time in relation to criminal law, this concept of guilty by association because it included a definition of "owner" which was so wide as to make it a farcical Bill when one had regard to the fact that owners, no matter how remote, no matter how slight, no matter how minute their interest might be, were being exempt from the provisions of the Bill and were being given an immunity which other people were not being given. We protested, and I think we were well within our rights in protesting that the attitude of those sponsoring this Bill was that no amendment was going to be accepted, that no matter how bad the Bill was it was going to leave this House as it came in without the alteration of one word, one dot or one comma. There is no doubt at all that it was with that attitude that the Bill was brought into this House, with an absolute steely determination that, no matter how right Senators on this side were, while their arguments would be listened to they would not be heeded to the extent of amending this Bill in any form.

We have a Bill before us now in respect of which the Government, the Minister, the Senators supporting him, virtually refused even to contemplate declaring bona fide reporting of events as being outside the scope of the Bill so far as being an offence is concerned. I suggested at an earlier stage that the manner in which this House has been dealt with by the Minister—I do not mean that in a personal way because he is acting as one with collective responsibility with the rest of the Government—but by the Minister in that sense, and by those who have backed him in this House in relation to this Bill was nothing short of insulting. I went so far as saying that, if this House were to be treated in that manner, if we were to be told, in effect if not in words, that no amendment was going to be accepted because the Dáil was in recess and the Minister did not want to wait until the Dáil sat again, that that was insulting to and stultifying on the Members of this House. I pointed out, and I want to do so again, and this is my final word, that that could not have happened but for the fact that it was acquiesced in by every Fianna Fáil Senator here. Was there ever a time, I wonder, in the history of Parliament that there was such a collective act of sickening sycophancy in support of any measure brought before an Irish Parliament?


Hear, hear.

I do not propose to say more than a few sentences. I have been looking again at this Bill and asking myself certain questions. What does it contain? How can we sum it up? This Bill can be shown to contain one thing and it, possibly, contains another as well. What it contains, most sadly, and what it constitutes, is the fact that it is the graveyard of any possibility of a rational approach by the Government party to the problem it sought to solve, the problem which the Minister has shown no real interest in solving; the problem of housing our people. It may also, and I hope it will, prove to be the graveyard of the Minister's political and legal standing. Time will tell.

You are an optimist, sonny.

At the end of possibly the longest debate on any Bill in the history of the Oireachtas, I suppose there is a very great deal I could say. In fact, there is a very great deal I could say but, in the general interest, I shall not say very much, if any of it. There are, however, some general thoughts one cannot help expressing. I have been accused of discourtesy to the Seanad. Discourtesy was not my intention and I do not think that discourtesy was my action. Indeed, I went so far as to avail of a method, or a device, to meet a point made by Senators opposite, a device I do not think has ever before been used in this House or in the other House. It was an awkward and rather laborious thing to have done, but it was done out of courtesy to Seanad Éireann because I endeavoured, within the limitations in which I found myself, to meet them as fairly as I could.

We had many good speeches from both sides of the House. We had quite a number of constructive points made on both sides but, at the same time, we had a very great deal of sheer rubbish spoken. We had sections, or subsections or phrases in the Bill dissected, analysed, pulled apart, things read into them, things imagined in them, and rather ridiculous efforts made to amend them. This was done to such an extent and in such a way that I increasingly had the feeling over the past week or two that it is potentially dangerous for any Minister to bring any technical Bill of this nature in here in the hope that it will get any sort of reasonable passage. I have two Bills of that kind before the House at the moment. I deliberately introduced them here rather than in the Dáil. I did that as an act of courtesy to the Seanad, because I have often heard Senators complain at the small number of Bills introduced here, Bills which could be introduced here. I also did it because they are technical legal Bills and there are quite a number of very good lawyers here who, I felt, could be very helpful. I am absolutely open in my approach and I have already put down a considerable number of amendments to the Bill which got its Second Reading here a month or two ago and I have no reason to expect that I shall be refusing all or indeed even many of the Opposition amendments which have been put down.

At the same time, the thought kept driving itself very forcibly into my brain over the past week or two that, if I have to subject every Bill, and particularly a technical legal Bill, to the displays of learning that we have had from one or two academic legal peacocks here, it makes it very difficult to contemplate serious Bills of that kind, which should, I think, be introduced here and considered in a fair amount of detail here, and, perhaps, in a good deal less detail in the other House, which is so much busier and so much less capable of dealing with the details of Bills of that kind.

The thought also struck me, and this was a sad thought for me, and it was not as a result of an isolated remark by one or two Senators, that there was the most consistent and persistent criticism of the drafting of this Bill. I accept responsibility for the Bill as it is. However, I think that all Senators know that I personally did not draft it; that that is accepted in relation to any Bill. While I am responsible for every word of it, at least it is known that I am not responsible for the technical expression of it. One could only conclude, therefore, that the criticism of the draftsmanship was directed, in fact, although nominally at me, at the man or men who actually drafted it. That is very, very unfair. It is very regrettable. Indeed, one was led to believe, from the persistent ex cathedra statements of law that could not be disagreed with, or could not be disputed in the slightest degree, that these arrogant, profound, ex cathedra statements of what the law is and what this section should be, and that it could not possibly be anything else, that the Government, if it were to satisfy some people, should disband the parliamentary draftsman's office and have all their Bills drafted in the law school of either Trinity College or University College.

It is appalling when civil servants, who are doing a very difficult job to the very best of their ability, are singled out in this way for that persistent, regrettable criticism. There is a great deal more that I could say, but I do not think that there is any point in my saying it, but one thing strikes me about this Bill, after all the fuss that we have had here in the Dáil, in the Press, on the streets and so on and which is now presumably shortly to be passed. I would like to think what the position of this Bill will be in 12 months time in the minds of the people who are moaning about it now. As in most things about which a great fuss is made, memory is very, very short and, when the Press have not been hounded by repressive legislation in 12 months time, when homeless families have not been hounded into the ground by my alleged jackboots, and so on, the whole thing will fall very flat. Perhaps then, if only then, the truth of what I have been saying, and the truth of what the Senators on this side of the House have been saying, will be realised.

Although we had a long, and sometimes a very difficult and acrimonious debate, there were many very good speeches made on both sides. I certainly heard a lot of law of a kind that I might not learn in Pallasgreen District Court but that is not to say that the type of law that I would learn in Pallasgreen District Court might not be more useful. While it is customary to congratulate those who spoke so well on this Bill on both sides of the House, I think this occasion calls for me to thank and to congratulate some others and, in particular, I have in mind the staff of the House, who had to work so long, so late in the year and who deserve the thanks of all concerned on both sides of the House.

Hear, hear.

I also want to thank those Members of the Seanad on this side who did not speak, but who made sure that this Bill was passed, who were patient in the teeth of what, to them, at least, must have seemed considerable provocation, but who were here as ordinary people, representing the interests of the ordinary people, and who, by their patience, their attendance and their support in this House have vindicated the rights of the ordinary people.

Question put.
The Seanad divided: Tá, 23; Níl, 17.

  • Brennan, John J.
  • Brugha, Ruairí.
  • Cranitch, Mícheál C.
  • Crinion, Brendan.
  • Doyle, John.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Farrell, Peggy.
  • Fitzsimons, Patrick.
  • Gallanagh, Michael.
  • Garrett, Jack.
  • Hanafin, Desmond.
  • Honan, Dermot P.
  • Keegan, Seán.
  • McElgunn, Farrell.
  • McGowan, Patrick.
  • Nash, John J.
  • Norton, Patrick.
  • O'Callaghan, Cornelius K.
  • Ó Maoláin, Tomás.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Walsh, Seán.


  • Boland, John.
  • Desmond, Eileen.
  • Dooge, James C.I.
  • Farrelly, Denis.
  • FitzGerald, Alexis.
  • Fitzgerald, Jack.
  • Horgan, John.
  • Kelly, John.
  • Lyons, Michael D.
  • McDonald, Charles B.
  • Mannion, John M.
  • O'Brien, William.
  • O'Higgins, Michael J.
  • Owens, Evelyn P.
  • Prendergast, Mícheál A.
  • Robinson, Mary T.W.
  • Russell, G.E.
Tellers:— Tá: Senator Brennan and J. Farrell; Níl: Senators Mannion and W. O'Brien.
Question declared carried.