Private Business. - Prisons Bill 1972: Second Stage.

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

I regret very much that the situation has arisen which makes it necessary to introduce this Bill at short notice both in the Dáil and this House. The main provision of the Bill is to authorise prisoners to be transferred to military custody in certain exceptional circumstances. This emergency has resulted from the riot and destruction which was carried out in Mountjoy Prison on the night of 18-19th May.

As as a result nearly 200 prisoners had to be transferred to other prisons. No other accommodation could be found other than at the military detention barracks in the Curragh for 40 of that number. At present these prisoners are nominally, at least, under the control of two prison officers but the real de facto control is exercised by the military authorities at the Curragh. Their powers in this regard are limited if not non-existent and would have to be rectified. It is the purpose of this Bill to give those powers to the military authorities.

I hope, when this transfer was originally made on Friday afternoon last, to utilise the military detention barracks at the Curragh as a purely civil prison but the demands on staff are so severe at the moment, as one might understand, that notwithstanding our considerable recruitment in the last year, I simply have not sufficient staff. The Army authorities are quite adamant and the prison authorities are in agreement that it is impossible to run the prison on a half-and-half basis. It must be either totally under military control or completely under civil control. Apart from that there is the difficulty raised by the location of the military detention barracks in or close to the centre of a fairly large complex of military buildings on the Curragh. The military authorities assured me that it would be impossible to have any sort of civil control over a building which is in the middle of a large military complex.

There is only one section of any great significance in the Bill, section 2, which provides for this transfer to military custody. At the moment there are approximately 40 prisoners in custody in the Curragh. Senators will be aware of the circumstances under which these transfers to Cork, Portlaoise, St. Patricks's, as well as to the Curragh, became necessary. There was a very serious riot in Mountjoy on the night of Thursday, 18th May and the morning of Friday 19th. It was the most serious disturbance in the history of our prisons. An enormous amount of damage has been done. It is impossible at this stage to quantify it in financial terms but it should run into some tens of thousands of pounds at the very least. Apart from the financial implications it means that only a little more than half the number of prisoners who could otherwise be confined in Mountjoy can now be kept there. I described in some detail in the Dáil the course of this riot and the events which occurred on that night.

There is one point which was raised in the Dáil and which was quite erroneous to which I should like to refer. It was apparently based on a newspaper report. This was about the question of a master key having been stolen or obtained from a prison officer. No such key was obtained. A key which opened a very small number of cells in one wing was obtained. This was all the officer was carrying.

Again it is not true to say that the officers immediately lost control or were unable to assist the beleaguered officers. They did so but did not succeed in releasing one of them, Chief Officer Lee, who was put into a cell and kept there by prisoners who had broken free. These prisoners at the time they attacked the officer were not in their cells. They had been on recreation and were returning to their cells.

The other officers in the prison held what is called the "circle" of the prison for upwards of one hour. There were very severe attacks from a considerable number of prisoners. Unfortunately, because of the ancient and unusual design of Mountjoy, it is possible, without going through the circle, which is the focal point of the four cell blocks, to get from one cell block to another through the roof. The roof is a matter to which I will be referring later in reference to the length of time it will take to reconstruct Mountjoy to an acceptable condition.

As a result of prisoners from the B wing, which is the remand wing for unconvicted prisoners, getting through the roof, they got into other cell blocks and broke locks on cell doors and released other prisoners. This, of course, had a cumulative effect, as Senators can well imagine.

The destruction was extremely severe and just about every movable fitting that could be broken was broken. A very large amount of furniture was smashed and a great number of doors of cells were ripped off their hinges or otherwise broken. Every window in the prison was broken and all the sanitary facilities as well as all the medical and dental facilities were smashed. The pharmacy was smashed and all the drugs stolen or destroyed. The people who instigated this destruction alleged that they had three demands. I dealt with the contents of those demands in the Dáil; they certainly were of no substance. It is particularly significant that they did not include a demand— this was subsequently issued apparently on their behalf—to be treated as, what they describe, political prisoners.

Indeed, the rioters, who in the first instance consisted for the most part of that particular type of prisoner, released people on that occasion whom on other occasions they have taken on themselves to refer to as ordinary criminals. To say the least of it, they certainly accepted the assistance of these so-called ordinary criminals in the orgy of devastation which followed. A demand was made, following a discussion between some of these people and an official of my Department, that no reprisals would betaken against them. I understood this to mean that no proceedings or prosecutions would follow in respect of the various crimes committed in the course of the riot. I immediately said that there could be no question of that demand being met. Those people were given half an hour in which to cease their activities and go back to their cells voluntarily. The Army who were equipped with CS gas and other riot-control equipment, were brought into the inner part of the prison where they could be seen by the rioters. It was made clear that the Army would be used if those people did not return to their cells. They did, in fact, go back to their cells within 15 minutes of that warning being given.

I have been criticised in some quarters for not having sent in the Army earlier to restore order and for not having delivered this ultimatum previously but on that night I found myself in the position where a senior prison officer was being held hostage by these people. I knew well that these people were capable of taking human life and might well decide to do so. We were also under the impression for part of that night that three other prison officers were being held as hostages because three officers uniforms were apparently acquired by these people in the course of their rampage and were donned by prisoners at a distance from the circle which gave the impression that possibly three other officers were in there. I was, therefore, faced with the dilemma that if I moved in quickly and heavily against these people I might well cause either serious injury or even death to the officers who were being held hostage. For that reason I moved more slowly than my own instincts would normally lead me to move against these people.

I have also been criticised for the fact that a serious riot took place on that occasion and it was said that I should have ensured that no riot would ever take place either in Mountjoy or in any of our prisons. I can answer that criticism very simply by saying that I could have ensured and could continue to ensure in the future that no riot would take place but the methods that I, or anyone in my position, would have to use to ensure that would be to make life perfectly unbearable for all prisoners in our prisons. Our prison population now amounts to approximately 1,075 people. Any question of rehabilitation of our prisoners in those conditions would be out of the question.

I regard prison primarily as a place of training and rehabilitation, not as a place of punishment. The confinement and loss of liberty in a prison should be the extent of the punishment, in my view. While there is a loss of liberty to move outside in the ordinary world, the loss of liberty within the prison itself should be kept to a minimum if we are to have any hopes of rehabilitating all who go there, particularly bearing in mind that many of those who go there are men and women who perhaps never got a chance in the world outside. In many cases the aid, assistance, advice and, indeed, the kindness which they receive in prison are received by them for the first time in their lives.

I could have prevented that riot but the cost of doing so would have been so high socially and might have had a damaging effect on those who visit our prisons from time to time that I would not be warranted in doing it. I regret very much that such an event took place but, at the same time, I make no apology for it because, in the two years since I became Minister, in any discussion in the Dáil on my Department in so far as there was any criticism of the prison system it was that we put too high a premium on security and that we did not do enough to rehabilitate prisoners.

It is evident to anybody who looks at it that the two things are not compatible; maximum security and maximum rehabilitation. What we have done up to last Thursday was, I thought, a reasonable compromise between the two. There was reasonable security and, at the same time, there was a reasonable chance of aiding, assisting, rehabilitating and educating those in the prisons. I have no doubt that what we did up to then in the way of security was more than adequate for the normal prisoner we receive in our prisons.

Unfortunately, we had in the remand wing of Mountjoy Prison at that time a group of people who are not normal prisoners by any standards and who abused their position in the prison and, in particular, in the remand wing, which is used for unconvicted prisoners, to such an extent that this very regrettable event occurred. Not only have I to think of the other prisoners but I have to think, in particular, of the other remand prisoners and bear in mind that they are unconvicted prisoners and that they may never be convicted and may, in fact, be perfectly innocent.

I want to take this opportunity of saying, as I said in the Dáil, and as I said at a press conference last week, that the actions of all the prison staff in Mountjoy on that night was tremendous. I was very proud of what they did and I think the whole nation should be very grateful to them for their bravery and for their dedication to duty.

I have described the exceptional dedication of, for example, Chief Officer Lee. That is typical of the prison service as a whole and I am very glad to be able to say that. On that night, too, the Garda and the Army were there very quickly in large numbers. They prevented the escape of anybody and prevented anybody getting outside the inner part of the prison. Not alone did nobody escape but there was never any possiblity of anybody escaping. I am extremely grateful to the Garda and to the Army for all they did that night, particularly when they were subjected to attacks outside the prison by hooligans and thugs who always seem to gather on occasions such as this. Those thugs were inspired by a small group of anarchists and enemies of democracy.

The length of time which this Bill will remain in force was fixed in the Dáil today: it is until 31st May, 1974. However, it is subject to the proviso that if it should prove possible to do away with military custody before then, Dáil Éireann could pass a resolution taking section 2 of this Bill out of it before 31st May, 1974.

I think I met all sides and all views fairly in the Dáil last night and today. I accepted a number of amendments and put down a number of amendments myself. I do not think that any Member of the Dáil had any genuine cause for complaint about the way that this Bill was handled and I hope the Seanad will find it acceptable and will enable it to be passed very shortly so that it can be signed by the President, if at all possible, tomorrow.

In the Dáil I did not spell out some of the legal difficulties. Perhaps I could say a little bit more about them here. They were referred to in the Dáil by Deputy O'Higgins. There is a very grave danger that certain very dangerous or potentially dangerous people could succeed in their habeas corpus applications. I want to state that for that reason I ask Seanad Éireann for their co-operation in ensuring that we can keep our prison situation totally under control and prevent letting loose on the community any people whom it would be in the national interest to keep in custody, and who have been remanded in custody or sentenced by the courts of this land.

I am probably speaking for all Senators when I say that this House has never proved itself lacking in co-operation with a Minister when there were genuine grounds for co-operation being afforded. I would think that on this occasion, in relation to this Bill, the Minister should have no reason to fear that there will be any lack of co-operation from this House. I was glad to hear the Minister speaking of his co-operative attitude in the Dáil. May I start by expressing the hope that the Minister, on his part, will prove equally co-operative with the Seanad.

In relation to the amendments which have been made to the Bill in the Dáil I can see at the outset that the Minister went a long way towards meeting various points of view which were expressed in the Dáil. Nevertheless, this Bill still bears the hallmarks of what it is, hurried legislation. There are a few points which the Minister should look at again, and which he should amend before this Bill is signed by the President. Otherwise, we may very well face the situation that within a few weeks the Minister may have to come back to the Houses of the Oireachtas to introduce a Bill amending certain provisions in this Bill.

The introduction of any Bill such as this by a Fianna Fáil Minister invites an emotional reaction. The record of the Fianna Fáil Party generally down through the years—and I do not exclude recent years—in relation to the whole question of law and order is such that a certain degree of frustration has been felt by the ordinary people and certainly by members of other parties in the Oireachtas. It is a sad commentary on the lack of preparedness of the Government in the face of the kind of situation which exists even in this part of the country today that a riot in one of our prisons should so dislocate the entire prison service that a Bill of this sort became necessary. I do not think it would have been too much for the people to expect the Minister—perhaps not the present Minister because he has been in office for only a couple of years—and the Government as a whole, to have taken steps some years ago to ensure that law and order would be maintained.

The actions of a small body of men, who it could have been anticipated were likely to see the inside of Mountjoy Prison, in the course of one night could so dislocate the prison service that the Minister found it necessary to come to the two Houses of the Oireachtas with hastily prepared legislation and to invite the Houses of the Oireachtas to pass that legislation in a matter of hours. The whole sequence of events shows a deplorable situation of unpreparedness for which the Government can be faulted.

It is easy to take an emotional approach to this Bill. I do not want to do that. I do not think there is any misunderstanding in the minds of the Government or in the minds of the public where the Fine Gael Party stand on questions of law and order and the security and preservation of the democratic institutions of this State. As far as I am concerned, I am prepared to approach this Bill in a purely pragmatic way. In doing that, we must ask ourselves if the Bill is necessary, if the grounds on which the Minister urges its acceptance by the House exist in such force as to render it not merely desirable but necessary for the Minister to have recourse to the radical solution of seeking the assistance of the military authorities and the Defence Forces to keep people in custody.

If we accept the truth and accuracy of the case made that accommodation in Mountjoy has been so damaged and disrupted that it is necessary to introduce this Bill, then the approach of responsible parliamentarians to the Minister's appeal will be to say that he should have this Bill provided that we can ensure that it is consistent, or can be made consistent, with the rights of the people—I was going to say rights and liberties, but "liberties" might not be the right word on this occasion. One of the rights of citizens who for one reason or another have fallen foul of the law and have been sentenced to terms of imprisonment by civil courts is that they should be lodged in surroundings to which the prison codes up to now apply.

The Minister has made a genuine and reasonable effort to ensure that that code will apply in this Bill. There are some defects in the provisions which have been made and which I propose to refer to briefly now and possibly in more detail on Committee Stage. In his opening speech the Minister raised the question of the differentiation between ordinary prisoners or criminals, on the one hand, and people who claim a special position as political prisoners on the other. I want to say clearly and bluntly that so far as I am concerned I do not recognise that there should be any differentiation whatsoever. If an arsonist burns my house because I am a Fine Gael Senator and another arsonist burns my neighbour's house for some other reason, I see no just cause whatever why there should be any differentiation in the treatment afforded to the two arsonists if they are caught and convicted.

As far as that particular aspect of this matter goes I feel clear in my own mind what my attitude should be. As regards the details of the Bill, there seems to be one glaring omission which should be remedied by this House. I hope the Minister will agree to remedy it. That is, there is no definition whatever of "military custody". I have looked at other legislation to see if such a definition might exist in earlier Acts and I have not been able to find it. There is a definition in the Defence Act, 1954, of "service custody", but service custody is not precisely the same thing as the kind of military custody that is envisaged in this Bill. If it were the same thing the Minister's remedy would be simple. He should then provide in the Bill that military custody for the purpose of this Bill should be the same as service custody as defined in the Defence Act, 1954. I know that the expression is used in the Offences Against the State Act, but I do not know of any definition. It is essential that there should be a definition. If the Minister considers this he will, on reflection, agree with me.

In a rather general way he referred to the legal difficulties and problems which arise out of the present situation and which reinforce his argument as to why his Bill should be accepted and passed quickly into law. From the Minister's own point of view it would be a pity if he made too much haste and overlooked a matter which could raise considerable legal problems for him. One of the suggestion I want to make to the Minister is that there should be inserted in this Bill a definition of "military custody" and I propose to move an amendment to cover that on Committee Stage.

It is hardly necessary to point out that the consideration which Senators on both sides of the House have been able to give to this Bill has necessarily been short and curtailed. To accommodate both the House and the Minister, I have already drafted a number of the amendments which I have in mind so as to enable them to be circulated. I should not like to see the Minister's approach to amendments which are put down in these circumstances to be one of fencing with words. The amendments are put down for the purpose of pinpointing the particular principle or change which I think is involved.

Before we start the Committee Stage I would like to say that if there is any drafting difficulty which makes any of the amendments which I propose unacceptable I am prepared to take any form of amendment to cover the point which may be drafted by the Minister or any of his officials.

The second point I want to refer to is one which has been discussed in the Dáil. That is in relation to subsection (3) of section 2. The structure of this Bill is that the Minister can direct the transfer of prisoners to military custody only provided certain pre-conditions are fulfilled. The case the Minister has made, and which I accept, is that because of the trouble in Mountjoy Prison on the 18th-19th May an accommodation problem has arisen and become acute. I accept that as a good reason for introducing this Bill, but the Minister seems to go far beyond that in section 2 (3). The conditions prescribed in subsection (3) have pre-conditions to the Minister making an order directing the transfer to military custody: first, that the Minister is of opinion that prison accommodation or prison staff is insufficient to provide secure and reasonable conditions of custody and, second, in relation to persons for whom accommodation is required is insufficient to provide such conditions without serious detriment to the maintenance in prisons of the normal arrangements for the rehabilitative treatment of prisoners.

I want to direct the attention of the House to the fact that this goes far beyond grounds of pressure on accommodation or lack of accommodation. The Minister, under the section as framed, is entitled to direct transfer to military custody because of an insufficiency of prison staff. Were it not for the amendment which was accepted in the Dáil limiting the duration of this Bill to a date in 1974, I would regard this question of insufficiency of staff as being a major impediment to ready acceptance of this Bill.

We are entitled to consider this in theory as well as in practice. In theory, under the section as it stands, it would be open to the Minister deliberately to let the prison staff run down and when it had run down to what need not necessarily be even a point of immediate danger, because it is dependent on the Minister's opinion, the Minister could then, on the grounds of insufficiency of staff, direct transfer to military custody, even though quite adequate and sufficient accommodation under the civil authority and under the officers of the prison service would be available. The Minister's power to direct transfer to military custody is quite justifiable in present circumstances on the basis of lack of accommodation but the Minister has not made a convincing case that it is justifiable on the basis of insufficiency of prison staff.

There are circumstances when it would be appropriate for the Minister to seek these powers because of an inadequacy of prison staff, but the kind of circumstances which come to my mind would be those in which a certain emergency arises which causes a shortage of prison staff. I am not quite sure how officers of the prison services stand in relation to strikes. If they are entitled to strike for better conditions and use the strike weapon, the Minister might find himself in a position of extreme difficulty and he might then say: "An exceptional situation has arisen and I propose to operate subsection (3) of section 2 of this Act because of the insufficiency of prison staff which has arisen." I would accept that case if the Minister is prepared to amend subsection (3) so as to provide that insufficiency of prison staff will be good grounds for transferring to military custody only if the insufficiency arises suddenly and in exceptional or emergency circumstances. As matter stand, there are grounds for objection to the Bill in this connection.

Another point which I propose to develop more fully on Committee Stage relates to subsection (6) of section 2. I welcome the provision the Minister has made which is a safeguard, that is, the requirement to lay before each House of the Oireachtas a statement specifying the name and the offences where a person has been directed to be transferred to military custody. Here also there is one vital omission which this House should remedy. There is no obligation to state to which place of detention the person has been removed.

We all know the difficulties and the volume of complaint there have been elsewhere in this country where people were not able to ascertain the whereabouts of those in custody. I do not wish to see that situation arising here. I accept without any qualification that the Minister and the Government have no intention of being secretive about this, that they have no intention of allowing a situation to develop under the operation of this Bill where an outcry can be created because information is not given about the whereabouts of a person in custody. To put it at its lowest level, in his own political interests no Minister would like to have that situation develop, so I am assuming for the purpose of my remarks that it is not the intention of the Minister to have people transferred to military custody in secrecy as regards the location of the place of detention.

If I am right in that, it does not weaken the Minister's Bill in any respect to require that the place of detention should also be among the particulars to be given under subsection (9) of section 2. I am referring to the Bill as originally drafted. What was formerly subsection (8) has been amended in the Dáil and it is now subsection (9). Subsection (9) of section 2 requires the Minister for Defence to make regulations in relation to the places and the manner generally in which persons in military custody are held.

There is one thing it does not do, and which I feel should be done in this Bill, and the Minister may reply to this point by saying that it will be covered in the regulations: it does not make any provision to ensure that the person to be placed in charge in places of detention will be a commissioned Army officer of reasonably senior rank. I would have expected a Bill of this sort to provide that the person in charge of the place of detention would be an officer holding a rank of, say, not less than commandant. I recognise that the Minister may tell me that it is the intention to make a provision of that sort in the regulations. If such is the intention, I would suggest that it will not weaken the Minister's Bill in any way to provide in subsection (9) that the regulations which are to be made by the Minister for Defence will provide that the person in charge of the place of detention will be an Army officer holding the rank of commandant or higher.

The Seanad would be falling down on their job if they did not ask the Minister to make a provision of that sort. I have never in this House refused to accept an assurance given by a Minister. I would be prepared to accept as quite bona fide any assurance which the Minister might give the House in connection with that matter. I, and many of my colleagues, have pointed out that we are not legislating for a particular Minister for Justice or Defence——

Or a particular Government.

——or, for that matter, a particular Government. It may be that another Minister would have different views and so far as the law is concerned neither the courts nor the Minister need have regard so far as legal effect is concerned to any statement of intention made by the Minister in this or the other House of the Oireachtas. On the face of this Bill as it stands, it would be open to the Minister for Defence to provide that a corporal in the military police should be the person in charge of the place of detention. I do not believe that is what this House wants.

At the outset I said that one of the considerations that must be brought to bear on this Bill is that the rights of citizens who have fallen foul of the law and who are coming under the direction of the Minister to be transferred to military custody under this Bill should be protected. We have a duty to protect those rights. It follows that in relation to this particular matter we have a duty to ensure that the person in charge of the place of detention will be a person who would be regarded by this House, the Dáil, the public and the prisoners, as a responsible person. We should seek to ensure as far as possible—and I believe this is the intention of the Bill—that the person who will be in charge will be equivalent in status to the governor of a civil prison. I regard this as of considerable importance. I hope the Minister will endeavour to meet that point of view when we come to Committee Stage.

I was glad to hear the Minister mention that he hoped to have the Bill signed tomorrow because to some extent that is an indication that the Minister is prepared, if necessary, to go back to the Dáil to amend the Bill tomorrow. I was going to make this offer, and I still make it to the Minister, that if the Minister feels that the points which have been expressed here by me, and which will be expressed by other Senators, merit consideration and warrant amendment of the Bill, as I believe some of them do, as far as my party are concerned we would co-operate to try to ensure that the Minister can, if necessary, go back to the Dáil this evening for the purpose of having the Seanad amendments considered by them.

Some of the more detailed matters to which I have referred will require to be considered in some depth in Committee. As far as the principle behind the Bill is concerned, owing to the emergency which has arisen, to the necessity to make the provision which is being made here, and in the desire to ensure that there will be proper functioning of our administration of justice, I agree with the Bill in principle and I would not propose opposing the Second Reading.

We are being asked to deal with what is, by any standards, a very messy situation. At the same time it is to be regretted that we have what I feel is a very messy piece of legislation to deal with it. At this point I should like to express my agreement with several of the points which have been made very ably by Senator O'Higgins. I am disturbed about, and seek further information from the Minister on, a number of points which have not been adequately dealt with yet in either House of the Oireachtas. Two things have, for one reason or another, been "fodged" or obscured in the general discussion on this Bill. The first is the exact extent of the accommodation problem to which the riots in Mountjoy have given rise. The second is the exact nature of the legal consequences of allowing the present state of affairs to continue for any great length of time. Also—perhaps this should be added as a third category—the legal consequences of the Bill itself.

On the question of accommodation, the Minister has told us of a number of transfers which have been made. Unfortunately, we have not got any overall figures. It would be interesting to hear from him how many people were in Mountjoy prior to this outbreak and how many people will remain in Mountjoy at present. If, as seems likely, that by far the greater number of prisoners who were in Mountjoy prior to the outbreak are still there, this must put a question mark against the necessity of creating alternative places of detention—that is unless the Minister intends to transfer to military custody more persons than are at present confined there. There is quite possibly an innocent explanation for this, and perhaps a simple one. Are we to understand that there is no extra accommodation available in the prison in Limerick? This was not mentioned by the Minister. Is it more difficult to provide extra accommodation in all the prisons, apart from Limerick? Would the provision of such accommodation be such a very lengthy and risky process as the one on which the Government are going to embark?

I will turn briefly to the legal aspects of the matter. The Minister said—and I heard speakers from other parties agree with him—that one of the reasons for the urgency with which he is dealing with the Bill is that there might be persons who could obtain an order of habeas corpus and in this way find themselves, at very short notice, released from custody. People in this category are people whom the Minister described as “very dangerous” or “potentially very dangerous”.

I would like more information from the Minister as to why he thinks such a course of action might prove successful. It seems that there are two possible reasons why such a course of action might prove successful. In the first place, it might be held by a court that the prisoners concerned were not under effective control of the people to whose effective control they had been consigned. Secondly, it might be held that an action for habeas corpus might lie because they were not being held in custody in the place to which they had originally being confined.

The Minister told us that the prisoners are nominally under the control of two prison officers in the Curragh, or wherever they are at the moment. Any action for habeas corpus which the Minister has in mind will probably fall under the second heading, on the grounds that the prisoners concerned are not in the place to which they were committed by the court. Accepting this is true and that these are the grounds of urgency could I ask the Minister whether, even subsequent to the passing of this Bill in its present form, persons who are detained not only in the Curragh under the effective control of the military, but in prisons other than the prisons to which they were admitted, might not take an action against the Minister or the military authorities or the prison service for illegal detention? If there is a good a chance as the Minister thinks there is that an action of habeas corpus will succeed at the moment, it seems to me to be a logical consequence that an action for illegal detention would succeed even after the passing of this Bill.

Regarding the question of military custody, I should like to agree with Senator O'Higgins when he pointed out that this phrase is not defined in the Bill. I would not be quite as willing as Senator O'Higgins to provide a definition for the benefit of the Minister. The whole question of military custody is one of which the legal implications have been, perhaps, obscured because the whole matter has been dealt with so hurriedly. The outlines do not seem to be at all clear despite the Minister's obviously genuine attempts in relation to section 2 to lay down that there should be as little difference as possible between military custody and normal prison practice. If we transfer people to military custody, we are transferring people out of the system in which the vast majority of us live into what is, to all intents and purposes, an enclave in that system. It is also an enclave which has a very long tradition of establishing its own law and order, and perhaps a rather rougher kind of justice than is habitual in the system at large.

I was reminded very forcibly of this when the Minister spoke of the discussions which were going on between him and the military authorities. At the moment he said the custody operations in the Curragh were technically under the control of two prison officers. The Minister quoted to us the opinion of the military authority that it is impossible to run a prison on a half-and-half basis. I am very sorry that the Minister should have accepted this statement from military authorities as a statement of fact. If the Minister has the confidence in his prison authorities which I believe he has, I believe that in acceding to what is almost a demand by the military authorities for total control of the prison establishments for which they are effectively responsible, he is making an unnecessary concession. Instead of doing this he should have been extending and strengthening and providing some sort of framework for the present ad hoc arrangement.

At present the Minister says there are two prison officers in the Curragh. To my mind, it should be possible to work with even only one prison officer in the Curragh, as long as the Minister was, as it were, a court of appeal who was effectively able to take decisions on the welfare of the prisoners there, and as long as the principle of civil control of prisoners was not conceded in the way in which the Minister has been asked to concede at the moment. If the Minister had come to us with a different Bill—one which attempted to tackle this rather more difficult legal problem—he would have had a great deal more support and a great deal less hesitation than he has at the moment. The Minister denies that he is introducing internment by any door, back, side or front. It seems to me that the distinction is becoming less and less with every speech that is made on this Bill. In fact, this impression was strengthened when I heard the Minister's statement this morning that the Government were actively considering the imposition of special courts.

To my mind, the special courts plus military custody for persons, at the Minister's discretion, differ only from internment per se in that the review principle which is built into our internment system here would be advanced to take place prior to committal and not at intervals after committal. That is the only difference in reality whatever about the difference in law between internment and the extension of the system that the Minister is currently proposing to us. I use the word “extension” advisedly because he used the statement about special courts in direct relation to a discussion on this Bill.

I have put down one amendment to this Bill which I will discuss in more detail on Committee Stage. I found it a very difficult Bill to amend. This may be partly due to my lack of legal knowledge. It is also quite obviously due to the fact that it is a very hastily and, inevitably, badly constructed Bill.

Taking the Minister's plea for the need for extra accommodation, it is absolutely essential to limit the category of persons who can be sent to this kind of accommodation. The Minister's interest in rehabilitation is well known. Indeed, I must give him credit for it and accept his very real goodwill in this direction, however much I may from time to time find myself agreeing with other criticism at the lack of imagination in what was in many other ways a well-intentioned basic policy. It seems that the kind of system envisaged in this Bill works directly against all the principles of rehabilitation to which the Minister has pledged himself, and in which I believe him to be sincere. The amendment which I am going to offer to the Minister is to exclude from the provisions of the Bill persons who have been sentenced. This is an amendment with which I am not entirely happy but the reasons for it can be readily understood. If we pass the Bill in its present form there seems to be every likelihood that the types of establishment under military control which are envisaged in the Bill will become places where a concentration of particularly dangerous or difficult prisoners might be held. This is not written into the wording of the Bill per se, but one would have to be blind not to see this as a very possible development of it.

I question quite seriously whether this is an adequate way of expressing our responsibilities either to society as a whole or to the prisoners concerned. Indeed, if there is anything which the riots of last Thursday would have told us it is that the undue concentration of difficult prisoners in one particular institution is a Grade A recipe for trouble. What seems to be under discussion here is the kind of institution which would exemplify this to the fullest possible extent. I do not believe that such an institution would have a remotely rehabilitative effect on the men concerned. Consequently, I do not believe it would be an adequate way of expressing our responsibility to them. In a sense, the greater the crimes which the people have committed the greater are our responsibilities in both directions, towards them to rehabilitate them and towards society to protect them from people who have not been in any way rehabilitated.

This present kind of solution which has been put forward today places all the stress on our responsibilities towards society in a very negative way and virtually none at all on the need to rehabilitate the people concerned. There are always violent people in society, especially perhaps in a society like ours in which violence, if not exactly canonised, certainly has been dealt with in a very superficial and limited way for very many years. There will always be people who will say that society is violent and that this justifies the use of violence against society. This is a very, very dangerous thesis for anybody to adopt. I certainly do not adopt it wholesale and the number of situations in which violence can be justified against the repressed and violent society is very much less than is generally supposed and certainly very much less than is usually claimed.

I would point out to the House that these men who claim that society is violent and claim, therefore, the right to use violence against society are inherently ambiguous in their attitude. They will say that society and its law are violent, but they will also use the law which they claim is violent in an attempt to better their own position and to have themselves released from custody of one kind or another in an attempt to obtain freedom to carry on whatever activities they were engaged in. This is a situation with which people who are keen on the rule of law will always have to contend. There will always be people who will use the law only when it suits them. But the response of society to people like that should not be to tighten up the law unnecessarily. It should not be to give these men the impression that we are playing their game and that we will respond to their violence by even greater violence, and therefore give them an even greater justification for carrying on whatever violence they may have embarked on.

I believe basically that what we should be about, even if necessary at risk, is the removal of all forms of violence from our society. I see this Bill which is inaccurate and muddled, however well-meaning it may be, as an attempt to meet the particular situation, and as a further and regrettable extension of that violence.

I realise that the Minister has what seems to me to be sound and good reasons for wanting to get this legislation through quickly. I want to remind the House that we have had an unfortunate experience here in the last year or so of consensus legislation going through in a hurry. On that occasion we were told that we were dealing with a Bill on which all parties were in agreement and which was merely intended to facilitate the Dáil in conducting its function of supervising public accounts. The result was that many Members of both Houses scarcely bothered even to read the Bill and we all felt foolish when it was subsequently found in some respects invalid by the Supreme Court.

I am anxious, not only on my own behalf—although I suppose I have a special status to defend here for personal reasons—that the House would not fall into this trap this time. If there is anything in this Bill—even though we on this side understand the reason for it and do not go along at all with the long-term explanations for violence which might be offered from some quarters—which might be objectionable from a constitutional point of view we should be very careful about passing it in a matter of hours.

I realise very well that prisoners now in military custody are not lawfully in that custody and that they could in theory and I suppose in practice, have themselves released within a matter of hours by applying to the High Court for relief under article 40 section 4, in other words, the habeas corpus procedure.

I do not feel ashamed about cooperating to that extent with the Government in blocking that possibility because I recognise that the Government had on its hands in the events in Mountjoy the other evening an emergency, which, I suppose, could not have been reasonably foreseen. Whether the degree to which violence and subversion has become a normal feature of our life, and in which fellow-travelling with violence has become a normal feature of people's conversation and opinion, is something which the Government can equally be excused for is a separate question. I recognise that the riot the other evening in Mountjoy is something which perhaps no one could have foreseen.

I recognise that the prisoners had to be accommodated somewhere; that they could not have been simply let loose. I am prepared, therefore, to co-operate with a reasonable measure to legalise the position into which the Government has been forced.

Before I deal with the provisions which the Bill actually contains I want to say that the message which the prisoners or some of them shouted from the roof of the building, as it was in the course of being reduced to rubble, must make an impression on anybody interested in the ordinary rule of law. The message shouted down by some of these prisoners was that they had been remanded in custody for periods up to four months. Some of these prisoners did not apply for bail and when it was offered to them they refused. The duty of the State, whether or not bail is offered or refused, is to bring prisoners to trial quickly.

Without boring the House with that chestnut about how justice must not only be done but must be seen to be done, it is important that nobody should be given even the shadow of an excuse for suspecting, let alone making it a plausible point of view, that the State is putting him on the long finger, that the State is keeping him in cold storage, or that the State is in some way withdrawing him from the ordinary legal process for reasons of its own.

If this State faced a genuine emergency—and in some respects that may be the case even now—I would not oppose proper measures to deal with the bullies, of whom there are so many among us. But if that is not the case and for so long as the State is operating the ordinary processes of the law, let them be operated properly because these are the laws on which you and I rely on for our protection just as much as any gunman or bully. The State lies under exactly the same duty in regard to these gunman and bullies as it does towards you and me. If they are on remand in custody they must be tried as quickly as the State can possibly arrange. If there is the slightest substance in the allegation that they are being kept unfairly in custody, unfairly on a prolonged remand, whether or not they have been offered bail or have been refused bail, then the State has a case to answer. If that is true—I do not assert that it is true, because I obviously do not know what is going on in the minds of the police or the State solicitor's department—the State must shoulder some of the blame here.

I am not making a positive assertion about it because I do not have the necessary information. Certainly, four months remand in custody, whether or not bail was offered or refused, seems to me, prima facie, a rather long period for a fairly simple offence. I do not want to make trouble with the Government in this respect, because although by their neglect and inertia in the past they have contributed to the development of this situation, nonetheless they have to handle it now. However an offence which will be made out by simply proving that somebody had a pistol in his pocket or in the boot of his car cannot require such lengthy investigations and collection of evidence as to justify very long remands. Therefore although, as Senator O'Higgins has indicated, we are not opposing this Bill in principle, anything produced in these circumstances necessarily causes, on this side of the House, a certain measure of suspicion.

There are no two ways about law. This party in particular has often, depending on one's point of view, either been praised or held up to odium as being the party of law and order. I would regard that, in normal circumstances, as being a compliment. We are that and have never been otherwise. In that respect we are distinguished from perhaps all other parties in the State. Law and order is an indivisible thing, a seamless web. It must be applied equally. While I think that the State would be well justified in taking stern measures to put down bullies and murderers, for so long as the law is there as it is it must be equally applied. The same rules about remand and an early trial which would apply to you or me if we were charged with an offence tomorrow ought to apply to men who perhaps have a different disposition in regard to political questions. If we do not wish the same law to apply to them, if we wish some other law to apply to them, then it must be done openly and with the consent of the people's representatives. The Dáil and the Seanad must be told that we propose to give special treatment—I use the term as a euphemism for especially tough treatment—to people of a political complexion.

I am not necessarily against this if we are dealing with subversives who do not stop at anything in order to put their point of view across, who are afraid of nothing except the ballot box. Until this is done openly we must stick to the rules. The suspicion has been raised and nothing the Minister for Justice has said over the last few days—and I have followed his statements quite closely—has entirely dispelled my fear that some of the people on remand in that prison may have been kept there as it were in cold storage. That may be the only way of dealing with these men, but, if so, let us do it above board. If it is going to be internment let us call it that. To put a wedge of this kind into the legal system by using an institution like remand or the refusal of bail and the delaying of the trial in order to keep somebody under lock and key without trying him is wrong. It is an insult to the legal system; it is demoralising in the long run, and although no one in this House will be in any doubt as to my feelings about the IRA or their fellow-travellers, for so long as the ordinary law is there is must be equally applied.

I do not take this Bill to be what some of its opponents have called it. I do not think this is internment by the back door. If I did I would say so openly and frankly. I am prepared to accept that this Bill is intended to meet a difficulty which unforeseen situations created. I do not want to lend any weight which my remarks might have to the suggestion that what we have here is internment by the back door and I do not see how it could be honestly interpreted as that. Having said this, I want to make it clear that the State or the Government if it persists, as perhaps it must, in pushing this Bill through in a hurry, is laying itself open to a difficulty. I have received this final form of the Bill as passed by Dáil Éireann only an hour ago like the other Senators and I have not had time to look at it carefully. I observe that the Minister has given way to points raised in the Dáil by my side, and in regard to the conditions under which people will be held in military custody has tightened up the phraseology of the section in the Bill as originally introduced.

Originally the Minister was required merely

to have regard to the desirability of ensuring that the conditions of custody of such persons are not less favourable to them than if they were subject to the ordinary prison rules.

Now under the Bill in the form which the Dáil has passed, he is obliged to

make such regulations as will correspond to the rules for the time being in force under the Prisons Act.

This is quite an important point. A Minister or any executive authority is not entitled to vary the order of a court by making it more severe or by selecting for himself a particular mode of punishment which a judge has not decided on. That has been held by the Supreme Court in a couple of cases over the last ten years.

I notice in the earlier part of this section that the Minister is entitled to specify the persons who are to be transferred to military custody in a condition of overcrowding or a condition of inadequacy of staff. If the Minister leaves himself in the position where it can be represented that, on the one hand, military custody is a tougher regime than the ordinary prison sentence and that, on the other hand, he is selecting, for the purpose of sitting on them, specified prisoners for despatch to the Curragh there to undergo their imprisonment in military custody, he is doing something which I believe to be constitutionally infirm because he is adding a dimension to the punishment which he has no authority to add. He is adding something to the punishment which only a judge could add to it under our Constitution. That is why it is not just desirable but absolutely essential that the Minister makes certain that no distinction in point of severity can be drawn between this military custody and civilian custody in an ordinary prison.

Although I have not been in politics as long as Senator O'Higgins I am less optimistic than he. I am more disillusioned with the Government's approach to amendments and I do not propose to move any. I know perfectly well they would not be accepted because the Government do not propose to go back to the Dáil with this Bill, but I want to warn the Minister, through the Parliamentary Secretary, or through his officials, that he is taking a grave risk upon himself if he adopts the policy of specifying particular prisoners and subjecting them to what might be called a tough regime in the Curragh as distinct from the civilian regime of Mountjoy or Portlaoise.

If he does so, the whole Act will be struck down because—I should make it clear that I am speaking here of convicted prisoners—if a prisoner is convicted by a court and sentenced by a judge, that judge will be pronouncing a sentence of imprisonment having regard to the ordinary conditions of imprisonment which exist at the particular time. The judge has not got at the back of his mind the possibility that an executive person such as a Minister will have power in the future to take that man out of prison in Mountjoy, Portlaoise, Cork or Limerick and send him down to a much tougher place in the Curragh. That is the reason why it is absolutely vital to make sure —I do not know how the Minister will do it because I realise that soldiers are not trained as prison officers and that a military regime in the middle of a barracks, as the Minister explained, is not easy to reconcile with civilian methods of doing things, unless he designates the place as a prison—that a convicted prisoner is not, by ministerial order or direction, subjected to anything more severe than what the judge had in mind when he pronounced sentence. If the Minister makes the mistake of doing such a thing I want to be on record as warning him that his operations are likely to be invalidated.

There are one or two other points which I do not intend to make the subject of amendments but to which I should like the Minister to have regard even if they are not written into the Bill when it becomes an Act. In the existing subsection (6) of section 2 certain details in regard to prisoners committed to military custody have to be laid before each House of the Oireachtas as soon as may be. Senator O'Higgins very rightly pointed out—I am surprised that this was not adverted to in the Dáil—that a most important detail which does not figure in this subsection is the location of the place of detention. I think it is vital that the location of the prisoner, for reasons of common humanity—I do not care what kind of scoundrel he may be, his family have certain rights and he has certain rights in regard to them— should be known to his family and his legal advisers.

It is important that the details which the Minister is required to make public in this way should contain the location of the military establishment in which the man is confined and should also contain the name of the officer in charge of the establishment. I do not intend to move an amendment to have such a provision contained in the section because I know the Government would not accept it and I would only be holding the House up unnecessarily, but there is nothing to stop the Minister from doing that purely as a prudential measure. He is not required by the subsection to do so, but there is nothing to stop him from doing it. I would strongly urge that it be done.

I have not had time to think this out but I have doubts about the consititutional validity of a provision which would, in fact, enable a Minister to make a prisoner "disappear" without trace. I hope that will not be misunderstood as meaning the assassination of him or anything like that, but I have doubts about the validity of any legislative provision which would enable a Minister to leave a prisoner in a situation where no one knew where he was. The reason for these doubts is not just an instinctive one but that there have been decisions of our courts in the last five or six years which have established something which is not spelled out in the Constitution but which is, nevertheless, very real: the citizen's right of access to the courts to have his rights determined.

A prisoner whose whereabouts is not known by his family or by his legal advisers cannot have access to the courts. That is clear. Again I want to warn the Minister, through his officials, that the details included in subsection (6) of section 2, even though not required by the Bill in the form it will have when passed into law, should contain the name of the establishment in which the man is being kept and the name of the officer in command of it.

I should have added to what I said about the question of the Minister imposing by his own order a tougher regime on a prisoner who has been sentenced to ordinary imprisonment that the Minister will not get out of that difficulty, in my opinion, by simply applying the powers of section 3 and nominating the Curragh as a prison, because an ordinary judge, a district justice, a Circuit Court judge, a judge presiding over the Central Criminal Court, who sentences someone to imprisonment is doing that against the background of the kind of prison regime to which we are accustomed. I hope that a phrase such as this will not be picked up and misinterpreted or used as a source of alarm; if this Minister or any other Minister were to turn the Curragh into a sort of Devil's Island—I want to make it clear that I am not accusing him of any such intention, nor have I any reason to think that he might do such a thing—merely to nominate it as a prison under the powers referred to in section 3 it would not save it from constitutional invalidity in the case of a prisoner convicted and sentenced to ordinary imprisonment. I believe that a sentence of that kind must be understood, and will be understood, by the Supreme Court as intended to be read against the background of the ordinary system of imprisonment we have and not against the background of any more harsh regime. I should like to add a couple of very short remarks. One of them is in connection with subsection (5) of section 2 which states:

The Minister—

(a) may, at any time, direct the transfer to a prison of a person in military custody pursuant to this section, and

(b) shall direct the transfer to a prison of all persons in military custody as aforesaid if he is of opinion that circumstances warranting their being retained in military custody no longer obtain,

I think in most legislation of this kind a direction from the Minister is expressed to be in writing and is required to be in writing. I have no doubt that in the ordinary case it would be in writing. If this Bill had been drafted with more time—I am not blaming the Department; I know they were up against a time problem—a direction of this kind would be in writing. As the Bill stands, it seems to be possible for the Minister to make such a direction by means of a telephone call. That is undesirable because it means that the Minister's directions do not remain on any record and it makes things difficult for a prisoner who is trying to challenge the legality of the steps by which he has arrived in a certain place to present even a prima facie case.

I am afraid one of the last two things I have to say is politically contentious and I hope that the other side will bear with it patiently. The Minister said that the nation was grateful to the prison officers who showed a devotion to duty. I think he said something equivalent to "beyond the line of duty". He referred to one prison officer who was rather badly hurt—he did not refer to him here but in public recently—but nevertheless came back to duty the same evening. Of course the nation is grateful to these prison officers, as it is grateful to all the people who have to do the nation's dirty work. It is dirty work. It is grateful to the Garda and to the Army who have to do these jobs. But its gratitude is not so marked towards the political leadership which has been so inert as to render such conditions almost unavoidable but certainly very probable.

I have expressed this view in the House before and I should like to put it on the record once again that if the threat posed by subversion had been taken seriously when it first appeared— the day Nelson Pillar was blown up in 1966—we would not be faced with this situation now. If, instead of the demolition of Nelson Pillar having been taken as a kind of joke then—as it was, with a Fianna Fáil Lord Mayor saying, after a perfunctory expression of regret, that he never liked the damn thing anyway—the law had been properly applied, regularly applied, fairly applied and consistently applied from that day to this, we would not now be legislating overnight because of a riot of these dimensions. The nation is grateful to the people who have to do the dirty work. The men in uniform get these perfunctory expressions of thanks; they are sincere, no doubt, but they are perfunctory because they are very often forgotten when it is not convenient to remember them.

Of course we are grateful to these officers. They make things comfortable for us. We are able to sit in our padded armchairs as a result of their exertions. But a Government that allows political conditions to deteriorate through political fears of their own, through fears of losing votes, through inertia or incompetence, have no right to try and wash their hands by saying: "We are grateful to the fellows who have tidied up the mess for us." They must carry part of the blame. I accept unreservedly that the Government, or perhaps I should say that part of the Fianna Fáil Party that are now in government, are genuine in their desire to end bloodshed and violence, and I have said it before. However, I cannot acquit them of incompetence and of vacillation in the way in which they have dealt with this threat in the years gone by. What we are dealing with now, although in itself an unforeseen emergency, is only a sympton of what anybody in his senses could have seen was coming five years ago, when men with sour visages and wearing black berets were going around this country firing shots at gravesides and getting away with it, when people went out to address assemblages of the gardaí and urged them not to do their duty and got away with it.

In those days it might have been possible to do something about making the people see that we regard this Parliament as being the only authority in the country with the right to decide on issues of peace and war. The Government, for one reason or another— perhaps it did not suit them, because they could not rely on their own supporters—did not do that job. We have hammered at them long enough and I do not want to weary Senators on the far side who are solidly in favour of humanity and decency in the way of doing business. Nevertheless, that blame cannot be moved from the place where it lies.

The last point I want to mention refers to a letter which everyone in both Houses received today from the prison chaplain in Mountjoy. I will not read it. Everyone has seen it for himself, but I should like to cite one sentence. This Catholic chaplain says that it surprises no one in the prison service that riots occur. All understand that prison is such a place as to make rioting an ever-present possibility. This is not strictly relevant to the trouble we had three or four nights ago nor to this Bill. If the House will be patient for a few minutes, I should like to say that everything which that priest has set out in his letter was said by me— perhaps not so well and certainly not with the background of so much experience—when we were debating the Prisons Bill last year. At that time I said that the population of the prisons in this country very largely consisted of underprivileged people or of people who were illiterate and therefore unemployable, who were very largely of less than average intelligence and for whom imprisonment was merely society's gesture of despair.

I do not claim any credit for having said these things. Anybody who has ever spent five minutes considering the point knows it. The reason why I mention it now is not to waste the time of the House or to pat myself on the back for having adverted to this one-and-a-half years ago. It is to urge the Department of Justice again to intercede with their colleagues in the Department of Education to have special funds made available for the study of criminality and of penal methods in this country. In the universities we are in a situation where we have to try to accommodate this very serious social need within our ordinary budget. We have to fight for a lectureship or a Chair in Criminology, for instance, as hard as we would have to fight for a lectureship in, say, Assyriology. I believe that the State should take a specific interest in these dimensions of academic life which have serious social importance. It should not be necessary to fight for money through the ordinary academic channels, when we are trying to do what we can to ease this particular side of the problem. I know that I have strayed somewhat from the subject. I hope that the Minister, who is standing in for his colleague, and the officials behind him, will listen to that and, perhaps, repeat it in the quarter in which it may do most good.

I am sorry that I cannot share even the limited enthusiasm that Senator O'Higgins and Senator Kelly have for this Bill. In spite of what Senator Kelly has said, to me this Bill is an attempt to have the best of both worlds. On the one hand, we had the Taoiseach and the Minister for Justice emphasising that we would have no internment and that we would have no military courts. Now there will be prisoners in military detention and we can still boast that there are no military courts and no internment. I want to emphasise that I am as concerned as any other Member of the Houses of the Oireachtas for the preservation of the democratic institutions of this State. But I am at a loss to know what this Bill will do for their preservation. Perhaps there are wider powers in the Bill than are apparent to me.

I should like to know if only political prisoners will be transferred to the Curragh. Will ordinary prisoners, such as housebreakers, be sent to the Curragh? If it is intended for political prisoners only, then it is military detention for political offences.

All prisoners?

Read the Bill

I have read the Bill. Are all prisoners——

A mixumgatherum. There is no selectivity.

There is no definition in the code for political prisoners.

I know that you do not now recognise that there are political prisoners. At one time they were recognised as political prisoners.

Do not introduce a red herring.

This is not a red herring. If the riot had not occurred, would we have had this Bill? If it had occurred and there had been no political prisoners in Mountjoy, would we have a measure of this kind? We would then be sending only ordinary law-breakers to the Curragh under military detention.

This is dealing with law-breakers.

I accept what the Minister for Transport and Power has said, that this relates to all prisoners. Without doubting him, I shall believe it when I see it. If there were no political prisoners in Mountjoy we would not be dealing with this Bill now, or is the Minister placing all the blame on the political prisoners in Mountjoy for the riot?

I suggest the Senator address himself to the Bill.

We have only had the Bill for a few minutes. The Bill has been doctored so much since it was produced yesterday that it is difficult to reconcile this with the Bill we received in our post this morning. I am sure the Minister will forgive me for not being as au fait with the Bill as he is.

Surely the Minister will allow Senator Fitzgerald to make his speech.

As I was saying when the Minister tried to keep me on the right track in connection with this Bill, I want to know if the Minister and the Government are placing all the blame on the political prisoners for the extent of the riot that we had in Mountjoy last week. If he is, then again there is a question of doubt. In the letter referred to by Senator Kelly, which all Members of the Oireachtas received from the Catholic chaplain in Mountjoy, the first sentence states:

There has been a serious riot in Mountjoy, spearheaded by men on remand who had a purpose but deriving much of its strength and fury from ordinary prisoners who had no particular purpose in mind who rioted because that is their nature and that is the nature of prison.

He does not place all the blame for the extent of the damage in Mountjoy on the political prisoners.

Section 2 of this Bill says that the section will continue in operation for two years. This suggests to me that the damage to Mountjoy will be repaired in two years. If the damage to the wing of Mountjoy prison is as serious as we are led to believe by the Minister, then I have my doubts, and I am sure that the Minister has his doubts also, that it can be repaired in two years unless it is proposed just to try to replace it as it existed.

If you read through this letter, which we received from the chaplain, it is obvious that many improvements are needed in Mountjoy if we are not to have riots such as this in the future. Leaving that aside, is it not imperative that this damaged section of Mountjoy will have to be demolished and a completely new and remodelled building erected in its place? If that is so, how is it proposed to have all this done by the 31st May, 1974? If Mountjoy Prison is not ready for prisoners to be returned there in two years are we to have another enabling Bill of this kind coming along to extend the period perhaps until 1976? It appears to me that it will take until 1976 or 1980 to repair Mountjoy. We can look forward to prisoners in the Curragh for a long time to come. I do not agree that any prisoner on remand should be handed over to military custody. For that reason I cannot support this Bill.

I had not intended speaking on this Bill but the last speech prompted me to do so. It is time we defined what a political prisoner is, or what a political offence is. If someone commits murder is the murderer to have one degree of guilt if he is a politician and another degree of guilt if he is a layman? What defines a person as a politician? Is he a politician only and is it a political murder or a political crime only if he refuses to acknowledge the political society as it exists?

Can any group of people, no matter how large or how small, call themselves a political society capable of taking law into their own hands? If so, what is the difference between a political offence and the offences committed by the Mafia in America? Are we really to get to this stage? Surely crime is crime, murder is murder, arson is arson, no matter by whom it is committed. If society as it exists feels that there should be special circumstances and exemptions for crime committed because of certain methods, why not provide for it in the legislation?

We should get it clearly into our minds that not only is the person who pulls the trigger responsible for murder, not only is the person who ignites the bomb responsible for maiming but also every person who lends him moral support. People who are maimed or killed owe their loss to every one of us who is not prepared as a member of society to condemn those actions.

We have all this sort of "softly, softly" by people who want the best of both worlds. They are prepared to take advantage of society and the laws of society as they exist. At the same time they are prepared to tear down society despite the laws of society. At the moment this Bill is absolutely essential in the unfortunate circumstances that exist. What has happened could possibly have been foreseen, as Senator O'Higgins said but, having been foreseen, very little could have been done about it unless our prisons were to be transformed into strong security prisons. This would mean that the ordinary prisoner would be under terms of detention and restraints which normally were not intended for him. This would mean that prisons, which normally should be for rehabilitation, could not be used for that purpose. In those circumstances, if the Minister had foreseen that and brought in a measure such as this some months ago, then all our liberal members of society would have thrown it out. Because it was not brought in a number of relatively innocent people must suffer. They must forfeit their courses of rehabilitation and their courses of treatment.

Senator Horgan suggested that the prison in the Curragh should be under the dual control of military and civilians. That would be a tragedy as nobody could ultimately be held responsible by parliamentary procedure or otherwise if the prisoners were not properly treated. It is essential that prisoners who were removed to the Curragh must be kept there under terms not less unfavourable than normally applies to prison and it is essential in their own interests that there must be somebody who can be held responsible if they are not.

If an injury or an injustice is done to a prisoner by the governor in Mountjoy or the governor in Limerick, through his warders or himself the prisoner cannot sue the governor. He must sue the Minister. Therefore, the prisoners in the Curragh cannot be under the control of the Minister for Justice and the Minister for Defence. There must be one Minister who can be held responsible. It is most important that they should be under the single control of one Minister. Obviously this could not be the Minister for Justice in the Curragh among military personnel in a military barracks.

Senator Kelly referred to the fact that prisoners are on remand for four months and if there was no justification this seems improper. I agree with him. My experience of criminal law is as follows.

A man found with a loaded pistol is entitled to be tried by a jury. In the ordinary course of events the Circuit Court sits four times a year in the locality in which he is found. He comes before the District Court first and informations have to be taken, et cetera. Those of us who have experience of criminal law find that if the court sits once a month, this takes a month, six weeks, or two months depending on your luck. Your client may have been arrested immediately after the last sitting of the District Court and so you must wait, as when your client comes forward for trial there is not sufficient evidence collected by the gardaí at that stage and you must wait for the second month. Then you may find you have just missed the Circuit Court.

These people may say: "We are specially bothered in this regard, we are here longer." In the ordinary course of events many of these people, who now complain, could come before the Circuit Court in the county or area in which they are arrested or charged but if they do so there is a demonstration outside the court.

Under our system of criminal law a jury must be unanimous in their verdict. The local 12 jurors in the country area, who are well known to everybody, in face of this demonstration, are at risk until the case is tried in the local Circuit Court. Therefore, most of these cases have to be remanded to Dublin. The reason for this is the actions and conduct of the supporters of these people who are complaining that they are on remand too long. The Circuit Court passes locally because they are remanded to Dublin and they must wait another few months. I, as a lawyer with experience of these things, know that the absolute minimum in which an accused can get for trial in the Circuit Criminal Court in Dublin is four months and the average is approximately six months. I wish to clear the air on that point. That has been my experience in defending ordinary criminal offences, and they have no cause for complaint when bail is available to them.

It is right and proper in the unfortunate circumstances of this case that there is no alternative. I would have liked if these people had not spearheaded the riot, that they had not broken up the prison, and that they had left to the other 500 or 600 prisoners their right to rehabilitation. If you spearhead something in circumstances such as that, human nature being as it is, you are bound to get a following of the more aggressive types of mentality. You are bound to do a vast amount of damage. My sympathy is with the unfortunate people who were serving their sentence to society, or paying their debt to society and being rehabilitated and for whom that opportunity no longer exists.

I should like to support the Minister in the introduction of this Bill. He has made a reasonable case on the necessity for it. We all listened to the reports on the riot as it developed at Mountjoy and at the end we were relieved at the way in which the forces contained the riot.

The proposals made by the Government are the only practical ones in this case. While I agree it would be right to see a definition of "military custody" my information is that generally conditions under military custody are far more liberal than under the ordinary system. Admittedly military custody enables a greater guarantee of the effectiveness of provisions against any escape. The ultimate guarantee here is that the Dáil can, at any time, move a motion to have this set aside and the Government have limited the operation of the Bill, when it becomes an Act, to two years.

I would not like the limitation as it stands in any way to cause an unduly hasty job to be done in the rebuilding of the prison facilities at Mountjoy. In rebuilding, the Government would be wise to take proper heed of the letter circulated to all Senators and Deputies by the Catholic chaplain who pointed out that the facilities there are not good. We hope that in the rebuilt Mountjoy, the opportunity will be availed of to provide a prison that stresses in greater measure the rehabilitation procedures and opportunities for the ordinary prisoners, many of whom, as the chaplain pointed out, came from very deprived conditions and are in prison largely due to their unfortunate background history.

Senator Nash has done us all a favour by his very straight words on this matter of the label "political prisoner" being bandied around. A prisoner cannot simply be made a political prisoner by the fact of not recognising the court. As Senator Nash has put it, murder or arson are the same heinous crimes whatever the circumstances in which they are committed.

The Minister should be encouraged by the resolute stand taken by all parties in this House on the question of the enforcement of law and order. We will hope in the months ahead to see an improvement in the general situation throughout the country and that the Government will have every confidence in tackling any problem that should arise by referring back to the referendum results because that was a strong emphatic vote for law and order in this country. I am not suggesting that those who voted "no" were in any way endorsing the opposite but the very smallness of that vote showed that the overwhelming majority of the people are strongly behind the Government in wanting democratic processes to proceed.

When it comes to democratic processes we can say that we have a record unique in the world that will never be surpassed in having an unfortunate civil war. The ballot box was allowed ten years later to transfer powers from the victors to the vanquished. Looking back on the results, as an independent observer, I feel the verdict of the people was justified in that it enabled both parties to play their part in the building of the new Ireland. Again, speaking independently, I feel both parties played an indispensable role in that development. In my view the contribution made by Mr. W. T. Cosgrave was matched by that made by the President, Mr. de Valera, in ensuring there was a combined approach to the development of the country. It was a democratic process and the fact that this process was supported by the Army and the Garda enabled that transfer to take place. Surely that is a record that will never be surpassed in the modern world. It is something that shows that the people are very staunch in the democatic processes and are not likely to be diverted from this view.

I am very glad of the constructive attitude taken by the Members of the Seanad towards this Bill and which was similar to the attitude of the great majority of the Members of the Dáil. Fundamentally, this is a Prisons Bill and the purpose of it is to ensure that where the Minister for Justice of the day is dissatisfied in regard to the inadequacy of accommodation or personnel a transfer from a prison situation can be effected into military custody and that it be deemed in military custody to be within the civil prison jurisdiction. That is the principle enshrined in section 2.

There is no more and no less to the Bill than that. I wish to emphasise this because a lot of remarks have been made that there was something sinister in the Bill. This remark was made by Senator Fitzgerald and alleged by a small minority of the Labour Party in the Dáil who voted against the Bill. This does not arise. It is simply to deal with a basic necessity concerned with the security of the State where accommodation in Mountjoy Prison is inadequate, where there may be a personnel inadequacy and where prisoners on remand or convicted under the ordinary law of our land cannot be housed or supervised properly.

We are trying to deal with this problem here and to give under section 2, which is the basic section, adequate powers to the Minister for Justice to ensure that places of accommodation called prisons, whether under military or other custody, are made available to ensure that the security of the State is safeguarded and ensuring that accommodation and personnel are available to supervise people who are prisoners of the State. These are people who have done a disservice to the State in the sense of impinging on the law of the land, who have come before the courts which have put them on remand, or where the courts through the ordinary legal process have ordained a conviction. It is important that we get a sense of reality in this matter and stop going into mirageland about this. What we are concerned about here is the security of the State and that we, as a legislature, give the Executive of the day, who are the Government, the power to ensure that people who break the law or who are regarded as breaking the law and are on remand pending trial, are properly accommodated and supervised and that personnel are available to deal with the problem.

On Second Reading I believe that is all that needs to be said. I understand suggestions have been made about amendments. In the Dáil the Minister accepted some realistic amendments, in particular a basic one which ensured that there would be a time limitation to the 31st May, 1974. In the Dáil the Fine Gael Party pressed that this should be done to prevent any misunderstanding or in case anything should be read into the matter that might be of a sinister nature. The Minister accepted this amendment. That provides a safeguard against any mischievous people who seek to read into this Bill something which is not intended—that pending the reconstruction of Mountjoy Prison as a proper prison with the full rehabilitative provisions in it which are not there at the moment, possibly out of evil comes good. The building itself needed reconstruction and we hope this will be done before the end of May, 1974. That amendment, which I regard as an important amendment from the point of view of reassuring people who think there might be something other than is intended in the Bill, was accepted. It ensures that the Bill may cease to operate before that by way of order. That is a matter for the Minister. The important matter is that the Government are charged with the responsibility of reconstructing a major prison in a proper way and to make sure that full provision is made for the rehabilitation and social aspects of prisoners. After all that, we can get on with the job of dealing properly with the security of this State and not have any mixed-up ideas about it. I welcome the overwhelming support that was given in the Dáil to this measure and the overwhelming support that it has got here in the Seanad also.

Question put and agreed to.
Agreed to take remaining Stages today.