Seanad Éireann debate -
Saturday, 2 Dec 1972

Vol. 73 No. 14

Offences against the State (Amendment) Bill, 1972: Second Stage.

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

Minister for Justice (Mr. O'Malley)

Having regard to last night's explosions in the city of Dublin I have no doubt that this House will decide to pass this Bill, and quickly. It would be regrettable if any Members of the House were to regard the Bill as a drastic measure which had to be accepted by them only because the events of last night had, so to speak, left them no choice. It would be unfortunate, as well as being quite wrong, if Members felt that, in agreeing to pass the Bill quickly under pressure of events they were agreeing to sacrifice any fundamental legal principles. I want to assure the House that that is not so. It is not so despite assertions to the contrary by people who should know better and despite similar assertions by people who know better but who choose to say otherwise.

I do not propose to delay the House by dealing in detail with various assertions which have been made as to the contents of this Bill. However, I should like the House to know that I owe it as a duty to answer certain people who in the last few days have used their positions in what at best was an irresponsible effort to mislead the Irish people. The Irish people have a right to expect that they will get, if not good sense, at least something approximating to factual accuracy from the quarters concerned.

At the moment I will confine myself to repeating to this House the basic facts which I gave to the other House in introducing this Bill. In doing so, I emphasise that I am not giving assurances on the plea that my words carry any weight with judges in courts, but I am stating unchallengeable facts. For instance, if I say to this House, as I do, that evidence is evidence and not proof, I am stating a fact, not giving an assurance. I now say to this House, as I said to the Dáil, first, that the Bill does not transfer to a defendant the onus of proving that he is innocent or the onus of proving anything. Secondly, it does not mean that when a senior Garda officer testifies to his belief that a person is a member of an illegal organisation, the person must be convicted unless he proves his innocence. The words of the Bill are "shall be evidence". It should be unnecessary to say that this means exactly what it says. Under the law as it stands, the chief superintendent's belief is not evidence in a court of law. The existing law admits as evidence the opinion of what is called an expert witness. Without the present provision the chief superintendent would not be allowed to testify as to his belief. The subsection provides that his belief shall be evidence, that is to say, that it will be admitted by the court as evidence. As with anything else which is evidence in court, it is for the court to weight.

My third point is that the restrictions in section 4, which apply to reports in the communications media as well as to other forms of comment which are intended to interfere with the course of justice, are not something new and radical. They correspond as closely as legal draftsmen could make them with the existing common law rules governing comments on cases before the courts. We are hearing much of this recently propounded claim that the rights of free speech entitle one to try to influence the courts as to how they will deal with a particular case. This is in practice what is involved. This House needs no reminding that this claim which is now being made is essentially a claim that justice should be administered at street corners where slogans replace law and demagogues replace the judiciary.

The times we are living in are sufficiently dangerous to justify me in asking Members of the House to make, and to continue to make, their voices heard in public on this vital issue. Some have already expressed their views in the past, in speech and in writing, on this and on other related issues of fundamental importance, including one or two—I do not think I should or need to mention names— with whom I have had political exchanges on other matters. I am glad to have this opportunity of acknowledging this.

The final point I wish to make relates to a meeting that is intended or likely to interfere with the course of justice contrary to section 4. Under that section a casual or innocent bystander is not, in fact, committing an offence. This is so because of the basic rule in criminal law that the necessary ingredient in a criminal offence is guilty intent or mens rea as it is called. There are, of course, exceptions in particular statutes but that does not affect what we are concerned with here. What is more important, this guilty intent is one of the matters that must be proved by the prosecution as part of their duty to prove the case beyond reasonable doubt.

I may be asked why this is not written into the Bill. The answer is that it is both clearly unnecessary and highly undesirable to do so. It is unnecessary because the rule is so basic and so well known. It is highly undesirable to do so for two related reasons. The first reason is that it is impossible to write all the basic rules into the section. For instance, we would have to say also that a child of seven years could not be guilty and that duress was a defence. The second reason is that if this kind of provision were written into one section of one Bill it would immediately raise a question as to the meaning of the hundreds of other provisions throughout the corpus of the criminal law. The question would be raised that if it is here in this section and not in that other one it must not be applicable to that other one.

The House is well aware of the urgent need for the Bill. This is why I have concentrated on the objective of showing to Members that the Bill is not only necessary but that it is a perfectly reasonable Bill that does not make, and can be clearly seen not to make, any one of the radical changes which have been alleged over the past few days.

An Cathaoirleach

An amendment to the Second Reading has been received and has been circulated to Members. It is in the names of Senator Robinson and Senator Horgan.

Mrs. Robinson

With your permission, a Chathaoirleach, I should like to move the following amendment:

To delete all words after "That" and substitute "Seanad Éireann declines to give a Second Reading to the Bill on the ground that it is an inappropriate procedure to deal with urgent legislation having regard to the terms of Article 24 of the Constitution.

In moving this amendment I should like to make it clear that I move it because I value the safeguards of parliamentary democracy in this country. I value the importance of the Seanad as a second Chamber. In doing so I look to the Constitution itself and, in particular, to Article 24 which has built-in safeguards for the type of crisis we are in today.

The Dáil passed all Stages of this Bill at 4 o'clock this morning. Members of the Seanad received telegrams this morning requesting them to meet at 3 o'clock this Saturday afternoon. The reason given by you, a Chathaoirleach, was to consider the Offences against the State (Amendment) Bill. The Leader of the House wishes to bring a motion before us asking for the urgent signature to this Bill of the President under Article 25 of the Constitution. Article 25 provides that in normal circumstances the President will not sign a Bill before the fifth day or later than the seventh day after it has been passed by both Houses but there is a provision in Article 25.2.2º which reads:

At the request of the Government, with the prior concurrence of Seanad Éireann, the President may sign any Bill the subject of such request on a date which is earlier than the fifth day after such date as aforesaid.

This is what the Leader of the House proposes to do. He intends to ask the Seanad to agree to the President signing this Bill tonight so that it will be law as of tonight.

I wish to make the point very firmly, that we are using the wrong procedure to do this and that we have not got the very safeguards set out in the Constitution. Article 24 provides for the situation in which it is wished to abridge the time for the Seanad to consider legislation. We find ourselves in the situation today where we were called together urgently on a Saturday afternoon and where the Leader of the House has a motion before us asking for the urgent signature of the President so that this Bill can become law. Article 24.1 of the Constitution provides:

If and whenever on the passage by Dáil Éireann of any Bill, other than a Bill expressed to be a Bill containing a proposal to amend the Constitution, the Taoiseach certifies by messages in writing addressed to the President and to the Chairman of each House of the Oireachtas that, in the opinion of the Government, the Bill is urgent and immediately necessary for the preservation of the public peace and security, or by reason of the existence of a public emergency, whether domestic or international, the time for the consideration of such Bill by Seanad Éireann shall, if Dáil Éireann so resolves and if the President, after consultation with the Council of State, concurs, be abridged to such period as shall be specified in the resolution.

In other words, the Taoiseach can specify in this resolution what time the Seanad will have to consider this matter.

The value of this procedure, and the reason why I have moved this amendment to encourage the Seanad to ask for this procedure to be used is that there is a safeguard for emergency legislation. The safeguard is the appropriate one that it is has not had the parliamentary review which it ought to have had and, therefore, it ought only to last for a certain period. It is provided in Article 24.3 that:

When a Bill the time for the consideration of which by Seanad Éireann has been abridged under this Article becomes law it shall remain in force for a period of ninety days from the date of its enactment and no longer unless, before the expiration of that period, both Houses shall have agreed that such law shall remain in force for a longer period and the longer period so agreed upon shall have been specified in resolutions passed by both Houses.

The significance of that is clear. If we are to have emergency legislation it means that the Houses of Parliament cannot look as carefully at the legislation as they would otherwise do. It means that in the Seanad this afternoon we cannot look at this Bill as carefully as we should. The many arguments and statements made on this Bill two days ago are as true now as they were then. No matter how quickly we filter it through this House today those arguments will still remain true.

I should like to address myself particularly to Senators on the other side of the House. It is appropriate for this House to say that its position under the Constitution is as a second legislative reviewing body. It can certainly accept the Taoiseach's right to state that the matter is one of urgency. It can accept emergency legislation, but it ought to see to it that the constitutional safeguards are there and that this emergency legislation should not last more than 90 days unless there is a resolution by both Houses to continue it. In that period we would have had time to think about it, there would not be the panic emergency climate of last night and the Bill would not appear in the same way to have been steamrolled through both Houses of the Oireachtas.

It is vital that the Seanad stress the importance of putting that time limit on the Bill before us. At present it appears that the Government want the best of both worlds: they want to steamroll this Bill through but they do not want to use the emergency procedure and the emergency safeguards. This House should assert itself and should require the certification that this is emergency legislation, that it is being regarded as such and that we return here after the weekend and consider it. It will not take long to implement the procedure under Article 24. The Taoiseach merely has to specify in writing to the President and the Chairman of the Dáil and Seanad and then a resolution passed by the Dáil, that the time for this House to consider it may be abridged. It is then an Article 24 Bill: it then has a time limit of 90 days unless renewed.

I do not want to take up any more time on this motion though I hope I shall have the support of Senators on both sides for the proposal that we do not give the Bill a Second Reading and that we ask that it be brought back to us under the emergency provisions.

Tomás Ó Maoláin

A little knowledge is a dangerous thing.

Mr. Horgan

I should like very briefly to support this amendment and to underline the same basic point that Senator Robinson made. The question facing us in this situation is a very simple one. Is this emergency legislation or is it not? If it is emergency legislation, as Senator Robinson said, the onus is on the Government to take all the steps appropriate under Article 24 of the Constitution, and to accept the 90-day time limit on the legislation under that section of the Constitution. If it is not emergency legislation we are under no obligation to dispose of it today. Indeed, I would say that not only are we not under any obligation to dispose of it today but we have an absolute responsibility to do the opposite. The Minister has already said that his draftsmen had been working on this Bill for a substantial length of time. I think he said that they had been working on it for at least a year. We are now expected to dispose of it in less than 24 hours, as part of a total period of consideration, which is less than four days. Is the Oireachtas being asked to dispose in four days of legislation that has taken over 12 months to prepare? If the Government persist in this and refuse to accept the amendment, they will lay themselves open to the charge of engaging in instant-government which, as we all know, is something less than the real thing.

Mr. O'Higgins

I think there is much force in the arguments that have been advanced by Senator Robinson and Senator Horgan. However, as I see it there is a position where under the particular Article of the Constitution which has been referred to, it would be necessary for certain procedures to be gone through. It would be necessary to have the certificate from the Taoiseach. It would also be necessary for the President to consult with the Council of State. So far as I am concerned, my attitude with regard to the recent amendment which has been proposed would have to depend largely on the view taken by the Minister and the Government as to the question of urgency in relation to this matter. I presume the Minister will give us the benefit of his views on that when he is concluding.

As regards the Bill, I want to say quite clearly and bluntly that I detest it and I detest every section of it. However, I abhor much more the violence and I loathe much more the subversion against which the provisions of this Bill are directed. Therefore, while I certainly intend to deal critically with the Bill, as far as I go and as far as the Fine Gael Party in this House go, we are not going to obstruct its passage through the House. I want to make it clear also that I do rely on the assurance given by the Minister in his opening speech that it is not intended that this House should—these were not his words but I think this was the effect of them— merely give scant consideration to the provisions of this Bill. There are a number of matters in the Bill which will require very much more detailed explanation and argument than the Minister has given in his opening statement. Possibly he will have to discuss those in more detail on Committee Stage.

I am enough of a realist to know that this meeting of the Seanad is merely the formal geneflection by the Government to their constitutional obligation to bring this Bill before the Seanad. I am also sufficiently experienced in politics to know that it is extremely unlikely that the Minister has the slightest intention of accepting any Seanad amendment to this proposal. Yet, to my mind, this Bill should be amended. The fact that I am convinced that the Minister has not the slightest intention of accepting any Seanad amendment does not relieve Senators from their duty of endeavouring at least to obtain certain categorical assurances from the Minister regarding the operation of the Bill.

I make no secret whatever of the fact that the Bill posed particular problems for my party. On the one hand, the Fine Gael Party—the longest-established constitutional party in the State—has always recognised and accepted and insisted on the recognition and maintenance of lawful authority and the rule of law justly administered. There are certain cardinal and fundamental principles which have always been part and parcel of the Fine Gael heritage: the support and sustenance of legitimate authority; the right of the people to govern in this parliamentary democracy of ours through the duly and lawfully elected representatives of the people; that there should be only one army and one peace force answerable to the lawful Parliament of this country, and acting under it, and that the institutions of the State should be upheld, preserved and respected.

Those have always been and will always be cardinal and fundamental principles of the Fine Gael policy. Those principles are part of the tradition of the Fine Gael Party, and part of the tradition and history from which this party derive their strength, their courage and their integrity. For us those principles are precious and are summed up in the phrase, which possibly some cynics nowadays may regard as a cliché, that we are prepared to put the nation before the party. We take pride in the knowledge, which, perhaps, is forgotten by some and unknown to others, that it was this Fine Gael Party, or their predecessors, that established this State and established the institutions of this State. It was the past leaders of this party, from whom we can still draw inspiration today who established with sure hands and on a firm foundation after 700 years of foreign occupation, an Irish Army, an Irish Police force, an Irish civil service and an Irish judiciary and who did that in the face of a challenge from within, which no infant state should have had to face.

Those facts are down in history and will not be contradicted. Side by side with that great tradition of the Fine Gael Party, this party in its policy and actions and in its entire outlook has been steeped in the tradition of respect for individual liberty, for the rights of the ordinary people, for the right of free speech and free assembly and the right of the ordinary Irishman as an individual, not to be subject either deliberately or inadvertently through bad legislation, to victimisation or discrimination.

This party, even in opposition, have vindicated the right of the people and the political parties to free speech. When a party such as ours, representing these twin traditions, is presented with a Bill of this kind which contains inherent conflict between the claims of State security on the one hand and the liberty and rights of individuals on the other, obviously we are faced with the difficulty of trying to ensure that the claims of the State and the rights of the individual as expressed in this Bill will not be mutually exclusive.

For that reason we sought to have this Bill amended to take it out of the category of police state legislation, and, while recognising the call of State security and the need to uphold the authority of the State and its institutions, we also wanted and still want to protect and safeguard the rights and liberties of individuals. We have time and again, urged the Fianna Fáil Government to take action against subversives and illegal organisations. The Minister made an oblique reference to this in his opening speech. If this Bill is necessary now it was also necessary one, two or three years ago. Why was it not introduced before now?

Any Senator reading this Bill will appreciate that only about 20 minutes' work is required for the composition of a Bill like this. What were the enormous difficulties which faced the Minister or the Government? Why after three years of violence or near-violence in this country is this Bill only being introduced now if it was regarded as urgently necessary? When time was the currency of national safety in this country, Fianna Fáil wasted time. I do not fault the present Minister for that. However, he may irk some of my political colleagues. I say sincerely that since his appointment the present Minister has shown a great degree of activity and determination in his approach to the problems facing this State in so far as his Department is concerned.

In their outlook and approach the Fianna Fáil Party have apparently felt themselves to be too much prisoners of their own past. I will quote a few passages from a book written by a former member of the Fianna Fáil Government and Party following the last general election in this country— and this is what I mean when I say that I am afraid Fianna Fáil have felt themselves to be too much prisoners of their own past in their approach to and outlook on the matters which the Minister is now endeavouring to deal with.

Page 54 of Mr. Kevin Boland's book states:

It was in the Parliamentary Party that the real sordidness and cynicism was manifested. Prior to May, 1970, there was no shortage of militants; almost everybody seemed to be actively engaged in building up the defensive capacity of the beleagured 6-county nationalists. They were all being spectacularly successful and were in a position to assure anybody prepared to listen that next time it would be different because of their efforts.

It goes on to say:

Eoin O'Duffy persuaded the majority of his men to join the Free State Army by assuring them the intention was to "put a rifle into the hands of every Catholic in the Six Counties". This did not happen, but if one were to believe the Fianna Fáil TDs and Senators there could have been few Catholics in the Six Counties without, at least, a shotgun or point .22 rifle by early 1970. One particularly bellicose Munster Deputy boasted that this was not his first time, he had been running guns into Belfast since 1956. Needless to say in May, 1970, he changed his tune with the rest and became the stoutest supporter of the restoration of law and order policy.

These are the words of a former Fianna Fáil Minister, who for 12 months after the last general election sat around the same Cabinet table with the present Taoiseach. He referred to deputations coming down from Northern Ireland and said— this is the important point I would like to make at this stage—

Initially, at any rate, there were no IRA elements in these deputations. In fact, the Fianna Fáil Deputies were saying: "Where are the bloody IRA?". One would think that they had been cosseted and nurtured by Fianna Fáil just for such an eventuality and now they had let their sponsors down.

If that can be written by one who was formerly a pillar of the Fianna Fáil Party, one of the senior, experienced, Government Ministers of Fianna Fáil, am I exaggerating when I state that Fianna Fáil felt themselves to be prisoners of their own past in dealing with the kind of situation which faces them now?

My party never had any doubt or ambiguity in seeing the situation for what it was and the necessity for action being taken by the Government to preserve peace and national security in this part of the country. But we still must take into account the question of individual freedom and the rights of the individual in relation to legislation of this sort.

There is no Member sitting on the Fine Gael benches in any House of this Parliament who wants to give any encouragement or solace to either branch of the IRA or to any other unlawful organisation. We never did and never will, please God. That does not acquit us of our responsibility to analyse this legislation to see if it is necessary, to see what it contains, to see if what it seeks to achieve can be achieved without necessarily taking powers which could turn this little State, if mis-used, into a police State. I wish to examine what is contained in this Bill and I should like the House to consider the extent to which it is necessary that these things should be in this Bill.

Section 2 of the Bill sets out: that where a member of the Garda Síochána has reasonable grounds for believing that an offence which is, for the time being, a scheduled offence under Part V of the 1939 Act, is being or was committed at any place, and if he has reasonable grounds for believing that any person whom he finds at or near the place at the time of the commission of the offence or soon afterwards knows, or knew at that time, of its commission and he informs that person of his belief, then the guard may demand of that person his name and address and an account of his recent movements. If the person fails or refuses to give that information or gives false or misleading information he incurs penalties under this Bill when it becomes an Act. He can be fined up to £200 or, at the discretion of the court, he can go to gaol for 12 months or he can be both fined and imprisoned.

The Minister has that section solemnly written into this Bill and one assumes from that, that it is necessary that this power should be taken by the Administration. I wish seriously to question this. I know an answer to the query I wish to put to the Minister has been given by the Taoiseach in the other House. It seems to me that the powers which the Minister seeks in that section are already largely, if not entirely, at his disposal through the medium of section 52 of the Offences Against the State Act, 1939, which sets out that whenever a person is detained in custody under the provisions of Part IV of that Act any member of the garda may demand from such person at any time while he is so detained a full account of that person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or subsection of that Act, or any scheduled offence.

The explanation given as to why the Minister is taking the powers enshrined in section 2 of this Bill rather than continuing to rely on the powers contained in section 52 of the 1939 Act was that section 52 would be open to challenge before the Court of Human Rights. If that is so, surely the same thing will apply to section 2 of this Bill. I have no hesitation in accepting the explanation given by the Taoiseach but I should like to ask the Minister if that explanation is correct, will not exactly the same situation apply with regard to section 2 of the Bill now before us?

Regarding section 3 of this Bill I have no objection to a court being entitled to draw a reasonable inference from a person's general conduct and surrounding circumstances, that that person was a member of an unlawful organisation. But the power contained in subsection (1) (a) of this Bill is the only new power which was not available before that the Minister really needs in order to give evidence to the court, of membership of an illegal organisation.

So long as it is left with the court to make deductions from the facts and draw inferences from them, so long as the court is bound only to act on reasonable inferences I have no objection to that subsection. If the Minister tells us the power sought in paragraph (b) (1) (3) is required I am prepared to give it to him, though it is not a power I like.

Paragraph (b) of subsection (1) of section 3 defines "conduct". It states:

....."conduct" includes omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.

This seems very far-fetched but I am prepared to take the view that if a person is prepared to allow himself to be paraded in the columns of the newspapers, on our television screens or elsewhere as a member or an officer of an illegal organisation and if he is not prepared to deny this and is prepared to allow it to be inferred by the court from his refusal to deny, I am prepared to allow the court to draw the inference that he is a member of an illegal organisation. On the other hand we are entitled to look for definite and categorical assurances from the Minister that this portion of that section will not be used mischievously or unreasonably. It could be used unreasonably. I could publish a report in the morning that the Minister for Justice is only masquerading as such, that in fact he is an important member of an illegal organisation. It would be completely false. But if I published it and if the Minister did not deny it, his conduct in not denying it could be regarded by the court as conduct from which they could draw a reasonable inference that the Minister was a member of an unlawful organisation. That is what I would regard as mischievous misuse of this subsection.

There may be many circumstances in which reckless charges of one sort or another will be bandied about. Is every politician to be put in the position that he must engage some kind of press clipping service so as to keep his eye on everything said about him in any of the provincial papers to make sure that if such an allegation, as is contemplated by this subsection, is made, he will be in a position to deny it or find himself in jeopardy under this Bill? I do not think that is the intention of the Minister and the Government. The Minister should give us an assurance that this subsection will be used with common sense and reason.

With regard to subsection (2) of section 3 of the Bill virtually all sections of the people, and I daresay many even in the Fianna Fáil Party, reacted strongly against this subsection. It sets out:

Where an officer of the Garda Síochána, not below the rank of chief superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

The Minister defends this extraordinary subsection by saying that evidence is evidence and not proof. No one can contradict the Minister's statement, but that does not go the whole way. Is it not a fact that the courts are obliged to come to their decisions on the evidence before them? This subsection is inserted for the purpose of providing evidence where no other evidence is available. If there is no denial of that evidence for any reason, that will be the only evidence before the court and the court is obliged to act on it. It is evidence and when it is acted on in that way, it can be accepted as proof sufficient to lead to a conviction. The Minister has recognised, I think, the defect in this subsection by reason of the amendment which he introduced in the Dáil, providing that the subsection shall have a life only whenever Part V of the Act of 1939 is in operation.

What about section 4 which deals with statements, meetings, processions, etc. constituting interference with the course of justice? I am very surprised to learn, if indeed I am meant to learn from this Bill, that there is not already authority vested in the State to prevent interference with the course of justice. I have not had an opportunity to do any great research in connection with this Bill, as it was introduced in the Dáil only yesterday and in the Seanad today, but I did have a glance at the Conspiracy and Protection of Property Act, 1875. This Act was enacted 75 years ago and so far as I am aware, is still in operation. Section 7 sets out:

Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing wrongfully or without legal authority (1) uses violence to or intimidates such other person or his wife or children, or injures his property; or (2) persistently follows such other person about from place to place; or....

I am skipping a bit here because it is not relevant to what I have in mind——

... (4) watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or....

If any of that is done, a person is liable under this Act to a penalty of £20, which I agree is very small financially in present circumstances. As an alternative, he is liable to imprisonment for three months. I am entitled to say that there are powers under the statute laws known to us today which could be used to prevent the situation which is contemplated in section 4.

The Minister referred specifically to subsection (2) of section 4. This subsection is one of the provisions which worry people in relation to this Bill. It sets out:

A person who makes any statement, or who organises, holds or takes part in any meeting, procession or demonstration, that is unlawful under this section shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment;

(b) on conviction on indictment, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding five years or to both such fine and such imprisonment.

People are worried about that subsection because a person who is innocent may find himself involved as defendant on the ground that he took part in an unlawful meeting or procession simply by reason of being there as an onlooker.

There are two points I should like to make on this subsection. The Minister pointed out that it does not apply to innocent people because for the commission of this offence, it is necessary to have mens rea or a guilty intent. My first point is that this only arises when the person is in the dock before the court, when the prosecution fail to establish mens rea. It does not protect the innocent bystander from being brought into the dock and having to clear himself in court. This is the first point to remember in the context of human freedom and liberty as affected by this section.

My second point I should like to put in the form of a query to the Minister. I do not set myself up as an authority, particularly on questions of criminal law, and if the Minister assures me that for the commission of an offence under this subsection, guilty intent or mens rea is necessary, I accept it without further argument. I should like to inquire if it is not true that in certain cases statutory offences are created where the question of mens rea is not relevant. Is it not correct that that is the situation under section 21 of the Offences Against the State Act of 1939 which provides that it shall not be lawful for any person to be a member of an unlawful organisation? If a person is a member of an unlawful organisation, that in itself, under section 21 of the Offences Against the State Act of 1939, is an offence and one punishable under the Act.

I am reinforced in that belief because it is established—I am not sure whether it is actually in section 21 or not—that a good defence for a person who is charged with membership of an illegal organisation is that he did not know that the organisation was unlawful or that he left it as soon as possible after he became aware of the fact. What this provision means is that a person who had not got mens rea or guilty intent will, by being able to prove this point, be able to provide a good defence to a charge of membership of an unlawful organisation.

If it was necessary to make that provision for the statutory offence created by section 21 of the Act of 1939, I want to put it to the Minister is it not equally necessary now to provide a statutory defence to the statutory offence being created by section 4 of this Bill? These are matters which possibly can be explored further in Committee but it is necessary to mention them at this stage.

I do not want it suggested by anyone that the Fine Gael attitude in examining this legislation critically is in any way unreasonable or reckless. We want the State, whether it be in the form of this Government or any other Government, to have whatever powers are necessary to safeguard its institutions and to deal with subversive or illegal organisations. I should like to know from the Minister what organisations in this country have been the subject of suppression orders declaring them to be illegal organisations? We do not want to give any blessing to any legislation of a repressive nature which is unnecessary and which would be open to abuse, even by inadvertence, so far as the ordinary individuals in the State are concerned.

There is a duty to look on this Bill from both points of view. The urgency which the Minister has described, and which was justified, motivated the Fine Gael Party in the Dáil to withdraw the opposition which they had mounted against this measure. They allowed the Minister to have the legislation in the Dáil yesterday. That is my attitude also in this House, but we are entitled to get the kind of clarification and the definite assurances which I have requested from the Minister.

Mr. J. Fitzgerald

I support the amendment. The Labour Party's attitude to this Bill is so well known that I do not need to delay the House in spelling out our reasons for opposing it. But in opposing the Bill, I wish it to be clearly understood that we in the Labour Party deplore and condemn violence, no matter from what source it may come. Our opposition is based on the belief that this legislation is not necessary to deal with subversives or illegal organisations. There is no government in Western Europe with the powers this Government have, if they had the courage or political will to implement the Acts already on the Statute Book.

Normally one could speak at length on this Bill. The purpose of speaking on any Bill is in the hope that the Minister, having listened to one's views, would accept them or accept an amendment if it is put forward. It was clearly demonstrated in the Dáil yesterday that this Government do not intend to accept any amendments. Their intention seemed to be to ram it through the Oireachtas. We have evidence of that here again today when the Members of the Seanad were summoned, by telephone and telegram, to meet on a Saturday afternoon at 3 o'clock for the purpose of passing this Bill.

There is very little point in hoping that one could get this Bill amended in any shape or form. The Government intend to ram it through because, at this point of time, it is to Fianna Fáil's political advantage. Like Senator O'Higgins, I detest every section of this Bill but I would go further than Senator O'Higgins and the Fine Gael Party. I, and my colleagues, intend to vote against the passage of this Bill.

Mr. Nash

I listened with interest to Senator O'Higgins and with a certain amount of dismay that a lawyer of his ability and capacity could make some of the statements he made. Before dealing with the legal aspects of the Bill, I should like to deal with some of his political statements.

Mr. Norton

On a point of order, is it allowed to take photographs in the House? One person in the gallery is taking photographs. Could something be done about it?

An Cathaoirleach

It is not allowed to take photographs in the House. The Chair did not see the occurrence but it is not in order, according to Standing Orders.

Mr. Nash

I shall deal first with some of Senator O'Higgins's political statements in which he said, among other things, that Fianna Fáil is the victim and the prisoner of its own political past. Unfortunately, we are all to a certain extent the victims of our past but not of our immediate past.

The cult of violence in this country had been falling into desuetude. It has no longer the great name it had when the people in the North decided that Ulster would fight and Ulster would be right and when they decided "Not an inch". The British Government allowed a mutiny to take place in the Curragh and made no effort to punish the members of their military personnel who were involved in that mutiny. Then the cult of violence was renewed in Ireland. Unfortunately, it still continues on both sides of the Border of this unfortunate country where it is constantly preached, from childhood upwards, dulce et decorum est pro patria mori.

In my young days, as a child going to the national school, I remember portions of one of the poems in the schoolbooks of those days which spoke about "the music of the rifle, so clear and sweet and strong". This is the type of cult in which the people on both sides of the Border have been rared from childhood. I pity more than I blame some of the young people in Ireland today who are involving themselves in violence.

Two nights ago in Molesworth Street I listened to members of Parliament—some of them members of Her Majesty's Parliament in London, some of them former members of the Stormont House of Commons—addressing the crowd. I listened to the emotional diatribe they preached to the unfortunate, ill-educated young people among their listeners. Each and every Irishman, of whatever political party, is equally guilty with those youths, if he does not raise his voice in logic, in reason and in common sense to persuade people that, if differences have to be settled, they should be settled in accordance with reason, in accordance with logic and in accordance with common sense.

The cult of the rifle has become so firmly established in our national folklore that, at this stage, it requires the voice, the reason and the persuasion of every sensible person to put an end to it. It is nutured in childhood. When a cult of force is nurtured, people soon become educated in sadism. I say this of all persons involved in all extreme groups who today wish to upset the institutions of the State by force of arms. We had an example of it on the news this morning. An unfortunate man, whose name was not published and whose identity was not known, lost his life. Those people who took his life were not prepared merely to take his life but tortured him in advance of taking his life. To them, sadism is a pleasure. It began when violence was inculcated in them in their youth.

Senator O'Higgins has put around himself the mantle of peace and goodwill for himself and his party. I wish to quote to the House a statement which was made, not by any member of the Fianna Fáil Party but by a prominent member of his party, who was formerly a Member of this House, at an oration over a person who fought for this country, who was glad to fight for his country and who made no compliment of doing so, but who made no boast of doing so. At the end of the ceremony, when the rifles were fired over the grave, this member of the Fine Gael Party was called upon to make his oration. I quote from that oration:

The rifle has spoken and said everything that should be said over the grave of a patriot.

How can we, in common sense, expect our youth——

Mr. McDonald

What is the quotation from?

Mr. Nash

I am not permitted to quote the names of people who are not in the House. I am endeavouring to abide by the rules of the House, so I should be glad if the Senator would permit me to continue.

Mr. McDonald

I thought quotations——

Mr. Nash

How can we expect young people, who have the idealism of youth, the imagination of youth, who lack the experience which only the years can bring, to behave in any better way when this cult was established and nurtured by people who should know better? There is no point whatever in condemning the gun, which is the instrument of violence, if we condone what the gun does. So much for the political utterances of Senator O'Higgins. I shall now deal with his desire to have peace under legislation as it formerly existed. He stated that section 2 of this Bill was not necessary because the State could have taken advantage of section 52 of the Offences Against the State Act, 1939.

I shall paraphrase what section 2 of this Bill provides, but shall quote it if necessary. What it provides is as follows: if a scheduled offence under Part V of the 1939 Act has been committed—there are only certain offences under that Act: violence under arms, malicious damage to property, some of the extreme offences —and if a garda happens to be nearby, and if he sees some person who was near the place when the offence was committed, he can demand from that person his name and address. Everybody will agree that that is not a very serious infringement of a person's rights. He can tell the person that he has reasonable grounds for believing that the person whom he finds near the place at the time of the commission knew something about its commission. Having demanded his name and address, he can ask him for an account of his recent movements. During this time the person from whom he makes his demand and his request is at complete liberty and is under no restraint, he is under no fright nor is he being incarcerated in a police station.

What Senator O'Higgins states should have been done instead was to rely on section 52. Section 52 of the Offences Against the State Act, 1939, provides as follows:

Whenever a person is detained in custody, and it expressly provides "detained in custody" not when he is free or when at liberty, not when he is not frightened, but when he is detained in custody under the provisions of Part IV of the Act—

...any member of the Garda Síochána may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence...

According to section 52, the person has to be in custody under Part IV of the Act. That refers us back to section 30 of the Act which enables any member of the Garda Síochána without warrant to stop, search, interrogate, and arrest any person and to take him into custody. He can then detain him in custody for 24 hours and on the certificate of the superintendent of the Garda Síochána, can detain him for a further 24 hours. While he is in that custody he can be grilled and questioned and asked not what happened a moment before, but what happened at any time; at any period; what he intends to do in the future; what he knows about what other people did at any time in the past; what he knows about what other people may do in the future. Surely those draconian rights, if they be deemed to exist, are contrary to ordinary respect for human liberty and human freedom. The Government so considered, and having so considered and having subscribed to the Convention of Human Rights, they could not take advantage of those draconian authorities given to them by section 52. They considered they would not be entitled under the Convention of Human Rights to question a man and grill him, under those circumstances, while in custody. If they did so, such person would be entitled to appeal to the Court of Human Rights.

Feeling, therefore, that in justice as well as by reason of their obligations to the Convention of Human Rights, they could not take advantage of section 52, the Government introduced this very simple requirement in this Bill which does not interfere with human rights. Crime has been committed. A garda has reasonable grounds for believing that this crime is a scheduled offence under Part V of the Act; therefore it is one of the more serious crimes. He has reasonable grounds for believing that the person to whom he is talking and whom he finds at or near the place at the time of the commission, knows or knew at the time of the commission, something about it. He tells the person that, as is provided in the section, he has these reasonable grounds to believe this crime to have been committed. He then demands from that person to give the garda his name and address, something for which any of us could be asked when driving a motor car any day of the week. He also demands from that person to give an account of his recent movements.

This is something to which no reasonable person could take exception. It is something of which no reasonable person could suggest that it is contrary to the freedom or to the liberty of the individual. It is something that, having regard to the times and the circumstances in which we live today and the violence that unfortunately surrounds us today, is a very temperate and reasonable measure. It is the absolute minimum authority which should be given to the police force of our State.

Near the Border the police may see people from within this State 100, 150, 200 yards from the Border, shooting at people on the far side. They see them coming away. Without some power, they can do nothing? A garda, having explained to them that he believes a serious crime has been committed, is entitled to demand their names and addresses. He is also by this Bill entitled to demand from them what were their recent movements. So much for all the draconian rights claimed by section 2 of this Bill. So much for Senator O'Higgins's strong advocacy of the fact that section 52 should be taken advantage of. So much for Senator O'Higgins's interest or concern with the freedom and liberty of the individual.

Section 3 provides as follows:

Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member.

It is very, very simple. Even without those words, it would be evidence anyway. Anything which is relevant to the commission of a crime is evidence in a criminal offence but the nub of that section is paragraph (b).

In those circumstances, dealing with violent men who are drilled and organised closely together, it is impossible to get one of them to give evidence against the other. It is impossible to get an ordinary citizen to give evidence in those circumstances because his life is forfeit if he does. Therefore, paragraph (b) provides that:

"conduct" includes omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.

Unfortunately, we have had people parading the country for the last couple of years under various military titles—lieutenant this, captain that, commandant somebody else, chief of staff somebody else, assistant chief of staff somebody else. They love these titles; they are proud of them; they boast of them; they have their bodyguards when they come down to Dublin; but, if they are arrested or charged with being an ordinary simple private, then they say: "No, prove it". How do you prove it?

It is typical of the type of argument that is being raised in the course of this debate in the Dáil and elsewhere that an effort is made to confuse the ordinary people. It has been said in the Dáil. I have also heard it said elsewhere, even on our national network of wireless, that somebody in the course of a motoring offence admitted that he was a member of the IRA and was not prosecuted for it. I asked the person who made that statement in public: Are you satisfied that a prosecution against him was not pending? His answer was "No". This half truth is fine for an argument or to win a debating point; but surely we should, in the Seanad and Dáil have some greater sense of responsibility. How do you prove that a person is a member of an illegal organisation? It does not matter whether the organisation is the Tartan Gang, the UDA or the IRA. Does anybody in this House or country seriously believe that we can get definite evidence of such a thing— evidence that will stand up in court, evidence upon which a court will be satisfied "beyond reasonable doubt" that that person is such a member? Those are the governing words in every criminal trial, that the court must be satisfied beyond reasonable doubt. But if those people are delighted to have their names in our daily papers or on our national television and wireless services that they are chief of staff and assistant chief of staff and lieutenants and captains and commandants in these illegal organisations, surely some notice can and should be taken of it. Those people should not be allowed to indulge themselves in the vain glory of these titles and then when it comes to take the consequences which a simple private under them must take— or "volunteers", I believe, they call them—surely in those circumstances those statements made by responsible journalists should be accepted unless the party purports to deny them.

To suggest otherwise is to suggest that the journalists of this country are wholly irresponsible. A journalist will not publish a statement of that nature unless he has some grounds for believing it. If he publishes it and has no grounds for believing it, his organisation or paper will not stand behind him. If he is so lacking in a standard of honour and he has nothing to support his report he will soon find himself out of a job. Is it suggested that a journalist can publish all these things and that somebody can indulge in the vainglory of them, in the titles they give him and then say: "Prove that I am a member of the IRA"? Where is the man you will get to come into court to prove it?

Subsection (2) of section 3 is the one on which I have heard the most controversy, in any event. On yesterday's paper I read a letter signed by a large number of professors of Trinity College, Dublin, to the effect that this was to shift the onus of proof on to the accused from the State. I was horrified. My idea of university professors is that they are people who look at things objectively, who examine evidence scientifically, who will arrive at the true state of affairs and a true conclusion no matter what that conclusion will be, who will not prejudge circumstances and prejudge a result. They did not take the least trouble to acquaint themselves with the facts or to acquaint themselves with some simple rules of evidence in criminal law.

There were about 20 names to the letter and for ten guineas they could have the advice of an expert senior lawyer in criminal law. That would have cost them half a guinea each. They say that the onus of proof is shifted on to the accused, but I say, and I stake my reputation on it as a lawyer, as a Member of this House and as a person who has had considerable practical experience of defending criminal proceedings, that the onus of proof is not shifted to the accused.

Mr. McDonald

Did the Senator pay ten guineas for that?

Mr. Nash

It cost me an awful lot more during five years in the university. I saw a letter on the paper by another lawyer stating that it put a person on risk. We should be straight about this. Any of us could find ourselves accused and could be innocent. While I was driving up to this House today there was nothing to prevent any citizen of this country who stood on the road from going to the Garda and untruthfully making a statement that a car with registration number such and such, which passed up to Dublin today, struck him and knocked him on the road. In any of our actions at any moment of any day we are at risk, but it is risk in a reasonable way. A person is not at risk unreasonably in anything in this Bill. If a person makes this statement and swears it in court, before I can be convicted of that crime the judge must be satisfied beyond reasonable doubt that what he has sworn is true. If the judge is not so satisfied I need not go into the witness box; I can ask for a direction and the prosecution is dismissed.

If the prosecuting witness stands up to cross-examination and I go into the witness box and swear "I travelled to Dublin but I hit nobody on the road" the judge cannot convict me unless he is satisfied beyond reasonable doubt that my evidence is untrue. The real test is that the court must be satisfied beyond reasonable doubt. Evidence and proof are too very different matters. It amazes me to hear professors from Trinity College making a statement like they did because, above all people, I would expect them to examine a thing objectively and scientifically and to arrive at accurate conclusions whether or not these met with their preconceived ideas.

I have here some of the literature the Maynooth students passed around when they paraded outside the gates of this House a few days ago. I doubt if some of them were really Maynooth students because of some of the comments I heard, such as "Burn that joint in there".

They must have reached their philosophy course at least, and should have been trained in the basics of reason and argument. Here are some of the arguments they used:

The Bill denies the right of silence in that silence may lead to prosecution under section 2 of the Bill and to conviction under section 3 (1) (b).

What do they mean by the "right of silence". Everybody has that. Nobody accused of a criminal offence is bound to go into the witness box. Most lawyers dealing with the defence of criminal proceedings find that you will not put your client in the witness box if you know he is guilty; but that does not very often prevent you from having him acquitted. If a client wishes to remain silent, that is his right. If, in the instance which I gave of somebody falsely and maliciously alleging I struck him with my car, he wishes to give evidence of that kind I can retain silence. But I will not do so unless I first tear that man's evidence to shreds and show him up for what he is. If I have not then succeeded in doing that and if I feel the court still might have doubt about my guilt, I will then go into the witness box and tell the facts. Those rights are not removed by this Bill.

I leave myself open to correction in stating that this country and England are the only two countries in Europe where an accused person need make no statements in his defence. In the Latin countries he is brought before an examining magistrate and questioned and he must make a statement. If he does not make a statement he cannot give evidence in court afterwards. I was speaking to a Scottish lawyer two or three years ago and telling him of our procedure here where the accused is hedged around by every possible protection. Before he goes into court not only must the State prove everything but must give him a complete transcript of the evidence that is proposed to be given against him and the State are bound within the four corners of that transcript. He can examine it and pick out flaws and see what evidence he can give in conflict that cannot be contradicted so as to acquit himself. He can plead an alibi if he sees a loophole to do so. In Scotland, if a man wants to get the prosecution evidence in advance, he must give to the State a summary of the evidence which he proposes to give in his defence.

It is equally important that the ordinary citizens of the State be protected as that any individual be protected. Is nobody going to defend the silent majority, the people who can have their premises bombed? The unfortunate people who were wounded here in Dublin last night? The relatives of the unfortunate people who were killed? Are the Garda to be prohibited from inquiring the names and addresses of people whom they suspect of knowing something, who were near the scene of that crime? Are they to be prohibited from asking these people for an account of their movements during the previous half hour or so?

If those people go back to the North and have their names placarded as officers or generals in the Tartan Gang or the UDA and this is not denied, are our police force to be prohibited from arresting them at the next opportunity?

This softly-softly, life in a balloon atmosphere is, we are told, what we should abide by. Democracy is not all that old. France and America are probably the first countries which had democracy as we know it today. England, the mother of parliaments, did not have democracy until comparatively recently—she had an oligarchy. In one section of our country we have had democracy for the short period of 50 years. Democracy is a tender flower that must be nurtured and cultivated. Once it disappears it will not re-appear. In Poland and Czechoslovakia, where democracy has disappeared, it did so because steps were not taken against those who nurtured violence and educated the youth in sadism.

May I refer to another paragraph from the Maynooth students' literature. It states that the Bill reverses the principle that an accused man is innocent until proven guilty. This "takes the cake" as regards logic. If a person commits a crime whether murder, arson or robbery, he is guilty of that crime. To say of him that he is innocent until proven guilty is poppycock. He is guilty objectively and factually and any time it can be proved against him he will be convicted. He is presumed to be innocent—a very different thing —until he is proved guilty. He is presumed to be innocent because any court before which he comes must be satisfied beyond all reasonable doubt that he is guilty. To suggest that there is anything in this Bill which alters by one iota that very fundamental principle of criminal law is completely and utterly misleading and one would expect something very much better from the Maynooth students, assuming it was the Maynooth students who were the authors of this document.

Again quoting the Maynooth students:

It gravely restricts the legitimate right of comment on and criticism of the administration of justice in this country. In this way we see the rights of freedom of speech and public assembly being seriously infringed.

I see one way in which the rights of freedom of speech and public assembly can be and will be infringed and that is the day when somebody degrades our courts of justice and is allowed blatantly to interfere with the administration by our judges of the law as it stands with all its protection for the individual. That is the time when I see a danger of infringement of human rights. Section 4 (1) (b) states:

A statement, meeting, procession or demonstration shall be deemed to constitute an interference with the course of justice if it is intended, or is of such a character as to be likely, directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings (including a party or witness) as to whether or how the proceedings should be instituted, conducted, continued or defended, or as to what should be their outcome.

If any of you were unlucky enough to have to involve yourself in court in criminal or civil proceedings as a party or otherwise, would you not wish for that court to be able to give its judgment without fear or favour and that every citizen coming before that court should be equal.

In my own native town of Thurles we had the boys parading up and down, back and forth in front of the gates of the court. The witnesses went in in the morning and the prosecution went on. The boys said nothing to them, but a nod is as good as a wink to a blind horse. When the witnesses came out at lunchtime, they had to pass through the parade while the boys scowled at them and wagged their banners a little.

Mr. O'Higgins

To whom does the description "the blind horse" apply?

Mr. Nash

To those people who were parading up and down outside the courthouse on that day. The witnesses returned after lunch and had to go through the same ordeal. They stayed there until 6 o'clock in the evening. Senator O'Higgins suggests that instead of proceeding under that——

Mr. Reynolds

Tell me why they were not arrested and charged?

Mr. Nash

I will tell you when I have time and when you are intelligent enough to listen to me. Senator O'Higgins referred to the Conspiracy and Protection of Property Act, 1875, and suggested it would protect us against all this interference with our courts. Under this Act if there was a prosecution those witnesses who attended in Thurles court that day would be entitled to give their evidence without any fear and the district justice would feel quite happy that everything was going quite smoothly. If we try to take advantage of the Conspiracy and Protection of Property Act, 1875, it provides that with a view to compelling somebody to do something the party uses violence, intimidates, persistently follows, or watches and besets a house, he can be prosecuted. Under which of those headings could one hope to prosecute successfully those men who paraded up and down in front of the courthouse on that day? Any superintendent of the Garda Síochána who brought a prosecution under that would be laughed out of court by any reasonable Justice, even though his court was being intimidated—and I do not mean any disrespect—even if he felt strongly about the matter. We are told that if a chief superintendent of the Garda Síochána gives evidence that he believes a man to be a member of an illegal organisation at a specified time this is contrary to the basic principles of human justice. I do not wish to waste the time of the House in what are elementary tenets of criminal law known to and practised by every lawyer.

To take the example given by Senator O'Higgins, let us assume that Chief Superintendent Jones—for the sake of a better name—says he believes that our Minister for Justice is a member of the IRA and thereby he is at risk. Any court hearing the case must first be satisfied beyond reasonable doubt that the chief superintendent so believes. A bald statement by him to that effect would not be sufficient for any court to convict.

Mr. O'Higgins

The Senator is misreading the section. All he has to do is make the statement that he believes. It does not go to the root of his belief.

Mr. Nash

I will read the subsection 3 (2):

Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

Mr. O'Higgins

Under this there is no statutory requirement to question the grounds for his belief or to show it is reasonable. All he has to do is state his belief. That is the evidence.

Mr. Nash

I will deal with a practical incident. He has gone into court and stated his belief. The first thing that any accused man, even if he is defending himself as somebody recently was before the Special Criminal Court and I am sure we all agree he was given ample opportunity to do so, will ask the chief superintendent is, what are your grounds for believing this, were you told by an agent provocateur, were you told by a member of the Garda Síochána? If it was a member of the Garda Síochána, the court must have the best evidence and, therefore, the garda must appear in court. I am prepared to concede that except it be a member of the Garda Síochána, the chief superintendent is under no obligation to give the source of his information, that is to identify the person because that person as a result might be at risk. He cannot identify the person who gave him the information but he must state, if asked, what type of person it was. Was it an agent provocateur. Was it a member of his own force? Let us assume it was a member of the police force. In that case the court will insist on the garda's attendance to have the best evidence—as the Criminal Court did in the prosecution against Seán Mac Stiofáin—it must have before it the best evidence. Therefore, the member of the Garda Síochána must attend court and give evidence. He is a member of the police force. He is not someone who needs this special protection. He can be asked: Did you have this information?

Mr. O'Higgins

Does this section not get around the best evidence rule?

Mr. Nash

He can be asked: "Did you have this information first hand, second hand or so on". If the civic guard replies that he did not know whether it was second hand, third hand or whatever, the judge cannot be satisfied that the statement is true. He must be satisfied beyond all reasonable doubt that the accused is guilty of the crime with which he is charged. Therefore, the judge attaches to his note of that evidence the weight it is worth, and can light a cigarette with it. The fact that the chief superintendent is convinced beyond doubt and is morally certain that the person is a member of the IRA is not admissible as evidence without this subsection.

If the chief superintendent is so convinced and can prove that fact to the satisfaction of the court and there is the possibility that the court may be satisfied beyond all reasonable doubt and at that stage only would the accused enter the witness box and swear: "I was not a member of the IRA then." His evidence can also be tested in cross-examination. Unless the court at that stage is satisfied beyond reasonable doubt that the accused is perjuring himself when he swore he was not a member of the IRA, the prosecution must be dismissed. It is as simple as that.

I fail to understand why all the people opposed to the Bill have this deep anxiety about the freedom of the individual, the person who is suspected and who is probably guilty, and are not worried about our State, its democratic processes and the preservation of parliamentary traditions. I do not know why they think the Government should take the draconian measures under section 52, when the Government feel it is contrary to human rights to do so, instead of the simple measures under section 2. I leave that to be judged by this House and the people of Ireland.

Mr. Russell

Notwithstanding what Senator Nash has said—he is a lawyer and I am not competent to argue the merits of the Bill with him—this is a serious measure. An indication of its seriousness has been the reaction of the public and the opinions expressed by various sections of our community, not all in the Houses of the Oireachtas. It is quite certain that no measure in recent years has stirred up so much adverse comment as this Bill in the last few weeks.

It would be quite wrong to dismiss the Bill as a trivial matter or to try and whitewash it in any way. The Bill has been described as excessive in its content and repressive in its intentions. Any Bill based on the 1939 Offences against the State Act of its very nature would be repressive. If in the interests of the community, the judiciary and the Garda Force are given powers to repress people intending to carry out violence the measures must of necessity be repressive.

The Fine Gael Party made their position on this Bill very clear in the Dáil last night. As Senator O'Higgins has stated, in the interests of peace and security, particularly in regard to the tragic events of the past 12 or 14 hours, they decided to withdraw their amendment to the Bill. Therefore the Minister can be sure there will be no opposition from the Fine Gael Party to the passage of this Bill. I appreciate that in discussing this Bill here this afternoon our rhetoric is largely of an academic nature. The Bill will be passed and the Minister has indicated that no further amendments will be accepted by him. Our task is to pass the Bill quickly through the second House of the Oireachtas.

Senator Nash quoted a little poem which made reference to the music of the rifle. I agree with him that unfortunately the cult of violence has been running through our society for many generations. It is only a matter of two or three years when the music of Belgian rifles purchased with funds intended for a far different purpose caused quite a stir in the columns of our newspapers and among our community here. When we talk about the cult of the rifle we should not build up a cult of hypocrisy. To put this measure through in a sensible and constructive manner we should appreciate certain factors which worry the non-lawyer population, the ordinary man in the street who is bemused by the many arguments pro and con which have taken place in the Dáil in the last three days. They are not sure now whether the Bill is a necessary measure or one of repression giving further powers to the Government of the day.

People tend to form their opinions by the circumstances of the day. The tragic circumstances of last night will condition our people, as of now, to a certain way of thinking. At this moment our people want to ensure that the Government of the day have adequate measures to put down the men of violence and protect the community from the excesses of men apparently bent on the destruction of life and property without any consideration for the awful consequences. If this measure is necessary now—and many arguments have been advanced against that point—it is very difficult to come down on one side or the other.

Parts of the Bill are necessary but I have grave doubts about the necessity for other parts. If the provisions contained in this Bill are necessary now, were they not necessary two or three years ago when violence and lawlessness first spread throughout the country? That is one of the questions the ordinary layman is asking. If this measure is necessary to put down the men of violence and to ensure peace, why was it not brought before the Dáil and Seanad when violence first erupted and when men paraded openly in the streets and at funerals and demonstrations without hindrance? Surely there were sufficient indications two or three years ago—some of them were quoted by Senators Nash and O'Higgins and were mentioned in the Dáil—to impel the Government to act against those people. Why was this measure not brought before the Oireachtas in time to prevent the serious situation which has since arisen and which has continued openly and blatantly to the present day?

People have a natural reluctance to give any additional powers to a Government. People react against any additional controls over what they rightly regard as their liberty of movement or liberty of speech. It is a natural reaction of any people and our people are no different in that regard. However, they will give these powers and are prepared to give them if they are satisfied that the existing legislation is not sufficient to contain the lawlessness and the anarchy that have been present in our State in the last two or three years. If this legislation is necessary, why was it not introduced earlier? If it is necessary, in what way is it necessary?

The Minister and the Government can be assured—they have already been assured in the other House—that the Fine Gael Party, with their traditions of law and order and their basic commitment to the institutions of the State, will give them any powers they need. I wish to re-echo that sentiment in this House lest it be forgotten. The Leader of the Fine Gael Party, Deputy Cosgrave, made it quite clear in the Dáil during the last two days that he and his party would support the Government in any measures necessary to contain men of violence and to ensure peace and tranquillity in our State. In conditions of lawlessness and anarchy it is not the men of wealth and excessive property who get hurt, but the workers whose jobs may be put in jeopardy and the people who man our State services. They are the first to suffer in conditions of anarchy and lawlessness. For this reason we in the Fine Gael Party wish to exercise our responsibility in ensuring that the Government will be fully armed to carry out the proper processes of the law.

We have to appreciate that we are living in difficult times. We have to appreciate that the events of last night make things very difficult for the Government, the Army, the judiciary and the Garda Síochána. They must have the support of the Houses of the Oireachtas in their efforts. We would be found wanting in our sense of duty if we did not demonstrate the fact that we stand steadily behind our forces. It must be reiterated that in this State there is only room for one army and one garda force, namely, the Army and the Garda force organised and given their commissions through the Parliament and the people of this State. Nobody else has a right to arrogate to himself the powers to take decisions in the name of the people. Nobody has the right, in the name of patriotism, to create trouble in the streets, to destroy property, to rob banks and carry out other nefarious acts. The fact that a group cloak themselves with the cloak of patriotism does not excuse their actions in any way.

I am sure this House will discharge its duty provided it is satisfied that these measures are absolutely necessary and that they will be used as temporary measures only in the very special situation which is causing our people very, very grave concern at the present time.

Mr. Kennedy

Senator Nash has just concluded what I would call a most remarkable speech by inquiring why we should display anxiety about the individual over and above the greater interest of the State. The answer to that question is precisely why I am opposed to this Bill in toto and why I shall vote against it.

For the reasons advanced by Senator Robinson and others I would be prepared to accept her amendment. It is clear beyond all doubt that one of the car bomb explosions in Dublin last night was directed against Liberty Hall and all that it stands for and against the whole concept of liberty. It was directed against the liberty of our people to go about their business in safety and security. As a Member of this House and as president of the Irish Transport and General Workers' Union, of which Liberty Hall is the headquarters, I condemn emphatically those savage and cowardly attacks and I also condemn those who perpetrated them. I tender my deepest sympathy and that of my union, and of the entire trade union movement north and south, to all those who have suffered as a consequence of these acts. Any anger or bitterness we might feel at these acts of violence should be tempered by a sadness at the terrible tragedy which has come to Ireland and her people, north and south.

Tragic as the actual physical sufferings have been, in the long run it may well be that an even greater tragedy will be the ever-growing conflict and dissention and even hatred in the minds of so many people here in the South. We witnessed that in full in the other House during the last few days. In opposing this Bill I am not activated by dissension. Indeed, I fully sympathise with the Government, and particularly with the Minister for Justice, in the terrible dilemma in which they find themselves. All decent peace-loving people want to end violence and injustice on both sides of the Border.

This Bill will not do that. On the contrary, it will do the reverse. Already, even before the Bill passed into this House, there was ample evidence that the introduction of the Bill itself, apart altogether from its subsequent application, had created a new mood of violence. You cannot end violence and injustice by creating a situation in which many thousands of innocent people may be flung into prison on inadequate evidence or, on rumour. Senator Nash had already pointed out quite clearly—and he spoke as a representative of the legal profession—the virtual impossibility of securing adequate evidence of membership of an illegal organisation. Why then is this Bill deemed necessary?

Then there is the climate created by the Bill. You cannot end violence and injustice by creating a situation in which even the expression of a viewpoint on politics, on social questions or on any matter could subsequently be demonstrated as contrary to the provisions of this Bill. Indeed, to answer Senator Nash's question, I could envisage a situation—and this has happened in other countries before and after the last war—in which even to think is an offence against the State. No doubt, when this Bill is enacted, as unfortunately it seems likely that it will, the Army and the Garda and the courts will, as always, do everything possible to be fair. However, they will be faced with an impossible task.

While even a short time remains, I appeal to the Government to withdraw this Bill altogether, or at least to agree to Senator Robinson's amendment. In the interim period I would ask the Government to pay close attention to the policy statement issued this morning by the Irish Congress of Trade Unions. That policy statement represents the viewpoint of the majority of the people of the Republic and also the viewpoint of the majority of the people of Northern Ireland. This is not a policy statement or a condemnation of this Bill issued for a crowd of people marching up and down outside this building. This is no minority opposition to the Bill. This is a majority opposition. It seems unlikely now that the Government will be able to test public reaction to this Bill, but they can test it through the trade union movement. The Irish Congress of Trade Unions represents 1¼ million workers in Northern Ireland and in the Republic, and I say to the Minister that that view is truly representative of the people of both parts of the country. They want peace but they do not want a situation in which the introduction of this Bill will make matters a great deal worse. As one who opposed the introduction of internment without trial in the North, I equally oppose this measure here. At most it could well mean the physical incarceration of thousands of people: at least it will mean the incarceration of the mind of Irishmen and Irish women.

Tomás Ó Maoláin

I was rather astonished to hear Senator Kennedy's reference at the end of his speech to the Irish Congress of Trade Unions manifesto, and to his very optimistic statement that 1¼ million people were going to be influenced by it. I have a recollection that the Congress of Trade Unions issued a manifesto also on behalf of 1¼ million people against going into Europe. I do not think that even the members of the trade union movement took any notice whatsoever of Congress on that occasion. Therefore, we can disregard the threats of what will happen made by the Irish Congress of Trade Unions, and, indeed, of the Irish Transport and General Workers' Union—of which Senator Kennedy has the honour of being president—as a result of their power in respect of this Bill. The statement issued by Congress is a most irresponsible document. It is nearly as irresponsible as some of the statements that have been issued by the various front organisations which arise in this part of Ireland particularly, whenever there seems to be an opportunity of doing damage to the Government, to the economy or to our progress towards reunification of the whole country. The latest of these front organisations will be having a meeting next Thursday night, and I notice that our illustrious Senators Robinson and Horgan will be speaking at that meeting, citizens for civil liberties, no less. It is one of the organisations which arise whenever there is an occasion to get a wallop at the Government and it conceals behind its mask a heterogeneous mixture of peculiar individuals, practically every one of whom has a different policy in regard to social, economic and national matters. There is one thing on which they all agree: they do not want Fianna Fáil. Unfortunately for them, and for Fine Gael, and for the Labour Party, the people apparently are quite satisfied with Fianna Fáil and they therefore remain the Government.

Senator Kennedy spoke about the introduction of this Bill and that it created a new mood of violence. He said that the climate created by its introduction was also tending to strengthen the mood of violence. The climate created by this Bill was created largely by one of these unions affiliated to the Congress of Trade Unions, that is the National Union of Journalists, which pontificates loud and long, whenever somebody steps on its corns, about the freedom of the individual and the freedom of the press and the freedom of speech. It is a union which, however, arrogates to itself the right to decide in many matters what shall or what shall not go into newspapers.

Senator Horgan speaks loud and long here about this great institution which stands for public freedom, that the freedom of the press must be preserved and the right of journalists is sanctified and sacred. That particular body here in this city of Dublin, independent of the statement which was made by the Minister for Finance in the Dáil about their failure to stand up for a colleague who had been beaten up in County Meath, showed their love for freedom and their fellowman and what right we the ordinary people would have if that dictatorship had power by telling the editor of a newspaper that because a certain expert was not a member of their union he dare not print an article in their newspaper, otherwise they would shut down the whole plant. The editor of the newspaper had to agree tamely and the expert who was going to write an article on this subject of Irish industrial development was thrown out. This climate of which Senator Kennedy speaks is largely created by these gentlemen of the NUJ, by the newspapers and by the commentators on radio and television. I heard some distinguished speakers on the radio during the last week or two including Senators Horgan and Robinson, and from listening to them one would imagine that all hell would break loose in this country if this Bill was passed; that any man would be afraid to talk above a whisper, that there would be no right of free speech left, that every man who passed a public meeting would shut his eyes and put cotton wool in his ears in case he would be accused of being a subversive.

About 12 months ago we had a Bill before this House dealing with illegal occupations and we had the same climate of terror created by these gentlemen and by these front organisations of which I speak. We can disregard that sort of talk which is not a statement of the true position as it exists in this country. The attempt to bring it on to the plain of the Big Brother business, by suggesting that the time may come when even to think will be a crime, is not going to deceive anybody.

In this part of Ireland we want to preserve the freedom which we established here and which we intend to maintain. If the Government decide that it is necessary to get more power than is sought under this Bill they will come back to the Oireachtas and look for it. If that power seems to be more drastic than this Bill appears to be to some people then the Government will not hesitate to look for that power and get it to preserve the rights and liberties of the people of this part of Ireland. It is the duty of the Government to do that.

I spoke of some of the extraordinary statements being made by these front organisations. I want to refer to one extraordinary statement made by a creature from the North who happens to be an elected representative and who came to Dublin last night. She has been here before and has been on television and radio. She spoke at a meeting in Liberty Hall, at which Senator Kennedy spoke, and made disparaging references to the President of Ireland. If I meet that tinker girl it will give me the greatest pleasure to slap her face for those disparaging references. When the time comes I hope the people of her constituency will remember that. The serious point I have in mind is the statement which appears in today's issue of the Irish Independent, the heading of which is:

Bernadette blames Fianna Fáil for blasts.

Last night this tinker girl had the impudence to say to the Irish Independent, to the Press Association and to the other newspapers which listened to her that she had confirmatory evidence that no republican or Northern Irelandbased organisation had anything to do with the blasts and that the only people to benefit out of the blasts were Fianna Fáil and those who write can read.

In any well-run dictatorship this creature would not last very long after a statement like that, and in any country in which, as the NUJ are fond of saying, there is a danger of the freedom of the press the Irish Independent would not last very long for that tendentious heading, but because we have freedom here she is allowed to get away with a statement like that and the Irish Independent is allowed to print a heading like that. That is what I mean by the climate and the creators of the climate. It is these journalists, sub-editors, newspapers who print it, and people like this girl who are allowed to come here and speak like that that create the climate of which Senator Kennedy spoke.

It is unfortunate if you have a person like that and if you also have an individual, with whose party Senator Kennedy's party are connected, leading another party, who avails of the opportunity to give his views on this, as he calls it, draconian legislation. If he is entitled to give his views on this draconian legislation and on the Government and particular individuals here, then I am entitled to give my views on him and on those associated with him. Without a shadow of doubt I think that both of the Devlins and Mr. Fitt ought to mind their own business and we will mind the Offences against the State (Amendment) Act and the liberties of the people of this part of the country which is under our jurisdiction until such time as we are able to take charge of the remainder of the country in a democratic and liberty-loving manner.

Mr. J. Fitzgerald

Do you not regard Mr. Paddy Devlin as a——

Tomás Ó Maoláin

I am not going to bandy any words with Senator Fitzgerald. I am tired of listening to Mr. Paddy Devlin and Mr. Gerry Fitt having side-swipes and wallops down here. It is time somebody turned the other cheek. I am not the person to be always getting wallops. I believe in turning the other cheek.

Mr. J. Fitzgerald

Did the Senator not have side-swipes at them?

Tomás Ó Maoláin

Never.

(Interruptions.)

An Leas-Chathaoirleach

Senators should cease interrupting and Senator Ó Maoláin should speak on the Bill.

Tomás Ó Maoláin

I will speak on the Bill if he allows me to stop giving him the works.

Senator Russell agrees that this is a serious measure and says the Minister can be assured of the approval of the House. I was glad to hear that. He hopes that the Bill will get through the House as quickly as possible.

So far as we can see, there is a lot of hypocrisy in the two Houses of the Oireachtas. Some of the Senators on the other side want it both ways. They want sympathy and to curry favour with everybody but do not appear to have the guts to take a stand on anything. I fear the day will come when they must make up their minds that black is black and white is white. If they do not wish to have this Bill let them say so.

Senator O'Higgins gave us a long interesting lecture on the traditions of the Fine Gael Party and I am strongly tempted to follow him down the road from which he started on those traditions. I am strongly tempted to ask him what the result was of the lawful institutions and the lawful army which he created, but I will refrain. We live and learn and Senator O'Higgins will discover that history cannot forever be cloaked from the people and that the truth will emerge as it is now emerging in spite of the smokescreen created by some of the Senator's co-operators on the newspapers.

This Bill is very necessary. It is a step in the direction of giving adequate powers to the Government to ensure that people can sleep in their houses at night without the constant fear of a knock at the door; that people can walk around the streets and chat to a man passing in a car without the fear that something will blow up in their faces. It is a Bill to help to remove this climate which has crept in here from the slaughter and holocaust which is going on in the North for the last three or four years.

Anything that will save us from that should receive a welcome and any powers that are needed to help in that situation should be given. We have seen the tragedy of the Six Counties in the last four years. We have seen how easily we can drift into trouble here. I am sorry every member of the Opposition parties did not hear Senator Nash's excellent speech. He made an unanswerable case for the Bill. The last four years can be a lesson to us to be eternally vigilant in the small things such as groups of men walking who cannot be challenged although a crime has been committed a few yards away. We want power to do that.

During the past few days there have been demonstrations in this city at which leaflets were distributed and in which slogans were carried. The slogans were not those of peaceful demonstrators or of people who had a just economic grievance. They were the slogans of anarchy and of people who were determined to apply violence and to use the good intention of crowds of young people, in particular, for their own evil ends. We must ensure that the Government will be in a position to deal stringently and quickly without being challenged by all types of legal obstacles. This Bill should receive a quick passage here in the House so that the country may see that the Seanad as well as the Dáil is in earnest about the existing situation which can threaten us by becoming worse.

There is a very serious aspect to this. Senators are aware of the development of rocket warfare in the North. They are also aware of the statements made in the British Press and the House of Commons about where these rocket sites are located. Senators must be aware of the growing feeling among politicians in England that something ought to be done to get the troops to follow home to where the sites are. It would be very easy for a gang of ill-disposed malcontents to arrange a rocket attack and to ensure we could become involved by involving the British. From that anything could happen. The situation is serious, not one to be tinkered with or to score debating points on. Every Senator should think twice before delaying this Bill going through the House.

I should like to pay tribute to the Leader of the main Opposition party in the Dáil for his strong and determined action in regard to the Bill when it went through that House. The public will appreciate the meaning of what he said and did more than they will the demonstrators, the wreckers, the saboteurs and those who hold up this Bill.

Mr. McDonald

I do not propose to delay the business of the House very long. I should like to express sympathy with the families of those who were killed and injured last night and to the victims of last Saturday night's explosion. One of the boys seriously injured was a neighbour of mine and during the past week I have seen the horror and revulsion of the parishioners build up against this kind of carry-on.

I look forward to the Minister for Justice getting down at last to deal determinedly with this type of illegal activity. Coming up to Christmas, and indeed at any time, our citizens should at least have peace and contentment to pursue their normal everyday tasks without harassment and intimidation of any kind.

Members of the Oireachtas, from the legal professions especially, have critically examined the sections of this Bill. Many of them are disturbed by the implications of some of these sections. Nobody doubts the sincerity of any of our colleagues irrespective of which side of the House they sit.

I should like to appeal to the public to co-operate with the Garda on the beat to ensure that we do not park our cars indiscriminately, or take up the time of a hard-pressed force in any way. Every Irishman who is proud of his country and wishes to see it prosper should ensure that his lack of thought does not impose an extra burden on the Garda or the Army in these difficult times. This would help even in a small way to deal speedily with these problems.

With this type of activity starting in the Republic it is important that we, who for so many years have enjoyed friendship and good neighbourliness with the different Christian traditions, should in the holy season of Christmas draw closer together. It is an opportune time for all Irishmen to act like good Christians and to ensure that what has happened in Northern Ireland with such devastating effect does not occur here. I should like to see the people, whose job it is to implement these laws to bring peace to our country, having a reasonable amount of success, while at the same time respecting political views. We must all recognise that in a democratic society the common good should be paramount. The attitude taken by my party has been to put the safety of the State first.

Business suspended at 6 p.m. and resumed at 6.45 p.m.

Mr. Brosnahan

Like Senator O'Higgins, I also have a great dislike of repressive legislation. All forms of injustice and oppression go against my basic principles but, in a situation where normal circumstances do not prevail, there is justification for a restriction of people's rights. Nobody has a fundamental freedom of right particularly if it cuts across the rights of others. There is no absolute entitlement to right without taking into account the rights of others. The situation must be balanced. On the one hand, we are presented with legislation, which seems repressive, and, on the other, we have a situation where obvious repression exists, that is, the repression of violence and the bomb. When one plants a bomb that is a restriction on the right to life, to movement and to health.

Mr. Alexis FitzGerald

Hear, hear.

Mr. Brosnahan

These are the fundamental rights of people. The right of free speech is also fundamental. But rights must be placed in their proper perspective. Last night, a man was deprived of his right to live; his children were deprived of their right to his protection. This morning I called to the home of one of the men who was killed to sympathise with his family. Mrs. Duffy was not there, but I spoke to her sister. The family are shattered as a result of what has happened. Nobody knows who is responsible, but we all know that a man lost his life and his family have been deprived of their rights. These factors must be taken into consideration in any situation. We must ask ourselves now if this is a normal situation. In my opinion it is not.

Last night could have proved a very dangerous situation for one of my own family. My daughter was returning from teacher-training college when the first bomb exploded. When she arrived on Eden Quay to get the bus, the windows of the bus were broken and the driver's arm was torn and bleeding. Then, as she was walking past the Abbey Theatre, 30 yards in front of her the second bomb exploded. She was one of the lucky ones and, when I arrived home, she was quite calm. What disturbed her most was the panic which she and all the other people had experienced. When the first bomb exploded everybody was curious, but when the second one went off there was mass hysteria. One may say that the blame cannot be placed on any particular person or group. When a person plants a bomb then he is responsible for the next bomb planted; the second bomb will be one of revenge. The whole thing becomes a vicious circle; one bomb produces another, and so on. Those responsible for planting bombs must be stopped.

I represent an organisation which have always fought against injustice. This is well known in Government circles. We took on the Fianna Fáil Government in a famous row away back because we felt that they were acting unjustly. We were on strike for seven months and that strike cost our organisation £¼ million.

This morning I consulted the executive of my organisation before coming to this special meeting of the Seanad. A very important decision has to be made. The volume of opinion of my executive was that people must get off the fence. This is the opinion of a 32-county organisation; it is one of the oldest affiliates to the Irish Congress of Trade Unions and the sixth largest union in Ireland. I have already paired with a Member of the other side of the House who could not attend and with whom I have a long understanding. I could slip out of this situation here today but I am not prepared to play the coward in this matter.

Mr. Alexis FitzGerald

Good.

Mr. Brosnahan

I am supporting the Government in this matter. This does not mean to say that I completely agree with all that is contained in the Bill but I have a fundamental responsibility to say what reasonable people think in these circumstances.

When a person is hospitalised he is asked for his consent to disfigurement, to the amputation of a limb perhaps. The patient gives his consent knowing that he may be disfigured forever but his life is at stake. The analogy is somewhat similar in respect of the present situation. We are being asked to give our consent to a restriction of our rights in an interim period in order to avert complete destruction. I give my consent and those with whom I spoke this morning give their consent. When the time comes when these abnormal circumstances shall have disappeared, I will be the first to stand up and defend the right of the individual.

I should like to express my admiration for the conduct of the gardaí last night. These men risked their lives searching for bombs in order to save the lives of others. I should also like to pay tribute to the ambulance men who were on the scene immediately and also put their lives in danger. The people in this Assembly should give their consent to this restrictive legislation for the reasons I have mentioned. We are not being asked to put our lives at risk; we are being asked to suffer these restrictions, as an interim measure, until such time as we appear before this Assembly again and press for their withdrawal. In those circumstances I am voting for the Second Reading of this Bill.

Professor Quinlan

I find myself very much in agreement with the sentiments, so ably expressed, of Senator Brosnahan. We have to ensure that the institutions of the State are maintained, even if that involves certain restrictions. Senator Nash made an excellent speech here today. He has many years of legal experience. He dissected the restrictions and went through the court procedures involved and I do not believe any citizen endeavouring to play a normal role in the community need have any fears of the restrictions.

I should like to appeal to the Labour Party and the labour movement to reconsider, very seriously, their attitude to this Bill. I have a great admiration for the Labour Party for the staunch, non-violent attitude they have adopted at all times in connection with Northern Ireland affairs. They have joined with other parties in deploring violence as a means of forcing political change and have relied on the democratic procedure of persuasion, mutual agreement and trust as the only way forward to a lasting solution. The Labour Party have played a significant role in keeping the country as balanced as it has been over the last few years and they should not lose their heads on this issue.

I should like to contrast the attitude of the Labour Party on the Common Market with their attitude on this Bill. In the Common Market debate the Labour Party——

An Cathaoirleach

I do not think the Common Market would arise under this Bill. The Senator seems to be ranging rather far afield.

Professor Quinlan

I just want to contrast the attitudes of the Labour Party. I ask your indulgence.

An Cathoirleach

I do not think discussion of the Common Market could possibly enter into this debate.

Mr. Alexis FitzGerald

That is absolutely right.

Professor Quinlan

The Labour Party accepted the majority view on that occasion and undertook to act as a watchdog for possible ill-effects that might occur. I believe that the restrictions contained in this Bill have been exaggerated out of all proportion. It is the same type of exaggeration that was indulged in in regard to the Forcible Entry Bill.

I ask the Labour Party to accept Senator Nash's analysis of the Bill. There cannot be any grounds for disquiet when the provisions of the Bill are viewed against the maintenance of law and order. Last night, we had the experience of two bomb explosions in Dublin and perhaps, while we are speaking here tonight, other bombs may be exploded in the city; it would be a very naive man who would think that we have heard the last of bomb explosions on this side of the Border.

Once more, I would appeal to the Labour Party to put the public interest first. All of us here should be committed to that goal. We must all play our part. We are all concerned with the freedom of the individual within the context of an orderly society. We must all endeavour to keep the public calm. I would recommend that organised groups should read the Bill thoroughly before indulging in obviously exaggerated and wild criticisms. We do not know who were responsible for last night's bomb blasts, but we were threatened with retaliation from the North. Is this the retaliation that was promised or are some new organisations causing the explosions? Once retaliation starts it can escalate at an alarming rate. The happenings of last night, small compared with what the North has experienced, should give us an understanding of and sympathy with the problems of the North and should make us commit ourselves to the achievement of a peaceful solution of the problems of Northern Ireland.

I have been saddened by the debate in the Dáil and in public on this Bill. There has been so much recrimination. Questions are being asked as to who started the wave of violence in our society. Where did it start? Who were involved in it in the 1920s and the 1930s? As someone who was a child at that time, I am not interested in such controversy. We have work to do on our future development and the attitudes of the twenties and the thirties are not commendable today. While we go around striking our breasts and crying "mea culpa" do we ever reflect on the achievements of this State? After going through the misery of a civil war the ballot box, within ten years, transferred power from those who won the civil war to those who lost it. That is an achievement that is unique in the history of democracies.

It is something of which we should be intensely proud. If we have had growing pains within those 50 years, who can blame us? Our attitude to the North is traumatic in that we see the national indignation at the settlement that was imposed 50 years ago despite our insistence that it was against the wishes of the majority of the people at that time. Now, as democrats, who look to a future in which we hope we will have a united Ireland, we can clearly see that that future cannot be brought about by holding any sizeable group of people within the community against their will. Hence, the policy, which is supported strongly by all three parties, of a non-violent, peaceful solution to the North, to come about when we have persuaded the majority in the North that their place is with us in a united country in the context of a united Europe. We have, therefore, a great deal to be proud of, but we should not be proud of the debate and the exaggerations that have marred the past three or four days.

To a certain extent this could have been avoided and I blame the Government strongly in this respect. Again and again we have called for the setting up of a committee on Northern affairs. We have not got it. Likewise, the question of security, which is fundamental in this Bill, should have been handled on an all-party basis. At least we should have had all-party discussions before it reached its final drafting stage. If that had been done, the misconceptions would have been avoided, as well as the exaggerations, and a mainly agreed measure would have been presented to the House.

I suggest to the Government that they should, as far as possible, on everything on which we are agreed have tried to work with an all-party approach. After all, Mr. Heath and Mr. Wilson can work together and, despite the ups-and-downs, can preserve a bipartisan approach to the North. It shows us in a poor light if we here cannot combine where we have much in common.

What can we hold out to either side in the North about being able to offer them any legitimate and proper place in the administration and responsibility of a united Ireland, if we cannot begin sharing out responsibilities between three parties here which are fundamentally committed to the democratic way of life and are unanimous in their support for law and order and the rights of the individual?

I was very taken by the tribute paid by the Leader of the House, Senator Ó Maoláin, to Deputy Cosgrave. That tribute was richly deserved. Last night I was in a group watching Deputy Cosgrave's appearance on television. I considered it to be one of the finest moments in Irish television because Deputy Cosgrave showed himself to be a statesman who was prepared to put country before party.

Mr. O'Malley

The party got off the hook.

Mr. Alexis FitzGerald

That is not so good.

Professor Quinlan

That was a tremendous achievement and I should like to add my words of congratulation and praise to him for his excellent work. In the Taoiseach we have got the most underrated leader we have had in our time. He is a man whose standing abroad is far higher than what is grudgingly given to him at home. I saw him in action on other fronts, and I saw him give before a delegation of the Senate of the University as fine a performance as any statesman ever gave. We should be proud of the leaders we have and I would ask you to dampen down all this disturbance and criticism. The climate abroad at present is doing a disservice to the country and is also putting off further the day when we can look to a solution of our problems.

The coming spring can bring that solution, if only we will work together and agree that we are all Irishmen committed to try to do the best we can for the country. It would be a great achievement if we could influence those who are misguided in their advocacy of physical force and wean them away from it. We must make it quite clear that our problem today is that of maintaining law and order. I do not believe that this Bill, in its implementation, will present any real threat to the individual comparable to the threat to law and order today. The bombs last night brought a note of realism to the approach to this, but I am afraid that note of realism is inclined to evaporate and I hope that the coming week will not bring the demonstrators back into the streets.

Tomás Ó Maoláin

They are out tonight—down the street.

Professor Quinlan

I ask the Labour Party not to undo the excellent work they have been doing and to maintain their stand for a non-violent democratic solution to our problem, a solution that will give all groups a rightful say in a united Ireland.

Mr. J. Fitzgerald

On a point of order, I resent that lecture from Senator Quinlan.

An Cathaoirleach

That is not a point of order, Senator Fitzgerald.

Tomás Ó Maoláin

Make it good.

Mr. Alexis FitzGerald

I cannot give warranties on that. Senator Quinlan made a very good point when he spoke about the responsibility of the Government to seek support from the parties in the Parliament in relation to a matter of this kind. Everyone in the House knows, in so far as anybody bothers about me, that my position on this is absolutely clear: the safety of the State is supreme. I would even go into a Greek colonel situation rather than imperil it, provided I knew who the colonels were. If the Minister's advisors want to search the records of this House they will find that I said I was in favour of the maintenance of the power of internment as a necessary State provision for the defence of the State. I do not depart from that position in the slightest degree tonight.

I am concerned that we are carrying out an operation of internment through the procedure of the Judiciary and I am concerned about the final effect of this. This is not a legalistic point: I am not the kind of lawyer who makes legalistic points. I am concerned that the laws spelled out here are respected and supported. We know that laws which are not respected and supported are not capable of being enforced. It is important that the majority of the people are in support of what we decide in relation to this. At this point it is silly to talk about amendments. We are not going to get amendments. The Bill is going to be enacted and that is all about it. You have all got your instructions. I understand that.

We ought to learn something from this experience. We had two Opposition parties in this Parliament totally committed to the security of the State. We learned of this legislation on Monday morning of this week. Why were we not consulted before? Why were our views not sought before? All you want, you will get from us. I know well what is defective in the existing legislation and I would repair that defect, but I would not give you what you are looking for here, if you want me to sign my personal name over what is asked from me, because it goes too far. I ask myself why do you go so far, and I cannot get an answer to it. Why do you put in the Bill what you do not need? There are things in this Bill which are not needed to achieve what you want to achieve. I will give you in two seconds what you want to achieve. Why is there no express provision in this Bill enabling an accused to negative an averment against him as there was in section 26 of the Offences against the State Act, 1939.

The tradition of my party has been talked about and even sneered at. Mistakes, mistakes, mistakes, on all sides mistakes. There have been mistakes on all sides. The instruments of this party are very valuable. They have been referred to by the Leader of the House this evening when he referred to Deputy Cosgrave. I agree with Deputy Cosgrave on this measure, completely, this Bill should not have been presented to us in this form. I do not speak of the Seanad because now we are simply a rubber stamping machine, which is a disgrace. It is a mistake by the Government not to regard this House as a deliberative assembly capable of making amendments, and expected to make amendments—a fundamental Government mistake. It is a bad blunder for the future of this country. What are we all here for? £1,500 per year, is that it? Nonsense. Most of us are here because we want to do what we should be doing. We want to express opinions which will affect legislation. What is the good of calling me to the Seanad on Saturday afternoon to tell the Government that they can get what they will get anyhow from 31 or 32 Senators? This is a bad blunder if you think in terms larger than the interest of the party now in power. I can look at that young chap. I could have been his father but I was not. He will have to live a long life I hope, and he should be thinking of the future of this country. Our country depends for its future development on the co-operation of all the intelligent informed people of the country.

Why not get rid of the Seanad if it is simply going to rubber stamp the legislation? What is the point of it? It is costing the State a lot of money. If it is there it should be used as a serious deliberative assembly. Senator Ó Maoláin's proposal about curtailing the period of time for which the legislation is to be signed is, with the greatest respect, the greatest nonsense that ever was. It is introducing an unnecessary histrionic element into the affair. We have lived with this for years. I was not a bit surprised, God help the poor creatures, at the news of last night's bombings. I have been expecting it for years. I cannot understand why anyone is surprised.

If this legislation is necessary, why did we not have it three years ago? Why had all these events to develop and why had the bombs to go off before this legislation came before us?

I speak for my party when I say that we are in support of all Government measures in favour of the security of the State because, as Senator Quinlan said, the people who planted those bombs deprived people of their lives and liberties and we must be completely dedicated to the proposition that these people must be destroyed, oppressed and repressed, killed, violated, any word you want to use. We have no future whatever unless we realise that this threat has got to be destroyed and repulsed. We are not going to have much of a future if the party in power do not consult us in Opposition when dealing with a situation of this kind.

I have always had the difficulty of being an Opposition Senator. I have always had this difficulty because fundamentally I am an Irish supporter. When people talk to me about it I always try to explain my position by saying that there are certain fundamental matters upon which the Government and Opposition always agree. The Government have behaved badly in relation to this because they presumed on our agreement and they tried to split us. Thank God they failed. It has been a miserable performance because we should all be together in relation to this matter.

I support what the leader of my party in the Seanad said in relation to this Bill. I dislike an enormous amount of the language in it. It exposes a lot of people to proving their innocence where they would not be required to do so in normal situations. I am in a situation in which I would be guilty of an offence under this Bill. As Senator O'Higgins has said, it is important to reconcile the two traditions which we are glad to stand over in this party, the traditions of establishing and supporting whoever may be the person charged with enforcing the laws of this State. They have generally been our opponents. That has not diminished our support for the enforcement of these laws. This is an important point. Are there many parties in different parts of the world of whom it could be said that they have gone in support of the enforcement of the laws by their opponents for over 40 years.

It is also a party very concerned about individual liberty. I am distressed by the terms of the Bill. One hour's conversation between intelligent people and the Bill could have been put into a form which would have been quite acceptable to all. It is important that it should be acceptable to everybody if it is to be enforceable against everybody. It should be sensed to be just but it is not. We are not going to get amendments and on balance in that situation I am not going to oppose it.

Miss Owens

I do not intend speaking in detail on the Bill as the legal approach has been very well put. Like Senator Brosnahan I think it is a time for not sitting on the fence, it is a time for no middle of the road. I want to be counted as opposing this Bill. I find every section and every aspect repugnant. I may have been more fortunate than some Members of this House in that I was born in one of the few generations in the history of this country that did not until now experience violence. We had a peaceful life which we want for future generations. Suddenly within the past three years we are involved in a very violent situation which has escalated.

Like Senator Alexis FitzGerald, though I was deeply shocked by the events of last night, I cannot say I was surprised. We felt it was coming and it has come. There is also the violence of removing our liberty. I find this in the Bill and that is my reason for opposing it. Senator Quinlan appealed to the Labour Party in a very sincere way, as he saw it. I should like to assure Senator Quinlan and the House that the decision of the Labour Party to oppose this Bill was not taken without deep consideration of the situation in the country and of the citizens, not just in this part, but in the whole island. We arrived at a unanimous decision and I expect Senator Quinlan to respect our decision, and I feel sure he does. He instanced our attitude to the EEC and said we accepted the decision of the people which is right because we believe in democracy. We will continue to act as the watch-dog and this is perhaps what I have been elected with my colleagues here to do. I ask him to respect our views as being arrived at not lightly but after very full consideration of our position.

I greatly regret the attack by the Leader of the House on the trade unions during this debate. There is a great difference between what he stated and the statement of the Minister in his opening speech. Senator Ó Maoláin went much further and he cemented my basic fears regarding this Bill when he stated that so far as he was concerned if this Bill was not adequate they would come back for more repressive legislation.

Tomás Ó Maoláin

Correct.

Miss Owens

I did not misinterpret him. What we may expect at a future date is an extension of what are illegal organisations. The trade union movement has been outstanding in maintaining non-violence both North and South. The Irish Congress of Trade Unions, through their North of Ireland Committee, have gone to great trouble to maintain a united congress and trade union movement. It is not the better-off people who are suffering most of the violence: it is the workers in Belfast. Last night two workers were killed in Dublin.

It ill-becomes the Leader of the Seanad to attack the Trade Union Congress. In future perhaps anybody who raises a voice in opposition is to be treated as a criminal and made to suffer the penalties of the Bill. I have made my statement, been counted and I thank the House.

Tomás Ó Maoláin

On a point of explanation, I did not attack the Congress. I was just showing how futile Congress was.

An Cathaoirleach

That is not a point of explanation.

Tomás Ó Maoláin

I did not attack Congress. She tried to misinterpret me.

Mr. Boland

Senator Alexis FitzGerald could have been living in my mind for the past few days, so clearly did he outline my views. In respect of measures of this kind there is an onus on every Member to place on the record of the House their own views. Like Senator Owens I too have, so far, lived apart from violence. I have every hope that I may, with the rest of the people in this part of the country, continue to live in that way. The events of last night in the city shocked me and I hope and pray that whoever was responsible has not indicated a commencement of violence in this part of the country.

Like Senator FitzGerald I am amazed that it took so long for violence to reach the streets of Dublin in view of events in the North over the past few years. I have been consistently surprised at the lack of Government action over the last number of years, not to counteract that because it was not here in a physical form, but to take steps to ensure that it would not arise. If measures are necessary and must be taken why was there a gestation period of three years?

Senator Alexis FitzGerald said the Government may expect total support of all Government measures from his party. I am sure the Senator would accept my suggestion that he, in fact, meant total support of all reasonable and responsible Government measures that are necessary to deal with any situation such as this.

We were told earlier by the Leader of the House that this Bill was designed to save us from events similar to those happening in the North of Ireland. I greatly fear that this Bill, instead of being a preventative measure, may become the actual agent whereby violence will arise in this part of the country. I incline to the belief that if one goes too far in an effort to control any activity which is felt to be illegal, the situation can occur where illegal activity not only continues but grows in volume and becomes more bitter in outlook from being driven completely underground.

I experienced a slight by-product of that feeling this week. While attending a parliamentary party meeting in this House which went on into the early hours of the morning a threatening phone call was received at my home. The threat was not directed at me. The person who took the call was requested to pass on a message to me which I in turn, was to pass on to a prominent member of the front bench of my political party in the Dáil. The message was that if he was not prepared to vote against this Bill his wife, family and himself would be assassinated. It is important that this should be said. There we see the by-product that can come from a measure such as this.

Mr. Honan

Why did you not get him prosecuted?

Mr. O'Higgins

I received an anonymous phone call to the effect that if I did not vote against this Bill I would be dealt with.

Mr. Alexis FitzGerald

I have been miserably neglected in this regard.

Mr. Boland

May I answer Senator Honan to the effect that the caller omitted to give his name and address? Consequently it would be somewhat difficult to have him prosecuted. While I have what I would describe as a legitimate fear about the by-product of violence which this Bill could create, on the other hand I have a deep-rooted objection to and hatred of the activities of the various subversive elements in our society today. I cannot under any circumstances envisage lending my support to either wing of the IRA.

Mr. Alexis FitzGerald

Agreed.

Mr. Boland

I feel an obligation to support any attempt to control their activities. Senator Ó Maoláin referred to a climate being created in this part of the country by those two wings of the IRA. He suggested that was why this Bill was necessary. I am not sure that climate was being created up to the present but if so it is only fair to say that climate was bred by the Fianna Fáil Party. They must be prepared to accept a heavy share of the responsibility for any such climate. The speech of a former Minister in the Dáil yesterday demonstrates very clearly what has been stated time and time again by the Opposition parties in the past few years: the Provisional IRA is the nurse child of Fianna Fáil. Let nobody on that side of the House deny it. The truth has now emerged and is on the record of the Dáil. We were told quite clearly the IRA were the bedfellows of the present Fianna Fáil Party. That party only decided to deal with them when they discovered their bedfellow had grown fangs and become too big to handle. It was no longer prepared to take instructions from its founding parent organisation.

Mr. Honan

All that is hearsay. You do not know anything about it.

Mrs. Robinson

It is evidence.

A Senator

Senator Robinson agrees.

Mrs. Robinson

Yes.

Tomás Ó Maoláin

Now we are going into history. We had better be prepared for a lot more.

An Cathaoirleach

Senator Boland to continue without interruption.

Mr. Boland

I wish to quote from the Evening Press of Friday, 1st December, 1972. This is yesterday's paper, front page story, sixth edition. Hardly history. I quote:

IRA Link Admitted by Blaney.

An Cathaoirleach

It is not usual to quote debates in Dáil Éireann in this House.

Mr. Boland

I am quoting from the newspaper.

An Cathaoirleach

Arguments made may be answered. It makes no difference what the Senator is quoting from. It is not permissible either to quote from the Official Report. Ministerial statements may be quoted but the debates in the House and statements made by Deputies in the House are not quotable in this House.

Mr. Alexis FitzGerald

He did not say it was a Ministerial statement.

Mr. Boland

I know that I have previously quoted statements from the Dáil debates in this House.

An Cathaoirleach

The fact that the Senator may have been disorderly on a previous occasion does not make him in order this time.

Mr. Boland

Somebody said some-where—it will be apparent from the record who the somebody was and where he said it—and I quote:

I and a whole lot of others helped to bring and encouraged to bring into existence what very shortly afterwards became what are now condemned as terrorists, murderers and gunmen of the Provisional IRA.

Tomás Ó Maoláin

What has that got to do with what we are discussing tonight?

Mr. Alexis FitzGerald

He will tell you in a moment.

Tomás Ó Maoláin

I am not going to sit here all night——

An Cathaoirleach

The Chair is hoping that the relevance of this will become clear in a moment.

Mr. Boland

I am aware that this must make bitter music for the ears of Senator Ó Maoláin and his colleagues, but I am going to say——

An Cathaoirleach

The Chair is not interested in the bitterness of the music but in its relevance.

Mr. Boland

Its relevance is this: the person who made that statement yesterday was clearly referring to a time when he held ministerial office in the Fianna Fáil. Government of the present Dáil. He was very clearly pointing out and verifying the case that I have made, that that party founded and nurtured the Provisional IRA.

Tomás Ó Maoláin

He did not say that. Do not be a liar. If you must quote, quote what he said.

An Cathaoirleach

The word "liar" should be withdrawn.

Tomás Ó Maoláin

Quote what he said. At this time of the night we are not going to put up with that.

An Cathaoirleach

Nonetheless, the word "liar" should be withdrawn.

Tomás Ó Maoláin

We are not going to listen to a repetition of what happened in the Dáil last week.

An Cathaoirleach

Interruptions are disorderly. Is the Senator withdrawing the word "liar"?

Tomás Ó Maoláin

All right.

An Cathaoirleach

Will Senator Boland please proceed, on the Bill?

Mr. O'Malley

He cannot, Sir, because Senator O'Higgins has just run round with a book written by another ex-Minister with a part marked for Senator Boland to quote. So, Senator Boland cannot proceed on the Bill.

Mr. O'Higgins

It is not in the Dáil Official Report.

Mr. Boland

I thank the Minister for having explained to the House what I would have explained when the interruptions ceased. Senator O'Higgins has indeed given me a book and he has marked a paragraph and I shall read it because it is worth quoting in conjunction with the quotation of Deputy Blaney of yesterday. The quote comes from page 55 of a book written by Mr. Kevin Boland called We Won't Stand (Idly) By.

Mr. Alexis FitzGerald

Who is the publisher?

Mr. Boland

The paragraph refers to deputations coming to Dublin from the Six Counties. The paragraph says:

Initially at any rate there were no IRA elements in these deputations. In fact, the Fianna Fáil Deputies were saying: "Where are the bloody IRA?" One would think that they had been cossetted and nurtured by Fianna Fáil just for such an eventuality and now they had let their sponsors down.

Tomás Ó Maoláin

Is the Senator finished?

Mr. Boland

They are not my words. They are quoted. They happen to correspond very closely with my words. They were written by somebody else with the same surname. I must admit for the first time I found myself in agreement with him.

The situation we have found is that the Provisional IRA have grown too big for their sponsors and we are now presented with this Bill by the sponsors of that organisation. We are being asked to pass that Bill to help them to control the illegal organisation which, by their own admission, they helped to found. We are given a Bill and are being told that "Des washes whiter than white." I am afraid the Bill may wash too whiter than white.

Lawyers are a necessary nuisance. Every political party has them and benefits from them——

An Cathaoirleach

This also is not a matter that is relevant to the Bill.

Mr. Boland

——I am coming to the point—and suffers quite often from their advice.

An Cathaoirleach

They are not relevant to this Bill and I would ask the Senator to pass from them.

Mr. Boland

I want to refer——

An Cathaoirleach

The Senator should try to refer to matters in the Bill.

Mr. Boland

I want to refer to the contribution made by Senator Nash where he pointed out to the House that he was a practising lawyer. That is why the remark was made. I still hold it is true. I am not a lawyer. I do not understand the law to that degree. When Senator Nash can tell this House that it was impossible to secure convictions against persons who mounted pickets on the district courts, I, without legal knowledge or training, must express surprise because I can recall in the last month or six weeks reading a report in the daily Press of a district justice who called into his court persons who were picketing outside that court and he either threatened to convict them for contempt of court or did in fact fine those picketers for being in contempt of his court.

Senator Nash quoted from another piece of legislation which he said was the appropriate one and which he pointed out was obviously not effective in dealing with that situation. I mention it now because I would genuinely appreciate if the Minister would deal in his reply with the point I have made

Subsection (2) of section 3 is abhorrent. I am expressing a personal opinion. I find objection to it. I find the subsection very hard to stomach. I cannot understand why any person, qualified or otherwise, should be allowed to place his belief before a court and that belief is to be treated as evidence. I cannot see the correctness of that procedure unless the person who is affected by that belief is entitled to place counter evidence on his own behalf which would obviously be to the contrary.

I am also concerned that in this Bill there is no provision for a time limit. While Senator Owens and myself and other Members of this House may be very young we could see our children as adults still living in a country where this Bill was in operation and could be used. This Bill has been admitted by everybody to have been necessitated by the situation of the day. If that is accepted then, logically, contained within it there should be provision for its suspension when its authors feel it is no longer necessary.

Like Senator Fitzgerald, I have no real objection to legislation being introduced in times of emergency or national crisis which is said to be necessary to maintain the right of the majority of the people to live freely and fully and without let or hindrance. Any democracy needs some form of legislation like that which can be implemented if situations arise. There is no point in any of us suggesting that we can live fully and freely in a democracy without any fear that the political climate of that democracy may change unless there are safeguards to ensure that it does not. This is why every democracy and every Minister for Justice needs that legislation and needs whatever special police force may be necessary to ensure that democracy continues to thrive. One is a necessary adjunct to the other.

My objection to this Bill is that the controls the Minister is seeking are, in certain aspects, excessive. In view of the situation which manifested itself last night in such a dreadful way, perhaps the Minister will be able to justify to the House why he feels those sections which many of us feel to be excessive are considered necessary. Not only this House but the whole country would be extremely interested in his answers.

Minister for Justice (Mr. O'Malley)

My job in replying to this debate has been made very much lighter and easier by the speeches I have heard here tonight, particularly those of Senator Nash, Senator Ó Maoláin, Senator Brosnahan and Senator Quinlan. They have put across both the need for and the meaning of this Bill more learnedly and more eloquently than I could hope to do.

I do not propose, at this stage, to go into any minute details on particular provisions contained in sections because, as we are going to take the Committee Stage immediately, it would be repetitive. I had hoped that current events would have impressed on all Members of the Seanad the necessity for our giving greater freedom and greater powers to the Garda, on behalf of all our people, to try to counteract subversive organisations and the activities of people whose criminal tendency is such that they put the institutions of State at risk. Neither this Bill nor any other Bill can be any guarantee against crime but this Bill will strengthen the hands of the Garda Síochána in their efforts to deal with serious crime.

As I have already said, I thought that events would have impressed on all Senators the necessity for this legislation. Indeed, it may be said that it impressed it on the vast majority of Senators but not on all. We had the debate used, in some instances, for purely and very obviously political matters. I might be excused if I make some reference to the politics of today and yesterday and tomorrow rather than to the politics of 30, 40 and 50 years ago that we heard so much about.

What struck me most forcibly during the last week or so was the courage of Deputy Liam Cosgrave. It has been referred to already tonight on both sides of the House. As against his courage, I have to look on the position at very close range of certain members of the Fine Gael Party during the last couple of days. After I introduced this Bill in the Dáil a speech in what I can only call the most extravagant terms was made immediately afterwards by Deputy Cooney.

An Cathaoirleach

The Minister will remember that I reminded Senator Boland about the undesirability of discussing debates in the other House.

Mr. Boland

What is sauce for the goose is sauce for the gander.

Mr. O'Malley

I certainly remember your reminding Senator Boland on that but I also remember what Senator Boland did. The condemnation of this Bill by the Deputy, on behalf of the Fine Gael Party, to the effect that it was beyond amendment and that there was no good in it was followed by the speech of Deputy Cosgrave which repudiated every line of what his spokesman on Justice had said. If I had gone into Dáil Éireann and made a speech on an important matter relating to the security of this country and if I was followed by the leader of my party, Deputy Jack Lynch, who repudiated every word I said, I would resign.

Senators

Hear, hear.

Mr. Boland

There is hope for us yet.

Mr. O'Malley

Unfortunately, the same rules do not seem to apply elsewhere. Not alone was every word that Deputy Cooney, as spokesman on Justice, repudiated but every word that Deputy Richard Burke, as spokesman on Posts and Telegraphs, said in relation to RTE was repudiated also.

Mrs. Robinson

A Chathaoirleach, under your ruling it does not seem to me that the Minister is in order.

An Cathaoirleach

The Minister is not quoting. It is undesirable to refer to debates in Dáil Éireann. It is not permissible to quote. Obviously some references can be made but they should be brief and not in the nature of quotations.

Mr. Alexis FitzGerald

The whole performance is miserable. Let the Minister proceed.

Mr. O'Malley

The performance is miserable if Fine Gael are at the receiving end of it but we sat back here quietly tonight, all 32 of us, and listened to the debate.

(Interruptions.)

Mr. Boland

I would appeal to the Chair to let the Minister continue.

Mr. O'Malley

Deputy Burke had gone out on a limb in relation to RTE. He condemned, absolutely and without hesitation——

Mr. Alexis FitzGerald

When did he do this?

Mr. O'Malley

In the Dáil and outside of it. The very necessary action taken by the Government in relation to RTE was agreed with fully by Deputy Cosgrave. Not alone was what Deputy Cosgrave said a repudiation of Deputies Cooney and Burke in these matters but it was a repudiation of all the feelings and thinking of Deputy Garret FitzGerald.

Mr. Alexis FitzGerald

What on earth has this got to do with the debate in the Seanad on the Offences against the State Bill? I shall ask that the rules of this House be imposed on the Minister as they are imposed on me. The Minister should direct his remaining brain to what is relevant to the Offences against the State Bill and not bring us into a discussion about what other people have said in other places. We know nothing about such things. It is good to hear him discussing these matters from my point of view but I do not think it is good from the country's point of view.

Mr. O'Malley

We will come to Senator Alexis FitzGerald because he reacted, in his political criticism, a little differently. He was not as embittered, and in fairness to him I must say he never is, about these things. In the way he talked tonight I thought he suffered from what I might call post-crisis trauma or, should I say, mid-crisis trauma?

Mr. Alexis FitzGerald

Wrong.

Mr. O'Malley

It is noteworthy that in this debate here tonight of all the criticisms directed against Fianna Fáil the only criticism I have heard was against people whom Fianna Fáil kicked out. I wonder will the Fine Gael Party have the guts to do the same with their dissidents whom they recently acquired.

Mr. Boland

Deputy Blaney resigned.

Mr. O'Malley

In view of Senator Boland's learned contribution when he quoted from statements made by Deputy Blaney in another place yesterday, I thought it rather incomplete of Senator Boland not to continue and quote what the Taoiseach had to say last night in relation to it. The Taoiseach pointed out, as I now point out to this House, that what was said yesterday in the Dáil by Deputy Blaney was the direct opposite of what he said there in May, 1970. At that time Deputy Blaney said that he had nothing good, bad or indifferent to do with the IRA or with the founding of it or anything else in connection with it. As far as I can see, a man who within a space of two years, talking about the same event, says the direct opposite in relation to it can only be a liar. I do not know which of his statements is a lie, but one of them has to be a lie, and that is the value of what Deputy Blaney had to say yesterday.

Mr. Boland

It depends which one is the lie.

Mr. O'Malley

I am not clear whether a motion in Senator Robinson's name is still before the House. It was not referred to afterwards by other Senators but in order to keep the record right I should like to say that when the Senator suggested that the Taoiseach might avail himself of the provisions of Article 24 of the Constitution, she seemed to suggest that there was some obligation on him to do that, or that he would have acted more correctly if he had done that. There is, of course, no such obligation on him.

The Taoiseach did not send any message to the Seanad under the Constitution which would have compelled them to meet. He assumed rightly that the Seanad would be anxious to meet as soon as possible in these circumstances. The Seanad met of their own volition, acting under the discretion of the Cathaoirleach. As a non-Member, I am not concerned with the meeting of the Seanad, but as a member of the Government it is obvious why the Taoiseach would assume that the Seanad would wish to meet in these circumstances. His assumption on this point has been borne out by the largest attendance that I have ever seen in the Seanad, notwithstanding the inconvenience of the day and of the hour.

There were several detailed points made during the course of this debate which I do not think are worth while dealing with in detail now, if they are going to be raised on the Committee Stage which, I presume, will follow immediately afterwards. However, there was one point — although I am not certain if I really have to reply to it, as it was replied to very ably by Senator Nash — which was raised by Senator O'Higgins. Senator O'Higgins professed inability to see any great difference between section 52 of the Offences Against the State Act, 1939, and section 2 of this Bill. If the Senator compares the two of them, he will see a very considerable difference between them. Section 52 relates only to persons who are definitely suspected and already under arrest under section 30, and they are persons who have been under arrest for up to 48 hours. However, there is no suggestion in section 2 of the Bill that a crime had been committed by the particular person being questioned —it may have been committed by anyone but the gardaí need to question persons found anywhere in the vicinity of it. Section 2 sets out in some detail a long list of prerequisites before the section is applicable and therefore before a conviction could be obtained under it for refusal to answer. As the Taoiseach mentioned in the other House and I think was referred to by Senator Nash, the reason is not a question of whether or not I like section 52 or that I or the gardaí want to use it; we have simply been told that we cannot and that it is clearly and flagrantly in breach of Article 6 of the European Convention of Human Rights. With equal certainty I have been told that section 2 here is not in breach of Article 6.

It is also worth pointing out that section 52 is in operation only when Part V is in operation. A question of its possible use, therefore, did not arise until the end of May, 1972. In view of the fact that a number of Senators spoke about the necessity for a time limit in relation to some of the powers contained in this Bill, it is worth pointing out to Senators that there is a definite restriction as to the time at which section 2 can be used, by virtue of the fact that it can only be used in connection with scheduled offences. Offences can be scheduled under Part V only when Part V is in operation. This is the restriction as to time of use which I introduced last night by way of amendment in the Dáil in regard to subsection (2) of section 3. Subsection (1) of section 3 scarcely calls for any sort of limitation. I do not see that any reasonable objection can be made to it, and that was acknowledged by Senator O'Higgins and others. It simply spells out the power of the court to draw inferences from certain things. That power at the moment was very doubtful whether inferences could be drawn from certain things, but no injustice can be done to any man by drawing inferences from his conduct over a period, and I see no reason why that should not be part of our permanent law.

Likewise, section 4 is simply a reenactment in statutory form as near or as accurately as the legal draftsman can express it of what is already in the existing law with regard to contempt of court. With this difference, in order to achieve what we want—and this brings me to a point that was raised by Senator Boland—the existing law on contempt of court is now expressed by section 4 of this Bill in statutory form for the purpose of creating a statutory offence. The purpose of doing that is to give the gardaí power to initiate proceedings, and accordingly to arrest and charge people as appropriate.

I am afraid that Senator Boland has fallen into the difficulty of thinking that up to now contempt of court has been a criminal offence for which a conviction could be obtained. He referred to somebody being brought before a district court for contempt and getting a month's imprisonment or a fine. That is not a conviction : it is not a criminal offence at all. It is a civil act of disobedience to the court or a civil affront to the court. The Garda or the Attorney General have no power at the moment to initiate action against somebody who commits contempt of court or who, in the corresponding words of the section, interferes with the course of justice. It put the Garda at a great disadvantage.

Indeed, it was a disedifying public spectacle that outside many courthouses during the last year or two we have had parades of people who sought to interfere with the course of justice; who sought to intimidate the court, the jurors, the witnesses and the parties to a case in the way that they felt that that case should go. It was not possible for the Garda to do anything about it unless the court directed them to go out and arrest a person or persons and this, to say the least of it, was a frustration and an annoyance to the Garda. It probably was in some way the cause of public scandal because it led ordinary citizens, for example Senator Boland, to believe that the Garda were not bothering to do anything about it. Frequently the courts were not bothered doing anything about it because they were often unaware of it, and where they were aware of it they took the reasonable attitude that they were not going to be influenced by a crowd of "scruff" marching up and down outside the courts.

Mr. Horgan

So what is the problem?

Mr. O'Malley

The jurors, the witnesses and the parties who had to pass by were very much intimidated by it.

Mr. Alexis FitzGerald

They have been intimidated for a few years.

Mr. O'Malley

They will no longer be intimidated because under section 4 the Garda will be in a position to arrest these people or arrest as many of them as will be physically possible at any one time and to charge them with an offence after this Bill becomes law. This is so obviously an inimical activity towards the institutions of the State and it would always be so irrespective of the state of the country. I see no reason for any sort of time limit on this Bill. Section 5 is purely a definition section to extend the existing definition of document.

In general, the powers sought in this Bill by comparison with the powers existing for 33 years in the 1939 Act are but a pale shadow of some of the things which the 1939 Act does and, I have been advised, and the police have also been advised, that the 1939 Act was drafted in less sophisticated circumstances than exists today and clearly some of the sections—section 52 and there may well be several others—are clearly in breach of the Convention of Human Rights.

It has been suggested to me here, I think, and it certainly was in the Dáil, that I should detail why we have run into difficulty with certain sections. I did that in the Dáil in relation to some sections in December, 1971, and was not thanked for it because I discovered that my exposition was read by some people who made good use of it afterwards when either they or their clients were prosecuted under those sections. For that reason I am not going to go into any detail in relation to any particular section. I want the House to understand that it is not my judgment of what is defective in the present law or what is necessary in this Bill that causes the precise matters that are dealt with in this Bill; it is the view and experience of those whose everyday work brings them up against these difficulties.

It is my duty to ask the Oireachtas to give the Garda and those who have to enforce the law in this country the necessary powers to do it within reason. The powers set out in this Bill are reasonable.

I did not get the opportunity since the recent events in the vicinity of this House to say that it should be a cause of concern to every Member of the Oireachtas and to every reasonable citizen that on at least one night during this week more than 1,000 members of the Garda Síochána and 100 or more armed members of our Army had to surround this building to enable these two Houses to perform their functions. In the course of their defence of these Houses several members of the Garda Síochána were injured. They received injuries like getting a bottle in the eye which can leave a man maimed for life. The Garda Síochána acted bravely on that occasion and were there for many long hours in unpleasant conditions in order that democracy would survive. When a prisoner in custody had to be guarded by members of the Garda Síochána within the past week they acted more than bravely in keeping him in their custody notwithstanding an attack in, of all places, a hospital containing 532 patients. They themselves were proud of the way that attack was beaten off. We are all entitled to be proud of it.

It is our duty to give them whatever assistance that we, as legislators, can give them in order to enable them to do the difficult and dangerous work which they do on behalf of all of us.

Mrs. Robinson

I should like to ask the Minister to reply more specifically to the purpose of this amendment. The problem with the circumstances in which we debate this Bill is that there is a good deal of emotion and a good deal of shock——

An Cathaoirleach

The Senator can ask for clarification of a specific part of the Minister's speech. She cannot ask the Minister to continue his speech further beyond where——

Mrs. Robinson

The specific clarification I want is whether, in the opinion of the Government, this is a matter of urgency. The point in bringing in the amendment refusing the Second Reading was that if this is a matter of emergency, and if it is urgent that we pass this Bill tonight, why have the Government not chosen to implement the constitutional safeguard in Article 44? It will probably be some time on Sunday morning before the Bill goes through. The House cannot——

An Cathaoirleach

The Senator is making a further speech. There is an amendment to the Second Reading in the names of Senators Robinson and Horgan. I am now going to put this amendment to the House. Before doing so I should like to remind Senators that, in the event of the amendment being defeated, the Second Reading will forthwith be declared carried.

Question put: "That the words proposed to be deleted stand."

The Seanad divided: Tá 33, Níl, 6.

Tá

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

Níl

• Desmond, Eileen.
• Fitzgerald, Jack.
• Horgan, John.
• Kennedy, Fintan.
• Owens, Evelyn P.
• Robinson, Mary T.W.

Tellers: Tá, Senators Brennan and J. Farrell; Níl, Senators Horgan and Robinson.

Question declared carried.

Agreed to take remaining Stages today.