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.