Seanad Éireann debate -
Tuesday, 23 Mar 1976

Vol. 83 No. 14

Rules for the Government of Prisons: Motion.

Mrs. Robinson

I move:

That Seanad Éireann hereby disapproves of the Rules for the Government of Prisons, 1976 (S.I. No. 30 of 1976).

I am glad of the opportunity to urge this House to disapprove of the proposed amendment to the Rules for the Government of Prisons and so to prevent this statutory instrument from coming into force. I propose to begin by quoting the relevant parts of the statutory instrument. It is the Rules for the Government of Prisons, 1976, Statutory Instrument No. 30 of 1976, and provides:

1. These rules may be cited as the Rules for the Government of Prisons, 1976.

2. Notwithstanding anything in the Rules for the Government of Prisons, 1947, the Minister for Justice may, where he considers it necessary in the interests of the security of a prison or of the State and for reasons related to the particular person, direct that a person (including a prisoner's legal adviser)

(a) shall not be admitted to a specified prison or (b) may be admitted to a specified prison only on such conditions or in such circumstances as the Minister may specify,

and any such direction shall be complied with by the Governor of the prison concerned.

3. The powers conferred by Rule 2 of these Rules shall not be so exercised as to prohibit or restrict visits from so many members of the legal profession as to deny to a prisoner a reasonable choice of legal adviser and legal advice given by such adviser in the sight but not in the hearing of a prison officer

I believe that these proposed prison rules would allow a serious encroachment on civil liberties in Ireland, that they would undermine the independence of the legal profession and that they would confer on the Minister for Justice an arbitrary power which goes far beyond the particular problem which it is sought to resolve.

There are four basic arguments for rejecting these rules. First, I believe they are ultra vires the authority of the Statute they invoke, in other words, the Prisons (Ireland) Act, 1877. Secondly, they contravene Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms which Ireland has signed and ratified—and there can be no derogation from Article 6 of the Convention—and they also contravene Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners under the United Nations resolution of 1955. Thirdly, they contravene the fundamental rights provisions of the 1937 Constitution, both in the way that they curtail the rights of an individual prisoner and in the way they affect the livelihood, professional standing and good name of the particular legal adviser who may be blacklisted by the Minister under powers exercised under these rules. Fourthly, these new rules would confer on the Minister for Justice a far-reaching and arbitrary power which goes much beyond the immediate ills it seeks to cure. The Minister would be judge and jury. He would be able to blacklist members of the legal profession and to curtail the rights of individual prisoners with no appeal from his exercise of this power, with no requirement of a hearing in the matter, no due process of law in relation to the exercise of this power. These are the four main reasons why I would urge this House to exercise its function and to disapprove these rules so they do not come into effect and do not become part of our law.

I propose to deal with each of these four grounds in turn. Firstly, the ultra vires argument. The Minister in the statutory instrument cites his authority for making the new rules, I propose to read this paragraph:

I, Patrick Cooney, Minister for Justice, in exercise of the powers conferred on me by sections 12 and 13 of the Prisons (Ireland) Act, 1877, (as adapted by the General Prisons Board (Transfer of Functions) Order, 1928) hereby make the following rules...

Therefore, the Minister clearly states that the statutory authority on which he is basing these rules, which is sections 12 and 13 of the 1877 Act. But there is nothing expressed in sections 12 or 13 which would confer any such power, and therefore the Minister is interpreting the provisions of sections 12 and 13 and I believe he is interpreting them contrary to the clear text in particular of section 13. Section 12 provides for a general power in this regard. It provides that the General Prisons Board— and now the Minister—may:

...from time to time after the commencement of this Act, by rules to be made in manner hereinafter described, alter or repeal the bye laws in force for the time being for the regulation of any prison and for the duties and conduct of the Governor and other officers of the said prison and for the classification, diet, clothing, maintenance, employment, instruction, discipline and correction of all persons confined therein and may repeal rules so made and may make new rules instead thereof.

That is a general, overall power to make rules relating to prisons. The relevant part of section 13 is subsection (2). Section 13 provides that the Minister may make and when made, may from time to time repeal, alter or add to special rules in paragraph (ii), it states:

...with respect to communications between a prisoner, his solicitor and friends so as to secure to such prisoner as unrestricted and private communication between him, his solicitor and friends as may be possible, having regard only to the necessity of preventing any tampering with evidence and any plans for escape or other like considerations.

Therefore the Minister has power to regulate the conditions in which a prisoner sees his solicitor; not to decide, as the Minister would try to do in these prison rules, who will be the solicitor in question, not the prisoner's solicitor but the Minister's designation of whom the prisoner's solicitor will be—"No, you cannot have a certain person; you may have anybody else or a restricted list of other people and if you wish to see people on a blacklist you must do so under conditions which contravene the minimum requirements for prison rules."

Not only is there no express power in either section 12 or section 13 of the 1877 Act for these prison rules, but I would maintain that the clear intention of section 13 is to guarantee that the prisoner will have access to his solicitor and friends but that there will be a power in the Minister to regulate the conditions to some extent but not to undermine the guarantee of unrestricted and private communication between the prisoner and his solicitor. I would maintain that the rules are ultra vires the particular section, that the Minister is trying by means of a statutory instrument to take unto himself very far-reaching powers—I will go into the nature of the powers later—without any express authority and in a manner which appears to go against the text of these two sections on which he relies and their clear intention that a prisoner will have access to his choice of solicitor.

Secondly, I should like to develop the argument that these rules are contrary to the European Convention and contrary to the United Nations Minimum Rules for the Regulation of Prisoners. The Convention is, of course, the Convention for the Protection of Human Rights and Fundamental Freedoms which was signed and ratified by Ireland and the relevant Articles are Articles 1 and 6. Article I provides:

The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.

and Article 6 falls within that section 1. It provides for due process for persons accused of a criminal charge. The relevant part of Article 6 is section 6 (3), which provides that:

...everyone charged with a criminal offence has the following minimal rights——

subparagraph (c)

——to defend himself in person or through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require...

"To defend himself in person or through legal assistance of his own choosing," not of the Minister's choosing, not of the choice of the Executive by blacklisting certain members of the legal profession but legal advisers of his own choosing.

I think it is ironic that this country is bringing the United Kingdom before the European Court of Human Rights for breach of the Convention on Human Rights in relation to treatment of prisoners, and yet in this House today we have a choice whether to disapprove or whether to approve of prison rules which contravene Article 6 of the Convention, which go contrary to the clear wording of Article 6 from which there can be no derogation. It must be emphasised that there can be no derogation from the Articles contained in this part of the section. Therefore, I think it might be true justice indeed if Britain brought us before the European Court of Human Rights for contravention of the Convention if we pass these Rules. I think it is nothing less than hypocrisy for us to bring another member state before the European Court and yet table in our own Parliament a statutory instrument which is in direct contravention of Article 6 of the convention.

I have also said that these rules would be in contravention of the United Nations resolution of August, 1955—the reference number is UN Document A/CONF/6/1 and X1 (a) —and it is entitled Standard Minimum Rules for the Treatment of Prisoners. This was a resolution adopted on the 30th August, 1955, of which Rule 93 is the relevant provision. It provides:

For the purposes of his defence an untried prisoner shall be allowed to apply for free legal aid where such aid is available and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal advisers may be within the sight but not within the hearing of a prison or institution official.

This is a clear statement of the minimum standards for the regulation of prisons, not the maximum but the minimum standards in a civilised society for the regulation of prisons.

The next line of argument against these prison rules is that they would appear to be contrary to the 1937 Constitution: contrary to Article 40, section 1, which provides that "all citizens shall, as human beings, be treated equally before the law." If one prisoner can have the legal adviser of his choosing and another prisoner cannot, then, I would maintain, that that is not treating vulnerable individuals, individuals who are in prison and who do not in any case have a full range of civil rights, equally among themselves, equally as a class before the law. Obviously, by the fact that they are in prison, prisoners could not expect to have the full range of fundamental rights which those outside prison have, but they could expect to have the same range of fundamental rights as other prisoners have. The invidious nature of these rules is shown by the fact that they would treat prisoners unequally in relation to their access to legal advice.

Also, I would maintain that these rules contravene Article 40, section 3, subsection (1), where the State guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of a citizen. In a case which I shall refer to later—the recent decision of the Supreme Court, in Walsh and McGowan against the governor of Mountjoy Prison—the Supreme Court accepted that the personal rights of a citizen included a right to legal advice and a right to be represented in legal proceedings. That case did not, in fact, turn on the constitutional issue which is before us; it turned on an interpretation of the prison rules as they exist at the moment. But a unanimous Supreme Court upheld the right of the two accused to their named solicitor and I presume that it is for that reason among others that the Minister has introduced this amendment to the prison rules which is before the House today.

The personal rights then include the right to a legal adviser, and I would maintain include a right to the named legal adviser if that named person is a legal practitioner, a solicitor or barrister qualified and entitled to practise in this country. That is the constitutional issue from the point of view of the accused, the prisoner and, of course, that is a very key perspective. There are also the constitutional rights of legal practitioners in this country and indeed the issue of the independence of the profession. The Minister by taking power to blacklist legal practitioners undermines their capacity to earn their livelihood; he undermines their professional standing; he undermines their good names. He does so, as I say, as judge and jury of the issue. There is no hearing; there is no opportunity for the barrister or solicitor in question to defend himself, to put up an alternate case to counter the arguments of the Minister. It is the Minister's opinion which is the final determinant, and the effect is to deprive a solicitor of full scope in earning his livelihood, to undermine his professional reputation in a very serious way indeed without any due process of law, without any rights to any hearing, without any recourse once it is done. If these rules come into effect and a prisoner is barred from having access to a named solicitor that named solicitor has no recourse from that. He has no way of vindicating his innocence, of establishing that the Minister is quite wrong in any opinion he may have that there is a security problem involved.

Therefore, I think this is very far reaching and that it is contrary to the personal rights of the citizens under the Constitution, and contrary to the guarantee that all citizens should be allowed to earn their livelihood as far as the practitioner is concerned; tantamount to depriving a person of his professional reputation without any hearing and depriving him, to some extent of his livelihood, without any opportunity of being heard in the matter. It is contrary to natural and constitutional justice to that extent. Fourthly, I believe that these rules would give the Minister an arbitrary and invidious power which goes beyond the particular problems which the Minister is trying to resolve. I believe that the power is much broader than what will be argued to be necessary to cope with the particular security risks. The power is one which allows the Minister to exclude certain legal practitioners and to limit the choice of prisoners as to the legal advisers which they may have. It becomes a permanent part of the law of the land if it is approved by the House today and comes into effect after the passage of the relevant time.

The individual who is deprived of his choice of lawyer will have no recourse. The facts that an individual is told: "No, you cannot have Mr. So-and-So as your legal adviser" presumes that the particular prisoner was going to abuse the relationship with his legal adviser either to pass out information or in some other way, and it is very hard to see how this is compatible with the presumption of innocence. I will come later to the security problem, which I acknowledge, but I think we must be very careful that we do not give as wide and as potentially arbitrary a power as this in circumstances where it could and might very well be abused in operation.

Having said that there are these four lines of argument on which the prison rules could be challenged, I should like to look at the background and at the motivation for bringing in the particular rules. The Minister will have an opportunity of giving a more accurate and fuller account of his motivation in bringing in these prison rules and I will have an opportunity then of replying to the points he makes. I should like to make it clear at this stage that I agree, and indeed all Senators would acknowledge, that it is a very difficult time in Ireland, that there is a serious security situation, that our democracy is to that extent at risk, that these are not "normal times", that it is a time when certain measures which would not be desirable or acceptable in so-called normal times have to be introduced. I fully acknowledge that fact, and I have sympathy with those who have responsibility in relation to security in Ireland at present because the problem is extremely difficult and extremely serious. However this is also a time for vigilance, a time for care that our civil rights are not unnecessarily eroded, that they do not become—as they might have with these prison rules—eroded without our knowing it. These rules might have gone without any debate in either House; they might have gone by default and have become part of the law of the land. Therefore, we need vigilance and we need to distinguish carefully between the steps which can and should be taken which are different from what would be acceptable in normal times. For example, anybody travelling on an airplane now submits to searchings, to body searches and restrictions. He does so in the knowledge that these are necessary, that they are part of the world we live in now. I do not believe that the problem which I shall discuss more specifically necessitates the exercise of the sort of discretion, the wide power which the Minister is looking for in these prison rules.

Indeed, if the Minister were to examine seriously the Prison Rules, 1947, there would be a great welcome in this House for a substantial reform of the prison rules. In his judgment in the McGowan and Walsh case, the Chief Justice, Mr. Tom O'Higgins, made this point. He felt that the prison rules should be amended and reviewed after being in operation for nearly 30 years. I would endorse that. The unanimous opinion of the Supreme Court on the interpretation of the rules as they stood at the time of the Supreme Court decision—and as they are now prior to this order possibly coming into force—was that the existing prison rules guaranteed the right to an untried prisoner of access to his choice of legal adviser provided that the govenor of the prison gave permission for him to see the legal adviser; (a) he could see his own named legal adviser and (b) he could see that legal adviser as provided in Article 210 of the Prison Rules, in the sight but not in the hearing of the prison officer.

The real danger of these new rules is that they would encroach on these two essential guarantees which are contained in the minimum rules and which are part of the Convention on Human Rights and Fundamental Freedoms. It is clear from the proposed new rules that the Minister might either ban a person entirely, or, alternatively, impose the condition that the consultation would take place in the hearing of a prison officer.

If we acknowledge, as I freely do, that there is a very real security problem with our prisons at present, a high security risk and so on, what then are the alternative measures which the Minister could have taken instead of the proposed new prison rules? First of all, it would be open to the Minister to initiate proceedings to have a solicitor struck off, or if it is counsel, to have counsel disbarred and then the appropriate procedure would take its course. It has been claimed that this procedure is cumbersome and slow, and so it should be, because if a solicitor is struck off or a counsel disbarred it deprives somebody of their livelihood. It is right that there should be deliberation about this; it is right that there should be a hearing and that the person involved should have an opportunity to present his case. What is wrong with these prison rules is that the Minister could short-circuit all those protections and ban a person from exercising his livelihood, from being a legal adviser, without any of these safeguards.

Secondly, the Minister could prosecute, for breach of the prison rules, if there is evidence of such breach.

Thirdly, if there is evidence to justify it, the Director of Public Prosecutions could charge the particular legal adviser with offences under the Offences Against the State Act—for example, if there is a charge that the level of involvement is such, with the offence of membership of the IRA, with possession of incriminating documents, with whatever is the appropriate charge in the circumstances. This would result in a full hearing in open court, in the necessity to present evidence and the necessity to establish the particular allegation.

Apart from these possible alternatives in the form of bringing charges against somebody whom it is alleged has contravened the ethics and code of his profession it is unnecessary to say that any practising barrister or solicitor must deplore the fact that it could be alleged in Ireland that barristers and solicitors may have, in the opinion of the Minister, been in breach of their professional code. The Minister would get the support of the House for measures such as, for example, the erection of a total physical barrier between a legal adviser and the high security prisoner. As it is, legal advisers visiting security prisoners submit quite voluntarily to being searched because they understand that this is one of the necessary requirements of the present time. So it would be open to the Minister to have a total physical barrier erected between a prisoner and a legal adviser through which they could communicate in the sight but not in the hearing of a prison officer. This would prevent any passing of documents or other matters which it is alleged may have taken place.

It is through measures of that sort that the Minister might have coped with the problem. Although it is a serious problem, although it is one which must particularly concern both branches of the legal profession in Ireland—I know they have expressed concern as they have expressed great dismay at these proposed prison rules—members of the legal profession would co-operate with the Minister and would welcome proposals which were not arbitrary and invidious in the way these rules are, proposals which would not allow for blacklisting of members of the legal profession, which would not allow differences between individual prisoners so that these prisoners would have their rights to their own choice of legal adviser curtailed, they would have a right to only a second or third choice of legal adviser under the conditions specified by the Minister.

The real problem is that this amendment to the prison rules gives a power to the Minister which goes far beyond the admittedly serious, but at the same time relatively uncommon—let us hope—problem of what is alleged to be a breach of the professional relationship between a legal adviser and a prisoner.

The Minister mentioned on a radio programme over the weekend that possibly three persons were involved, but at the same time he is seeking enormously devastating powers; he is seeking powers which genuinely could undermine the independence of the whole legal profession. If a barrister or solicitor is representing somebody in court and is not satisfied with the evidence, or wants to create a fuss in the interests of his client, will he be deterred from doing this out of fear that he may be put on a blacklist because he has created a disturbance and a nuisance to the authorities? I am not alleging that this Minister or any Minister would deliberately do this, but it is within his powers under these rules because the powers themselves are so far reaching.

I believe that at a time of great difficulty such as this in Ireland we need to approach the problem in a very different way. We need to reinforce the democratic structure and the democratic laws of the State. We need to create respect for our laws, respect for our prison rules, respect for the way we treat prisoners. This would go a long way towards genuinely improving the security situation. The time is ripe for radical new prison rules which would treat prisoners in a much more humane way, which would improve the access across the board to legal advisers. The general experience of legal practitioners is that it is far too difficult to visit prisoners—bureaucratic inconveniences are put in the way, letters may not be replied to, appointments are made for a particular hour and senior counsel sit around for two hours in the waiting room in Portlaoise with no explanation as to why they cannot see the person they have been briefed to represent. It is too difficult for prisoners to get access at present to their named legal advisers and I would urge this House, for the four points of the argument I put, to disapprove these prison rules.

Mr. Lenihan

I second the motion and I support it on very practical grounds which I should like the Minister to take into account in considering the opposition from the Fianna Fáil group on this. I would support the Minister for Justice in every thing that needs to be done to deal with surreptitious subversive exchanges between people visiting prisoners, making contacts and taking messages or anything of that nature to people outside. I can see the Minister's problem in that matter.

But is this the way to go about the problem? What is involved in what the Minister proposes by way of amendment to the prison regulations is a fundamental change affecting all legal advisers to all prisoners. We are talking here about the rule of law. We are not talking about, as the Minister stated last week, the problem of two or three solicitors, and they were his exact words on a radio programme last Sunday. If that alone was the problem I would suggest to the Minister that there are other more practical ways in which that could be dealt with. These rules will apply across the board to all prisoners and make a fundamental change in the prisoner-adviser relationship that has existed for a number of years. The proposed amendment of the rules reads:

The rules empowers the Minister to direct the governor of a prison to exclude for reasons of security a person, including a prisoner's legal adviser, from the prison or to admit a person only in such conditions or in such circumstances as the Minister may direct.

There is a global power right across the board, including subversive, and a whole range of criminals who heretofore have had the protection and the basic right—not alone a statutory right but a traditional common law right— to have access to their legal advisers or other persons who would wish to give them advice or help.

We are not dealing here with a section or subsection of the Offences Against the State Acts. We are dealing with a statutory instrument put down by the Minister dealing with the whole range of criminal offences for which persons may be detained and in respect of which they are entitled fundamentally under the common law, under the Constitution, under natural justice and under the European Convention on Human Rights, to legal assistance and help. It is in that context that I should like to put the question: why does the Minister see the need to adopt such a fundamental change in a basic human right as far as anybody detained is concerned for the sake of the two or three solicitors and two or three incidents involving a few subversives?

If we cannot deal with subversives without interfering with the basic rule of law, it is a serious indictment of the Government. There are ample powers under the Offences Against the State Act as it now stands to charge the solicitors if there are such solicitors, and I accept the Minister's word that there are, and I happen to know he is right in regard to one or two of these people, although proof is another matter. Is there not ample power under the Offences Against the State Act to bring them into court and charge them properly there? Is there not ample power—I am taking a totally detached view of this—within the Incorporated Law Society also to keep an eye on its own members? Is there not ample power under the ordinary criminal law for the Minister to look after these particular miscreants and people who discredit their own profession?

Between the Incorporated Law Society and their own professional rules and the ordinary law of the land and the Offences Against the State Acts there is ample scope for the Minister for Justice and the Incorporated Law Society to deal with these two or three miscreants whom he rightly condemned, and I join with him in his condemnation of them. But why breach the whole basis of common law, natural justice, our Constitution and the European Convention on Human Rights? Why breach the whole corpus of laws that we have built into our system where the ordinary person detained is entitled to advice, from a solicitor or otherwise?

That, in effect, is what the Minister is doing in this amendment to the regulations. The Minster is being empowered to direct the governor to exclude for reasons of security a person, including that person's legal adviser, from the prison or to admit that person only in such conditions as the Minister may direct. That does a grave disservice to the rule of law that we have enshrined here since the formation of this State. The representative of the Incorporated Law Society speaking on the radio last Sunday described it as using a sledge hammer to kill a fly. That is the sort of argument I would use myself. Is it really necessary to create such a breach in a basic human rights panoply for the sake of two or three solicitors who should be thrown out of their profession by the Incorporated Law Society or prosecuted by the Minister under the law of this land—either the traditional Criminal Law or the Offences Against the State Acts?

I do not think that "rule of law" is a cliché but I think the phrase "law and order" is a cliché because it is being much used and abused by the present Government. It is the sort of phrase that can be used by any petty, fascist or bureaucratic dictator. I am concerned about the rule of law itself being applied by the Government as well as being accepted by the people. We have built up a civilised society in this part of Ireland and we want to maintain it. We do not want to start imitating the bad habits that have been ordained by successive administrators, in another part of Ireland. We can handle this situation in our own way. It appals me that the Minister for Justice, with the apparatus and the whole forces of prosecution at his disposal, cannot deal with this matter other than by making this fundamental intrusion into the ordinary law of the land and the ordinary traditions of natural justice that have ordained that a solicitor and his client can meet to organise and discuss the details of a client's defence before trial.

I will go through our Constitution because it is quite clear that Article 40 guarantees that all citizens shall as human persons be held equal before the law. Article 40, Section 3, guarantees that the laws shall defend and vindicate the personal rights of the citizen. The two sections I have just referred to may appear to be relatively general. I am certain that in interpretation they would bear out what Senator Robinson has just stated and what I state. I refer in particular to a much more positive statement in a document which is much more up to date than our own Constitution and to which we have subscribed— Article 6 (3) of the European Convention on Human Rights:

Everyone arrested on a criminal charge has the following minimum rights:

(c) to defend himself in person or through a lawyer of his own choosing.

This action of the Minister in effect deprives that person of being defended by a lawyer of his own choosing. There is no question about that. One has only to read the two in juxtaposition and one sees straight away that if the Minister can direct the governor of a prison to exclude a prisoner's legal adviser from the prison—that is the power being allowed to the Minister under this proposed amendment to the rules—it is quite clear that that power contravenes the specific provision in the Convention on Human Rights guaranteeing the prisoner the right to defend himself in person or through a lawyer of his own choosing.

The right to have a lawyer of his own choosing is being taken from him by the Minister's amendment which deprives him of having the lawyer of his own choosing because the Minister may exclude that particular lawyer for reasons of security. Security is different from law. This is a very dangerous abnegation in my view that the Minister and the Government seem to be drifting into. It is a confusion between security and law and between law and order and the rule of law. Law and order and security can be used by Nazis and facists and communists and all sorts of pretenders to power.

I do not want to see the democratic leaders of this independent State using and abusing phrases like "law and order" and "security". We are not talking about law and order here. We are talking about the rule of law which is enshrined in our Constitution and to which the Government are equally a subscribing partner as well as the people as a whole and the courts. If we are going to have a situation where security is regarded as a reason for breaching the rule of law and the guaranteed relationship written into the Convention on Human Rights, into the Constitution, into our common law and statutory law and into the whole tenets of natural justice, and if we are to have security as an excuse for depriving people of the basic rights under the rule of law, then we are into a very dangerous grey area. We are into the area of a totalitarian State.

Let us be serious about this. These things have a habit of drifting. It is up to us to set a good example. I would not mind doing this if this was a serious matter. If it was a matter of 200 or 300 solicitors doing it, if it was a matter of a whole solicitors' profession being corrupted, if it was a major matter which involved the corruption of the prison service and the security of the State, I would tend to go along with the Minister. But the Minister is talking about only two or three solicitors. If the security apparatus of the State cannot deal with two or three solicitors then we have no security along with having no rule of law. The rule of law is not designed to deal with exceptional cases. I do not have to quote the old cliché about hard cases making bad law. The legal system and the rule of law were never designed to chase after every hare that went wrong. That was always left to security. That is what security is about Security is about chopping down people who engage in all sorts of activities outside the rule of law.

If we are to start confusing security with the rule of law and importing security reasons into the reasons why the Minister for Justice may decide that a client in prison may not have his legal adviser, that not alone debases the rule of law but debases security. If the Minister for Justice is doing his job and if the security forces of this State are doing their job there is no need to prostitute the rule of law in the interest of security. The security apparatus should be able to look after security and particularly if there are only two or three solicitors involved, to quote the Minister on the radio programme last Sunday. If there are only two or three solicitors involved then it is a total abnegation and admission of the fact that there is absolutely no security in existence if the Minister's own security forces and security apparatus cannot organise a situation where three solicitors can be dealt with under the whole panoply of law and prevention of crime that is available to the Minister.

I want to draw a very real distinction between the two functions of any Minister for Justice in this democratic State, on one side, the security functions and on the other side the functions of law and order and the preservation of human rights. As far as the preservation of human rights is concerned the fundamental right is that anybody detained can have right of audience with his or her legal adviser. It is a fundamental right written into prison regulations in what were often described as Victorian times. The right was written in as far back as 1877 in the originating Act under which these regulations were made. It has been in existence for 100 years. It is based on the common law prior to that and written into our Constitution since then and written into the Convention on Human Rights.

This whole apparatus of basic human rights is now being breached for security reasons. I would suggest that that means one of two things—a total blind spot as far as the Minister is concerned in regard to what is the rule of law and what it means, or total incompetence on the part of the security authorities. Rather than breach this fundamental right that exists between a person and his or her adviser the Minister should set his security forces in action. He should avail of the police force and the Army and the Special Branch and the whole range of the Offences Against the State Acts and the criminal justice procedure that he has available, plus the personnel to deal with the two or three persons involved.

I would not dream to call myself the merest minion in the security forces of this State if I knew the names of the two or three solicitors involved and was not able to advise the Minister or his security advisers on how the two or three people should be dealt with. It is an insult to the security personnel of this State. It is an insult to the rule of law and the practitioners of law that the Minister should introduce this fundamental breach of the fundamental right of liaison and advice between detained persons and their advisers because of the incompetence of his security advisers, of the incompetence of himself or the existence of a completely blind spot or blank mind. That is the implication of what the Minister is doing in this amendment to the regulations. This is the mountain labouring to produce a mouse. If all this is in the interests of pursuing this law and order mocking bird around the place, is it all worth it?

Let us get down to reality and deal with the two or three solicitors involved. Let us get on to the Incorporated Law Society. Let us get on to the security forces. Let us get on to the forces of the criminal courts and the agencies available to bring prosecutions before the criminal courts and the Special Court. Let us get on in this way and deal with these two or three malcontents or miscreants who are disgracing the profession and inducing the Minister for Justice to bring about a basic breach in the whole fundamental law of human rights in the State. Let us have a sense of perspective about it and behave properly.

In the pragmatic and practical way I like to talk, this is much ado about nothing. But unfortunately it is doing something that is fundamentally wrong on the basis of two or three solicitors misbehaving themselves. If we are reduced to this state, to riding a coach and four through a fundamental law of the country in order to enable the Minister to restrain two or three solicitors whom he cannot handle through any other agency under his purview, then in my view it is serious and at the same time laughable, or a combination of both. The Minister is making a fool of himself and in doing so is creating a serious situation as far as the basic fundamental human and civil rights are concerned, which should always be there as a central part of our jurisprudence.

Mr. M.D. Higgins

I cannot vote against Senator Robinson's motion for a number of reasons, which are quite different from those offered by Senator Lenihan. Senator Lenihan spoke of law and of justice. He used somewhat loosely the terms "law" and "legality". Since I came into this House we have not had an opportunity of noting the distinction between law and justice itself, of seeing what in fact masquerades as justice and what has been referred to as systematic degradation ceremonies. I would have preferred if this afternoon we were discussing major reforms of prison legislation which would enable the conditions of prison visitation to be amended.

The last speaker mentioned the civilised society we have. With respect, it is not civilised in its treatment of people before the law. Any person who has the fortunate training such as myself knows that the law as it is structured, or rather the operation of the law, mitigates heavily against those in the lower social stratum, against the people who are unfortunate in not having possessions or rights of an economic kind. The law itself is an illustration of an unequal and degraded society, a society which has degraded itself.

I wish to turn specifically to the reasons I could not vote against this motion. In my view, the 1937 Constitution is a flimsy document. In its very flimsiness it makes reference, in Article 40, section 3, subsection (1), to fundamental rights of the citizen. I have never been over-enthusiastic as to the rights that are, either written or unwritten, conferred on individuals. I do not want to be confused on that point. In so far as this flimsy document is concerned my view is that the argument against the motion would be the suggestion that the balance of circumstances, put more particularly the threat to security in the State at present, outbalances these guaranteed provisions of the Constitution. An Act of legislation is a balancing of what is at stake. The circumstances that exist in which human life is not valued is something I do not want or never have wanted. I might say that human life is not very much valued by the institutions of our society, a point frequently forgotten by those who point to the violence which is rampant and which is plainly seen by those who find themselves before the courts.

It is extremely dangerous to speak from the position from which I speak, to be seen as a Provisional IRA supporter in any way. I do not and have never supported movements which do not value human life. A State is effectively balanced by the quality of the corpus of law which it has available to it. We have available to us a number of opportunities. We have chosen to ignore most of the opportunities of legislating positively for improved conditions in our society. This is so particularly in the realm of prisons. We need new and imaginative legislation. Prisons have been called into question as to their effects and have in fact produced a curious kind of violence themselves.

We will be judged by what we do. We have not used what the Constitution has allowed us. We have always had its guarantees of what there was to fall back on. Wheare, in Modern Constitutions, writing on the function of constitutions, answering the question as to how we might classify a Constitution, had this to say:

From the very nature of the Constitution it must follow that it has superiority over the institutions which it creates. That is the whole idea of a Constitution. It is not just an ordinary law. It is often prior in time to the legislature. Even if it is not, it is logically prior. Its function is to regulate institutions, to govern a Government. It cannot be construed in the same way and upon the same principles as the law to regulate the licensing of dogs.

I suggest that the balance which will prevail when the Minister has acquired this new power will have put circumstances and the adjustment to circumstances as represented by a statutory instrument invoked under an act of law before such constitutional guarantee as existed, particularly in Article 40, section I and section 3, subsection (1). That is a serious reversal of priority in the history of law in this State. It is something important as well for those who would suggest that we are living at a time when security is called into question. I frankly confess to feeling this lack of security for a number of reasons. I share the view of those who feel that human life must be protected.

There is another insecurity which I also sense in the State, and that is the insecurity of reaction itself. Already there are present within our society massive forces of reaction. Institutions have in the past utilised reaction to defeat informed legislation. This House has been practically called into contempt by the Bishop of Limerick, Dr. Newman, only a week ago, when we were told we should legislate for his particular Catholic moral code. This is, in effect, what we were told. If we want it, there is insecurity to extend to anybody who is within this House and who wants to legislate within this Constitution by such acts of a right kind as much as other acts.

In summary, my reasons for having reservations about the Minister assuming this power are that on the balance of circumstances and constitutional guarantees this assumption of new powers will be regretted, and that the quality of our law will suffer. I will also argue specifically on the document itself which is before us for the reform of the rules. Subsection (3) reads:

The powers conferred by Rule 2 of these Rules shall not be so exercised as to prohibit or restrict visits from so many members of the legal profession as to deny to a prisoner a reasonable choice of legal adviser and legal advice given by such adviser in the sight but not in the hearing of a prison officer.

I suggest that this is not a sufficient caveat to the prisoner. The assurance is almost in the number of people within the practice of law itself. Even in the number of people within the practice of law, we all know that there are lawyers who will not handle certain kinds of law. Again, if I were to be specific I would appeal to the Minister to limit what he is suggesting, if necessary, by time, because if he limited it even by time then one could say that when the great threat to security had disappeared the Minister of the day would have to come before the Houses again and seek power to limit it to specific abuses or even to people to whom specific abuses can be related.

I could summarise all of what I have to say and my reaction to the constitutional guarantees as they are contained in Article 40 by simply saying this. It is at a time like this that civil rights are easily eroded. The history of civil rights is that their erosion is easy and that winning them is extremely difficult. Far too often in times when the security of life is threatened, people have used these very insecurities to throw away very many hard-won rights. It is for all of these reasons that I will not be voting against Senator Robinson's motion as proposed.

Dr. Browne

I should like to support the contributions which have been made so far and, of course, Senator Robinson's motion rejecting the Minister's proposals. Senator Michael Higgins in his very moving contribution made the point that civil rights are easily eroded and that winning them is very difficult. This seemed to be a particularly apposite remark in the context of our whole struggle for freedom, our struggle to find ourselves where we are just now. Centuries of struggle went into the winning of the civil rights which the members of this generation, the successor to the generation which won civil rights for us, is now presuming to set about the erosion of these civil rights in a very fundamental way.

For all of 30 years now I have been protesting to various Ministers for Justice about the practices in relation to our prisoners, starting many years ago when I had joint responsibility for the implementation of capital punishment on two occasions, when I did my best to protest at and reject that evil practice carried out at the insistence of the then Minister for Justice. The case I have made consistently to the generation preceding the present Minister has been my astonishment at the fact that most of the men who have held the post of Minister for Justice were men who had suffered in our jails, men who had known the humiliation of the deprivation of liberty, the appalling fear of being totally subject to the whims and gross injustices of one's jailor. While I have watched over the years what I believed to be the total failure of our successive generations to create a socially just society in the other spheres of our life, it always seemed that it would have been very simple indeed to introduce some modicum of humanitarian attitudes in relation to these, the most totally dependent sector in any society, those deprived of liberty within our jails.

As one reads through the prison rules, 282 of them altogether, one is just increasingly horrified and shocked to find that we could still treat our fellow human beings as we do in these jails—total humiliation, deprivation of rights, this awful factor running right through the prison rules which the Minister himself once summed up in his phrase "They have no human rights, just privileges", an extraordinarily archaic concept of the rights of individuals, fellow human beings. From his functions as Minister for Justice he at least ought to know, or have taken pains to know, something about the whole psychosynamics of criminality, why these poor people become prisoners, the origins usually being social and economic, all crimes being crimes of society in the final analysis. There are so many of the rules to which the Minister could have turned his attention and he chooses simply to deprive the prisoners of this last right, the right to choose their legal adviser. Senator Robinson has argued with her usual precision and clarity on the legal basis, on the Constitutional basis, on the basis of human rights. I certainly cannot add anything to what she has said.

Watching this Government during their three years of office has challenged one's capacity to believe that it would be possible for human beings to stray farther and farther away from the precepts which they themselves laid down when they were in Opposition, particularly on this matter of what they now call law and order and justice. I was one of the people who said that I excepted nothing whatever from this Government in relation to social and economic matters. That is not relevant now. But I did have a sneaking feeling about it having listened to, in particular, the present Minister on many occasions talking about the law, talking about the iniquity of the legal system, and the interventions of another member of the present Government, the Minister for Posts and Telegraphs, Dr. Conor Cruise-O'Brien, who I see is a party to this, and the present Attorney General, Deputy Declan Costello. From their protestations throughout their lifetime in Opposition these three people gave us to believe that, whatever else they might not do, they might make some advances in relation to some of the truly terrible laws which are on the Statute Book, laws which they, one after the other, condemned with the remarkable eloquence and invective which some of them can command when they are safe in Opposition. Watching them now, with one's disbelief being tried and tried again, is taking on the quality of a nightmare in which one is faced with all the most extravagant slanders of the layman about the politician——

An Leas-Chathaoirleach

I am sorry to have to interrupt the Senator, but the motion before the House is very confined. The Senator's remarks are very wide of what the House is to discuss today and I would ask him to confine himself to the specific motion.

Dr. Browne

——about the politician's capacity to betray former statements he made when he has the power, which the present Minister has, to carry out his protestation of concern for prisoners. As a legal man himself, the Minister must know quite well that depriving the individual prisoner of the right to call on the legal adviser of his choice represents a very serious incursion into the civil rights of the individual as well as, I have no doubt, into the civil rights of the particular lawyer concerned.

The Minister has said that he did not see the proposed alteration as an encroachment on the prisoner's rights. How on earth can he sustain that argument when he is removing a right which is already there under the prison rules? Senator Lenihan referred to the very wide repercussions of this rule, that it will cover very much more than the people with whom it appears the Minister is concerned, the Provisional IRA and their associates. The individual prisoner is being deprived of the right of access to the individual who may help him to get out of the appalling dilemma in which he finds himself. This is a right which he enjoys under British law; it is a right which he enjoys in the North of Ireland, and in the proposals under the EEC rules.

The Minister has said that on a number of occasions some members of the legal profession have abused the privilege which normally attaches to legal business in order to take letters from one subversive to another. He has been asked, and I should like to ask him again, why he has not instituted legal proceedings against these solicitors. I remember well listening to him talking about the danger of accepting hearsay evidence and how unwise it was to accept hearsay evidence. Is it not a fact that the Minister is satisfied that he cannot sustain a case in the court against the two or three solicitors whom he knows to have broken the law? Is the consequential implication of his failure to take legal action an implication against the courts and the whole judicial process? Why is he effectively protecting these people from the process of the law if they have committed a crime? The Minister then suggested he would take up the matter with the Incorporated Law Society who, he was sure, would deal with it. If that is so, if the Incorporated Law Society are going to deal with this matter and, he believes, satisfactorily, what is the purpose of this motion? Presumably, if the Law Society deal with the matter satisfactorily, these people will be disbarred and there will be no further need for any concern about solicitors visiting their clients.

Is it not a serious implication against these solicitors and lawyers, who are known to some people, that over them is hanging this implicit suggestion that they have been in breach of their own professional responsibilities as lawyers? Is it not only right that the Minister should take whatever action is open to him as Minister for Justice? I remember Deputy Dr. Conor Cruise-O'Brien telling the last Minister for Justice that under, I think, the Offences Against the State Act the police had more powers in this country than in any other country in western Europe or the United States. If that is so, why have we got this new additional power? Why do we need this new additional power?

Surely the Minister must agree that it tests the credulity of Senators to suggest that because there are three people out of 1,500 whom he cannot trust he has to take this action. Is this action likely to be restricted to merely the solicitor, solicitor's clerk, various other people that might visit an individual in prison? Is it not the general principle that hard cases make bad laws? Does that not apply in a situation like this where the Minister had decided that because he has not enough evidence which would justify taking the case to court in the form of a criminal charge he is taking this very serious consequential action that is going to have such wide-reaching effect for all the prisoners in our jails? It seems that one of the proposals which is included, that the lawyer may be allowed to see a prisoner in sight and in hearing of the prison officer would obviously mean again a very serious discrimination against the lawyer concerned. It would be very difficult for a prisoner in the presence of the prison officer to put his case, fully and frankly with all its implications, giving names and with the possibility of implicating others, and putting the lawyer in the position of being overhead by an individual whose job it is to report back to the governor and indirectly to the Minister, which again puts the warder in the position of having to decide what is criminal conversation, what it is that he should report back to the governor. In that way he implicates the lawyer in whatever criminal activity the prisoner has been or may have been involved in.

I hope the Seanad will see the great dangers involved in this amendment and will decline to support it.

Mr. Alexis FitzGerald

I seem to be out of sympathy, at least with the conclusions of everybody who has spoken so far. I entirely agree that it was an exercise in vigilance of Senator Robinson and Senator Eoin Ryan to put down this motion. I think it could have led to a valuable debate and it may yet be that such valuable debate will develop.

I am in total support of the Minister in the decision he has made in the circumstances, which I accept are undoubtedly existing in this country, and which Senators Robinson and Lenihan recognised. On this matter I personally stand shoulder to shoulder with them. If it be, as I do not think it is, that this is ultra vires, soon enough we will find out by due process of law, whose validity and usefulness is questioned by one Senator, which is merely apparently a part of the charade of democracy to which another Senator has frequently referred in previous speeches in this House. The Minister did not lightly amend the rules in regard to prisoners which Senator Browne referred to almost correctly when he said there were 282; there are 281 but that does not matter. He did not lightly amend the rules that were made in 1947, and if he did amend the rules, what caused him to amend the rules? If he is forced to take a step—and we have not yet been told by the gentleman who was described as the representative of the law society in telecommunications and who was not the representative of the law society—we have not yet been told what advice the law society has received on that matter or what the courts may finally decide are the rights and the wrongs about this. But this House, one of whose Members was murdered only two years ago, should remember what steps had been taken and which have led to the Minister making this order. Was the method chosen by him? I am not the Minister for Justice, who is in this country Minister for the interior as well as Minister for all the other problems of justice to which he could give attention. Senator Browne is right when he refers to the regrettable dedication of the Minister's time to the problem of combating the illegal activity which does not hesitate at being judge, jury and executioner at the same time without any attempt to defend.

However, I am not going to rest my opinion merely on an assertion. The Minister amended rules and has done so, I imagine, with the greatest of reluctance, because undoubtedly some persons—and I think he is reported as having said two or possibly three —have acted in such a way that he has chosen to take this step to cope with the problem. He cannot have done that lightly because he must know the consequences for these persons cannot be good unless "Show me your company and I will tell you what you are" and maybe your company will like you the better for being defined as being exactly what you are like. I do not know anything about the persons who are mere names to me, every one of them.

The alternative offered by the so-called representative of the law society on telecommunication was, report them to the law society, prosecute them, take all necessary steps, destroy their careers and the law society will be delighted. The law society would not be delighted to destroy any man's career. That is no alternative that the Minister can wish to adopt. The Minister, as I read his order, has sought to preserve what is in the existing rules with regard to choice of legal advice and in regard to legal advice. As I read his powers he need not have done so. I do not understand any principle of the common law as obliging him to do so. I do not think that the Constitution will find that the basic authority under which he made this order is unconstitutional. Maybe it could be said that this is a defect in our Constitution. When I hear people talk about hypocrisy when was the voice of Senator Browne raised in this or any other House at citizens being pushed into psychiatric hospitals for treatment because they spoke their minds and expressed their opinions freely, as freely as I hope he will long continue to express his in this House and everywhere else? I hope that if any of us who opposes the Minister in this measure ever suffer any consequence from it, it will never be to be silenced; that it will be some other part of our bodies which will be damaged. May they finally admit to agree that we are faced with the situation of strong measures of opposition to what is sneered at by someone as law and order. What else do the people want but law and order? I do not find what the people want as a force of reaction.

Mr. Lenihan

Bread and circuses.

Mr. Alexis FitzGerald

I beg the Senator's pardon.

Mr. Lenihan

Bread and circuses.

Mr. Alexis FitzGerald

I thought Senator Lenihan and I engage in such mutual respect that he would have spared me the experience of that remark. I do not know what the Senator means by bread and circuses. I do not think the Minister is here enjoying this as a circus and I am not trying to perform in a circus.

Mr. Lenihan

It looks a bit like it.

Mr. Alexis FitzGerald

I am going back to the sections of the Act which the Minister is operating, sections 12 and 13. It is quite clearly stated that the Minister in this context may:

...make and when made may from time to time repeal, alter or add to special rules.

Let us look at the special rules. With respect to communications between a prisoner, perhaps he is entitled to say that particular person's solicitor and friends so as to secure to such prisoner—listen to the qualification—as unrestricted and private communication between him, his solicitor and his friends as may be possible, having regard only—which is what the Minister has done—to the necessity of preventing any tampering with evidence and any plans for escape or other like considerations. Under the Council of Europe Standard Minimum Rules for the Treatment of Prisoners rule 93 states:

An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and to hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of the police or institution official.

The Minister has sought to impose a restriction on his exercise of the power under rule 2 which provides that this power shall not be so exercised as to prohibit or restrict visits from so many members of the legal profession as to deny to a prisoner a reasonable choice of legal adviser— legal advice given by such adviser in the sight but not in the hearing of a prison officer.

It is right that Senator Robinson and Senator Ryan should have put down this motion. It is right when we are forced by the people who were challenging the right of Senator Browne to a seat in the Seanad, the right of any of us to be here, the right of the Seanad and Dáil to exist, the right of the people freely to choose Senator Lenihan, Senator Michael Higgins, the Minister for Justice, the Cathaoirleach, the right of the people to make their free choice and follow whatever policy they like and who are prepared to go out kidnap, rob, murder, maim, without any power of anybody to choose, not merely a legal adviser but a gunman to defend him.

A Senator

Hear, hear.

Mr. Alexis FitzGerald

It is not one army, but armies fighting against armies. At this stage we do not know how many armies there are and I do not think they know. Let this go to judges who are unafraid, as I hope we all are, of all these armies. Let this go on to the Constitution or to the council or the law society. Let us get a decision on it.

Meanwhile, are we to leave the Minister for Justice unrestricted in choosing to do what, according to the best advice he has got, is necessary to guard the people and the institutions of the State; to guard the freedom of the choice of the people and to react or to go progressive if they wish and follow Senator Noel Browne or myself or anyone else?

These are the rights of the people which cannot be got rid of because rights are not as extensive as Senator Higgins wants them to be. Why has social reform been faltering? Why in the last 30 years have we not made more progress in law reform? Because the Ministers for Justice during most of that time have been occupied with this problem. This problem is the one we must solve as a free democracy if we want to improve prison conditions; with fewer people in prison and proper conditions for people to live in so that these conditions do not lead them into crime. It has been said "violence changes society". Violence does change society. It makes it more violent. That is the only effect of violence. If this represents institutional violence, what has created it? If we are forced to be less generous to all prisoners, to anybody in a position of suspicion, what is the reason? We are so forced by their actions, actions which imperil the essential freedoms and civilisation. Compared to many countries we are very civilised.

I want to read some passages from a journal. I will lend them to any Senator who wants to look at them. "Soviet Unofficial Art", "India's Clampdown", "Turmoil in Portugal", "TV and Politics in France", "Chile's Brute Burning and Brutality", "Stalinising Yugoslavia", "Press Under Martial Law", "Lisbon, What Next?"

Mr. Lenihan

We do not want them.

Mr. Alexis FitzGerald

If I may continue.

Mr. Lenihan

The time is limited.

Mr. Alexis FitzGerald

"Tortures in Brazil." These are journals which judge with total impartiality and total end objectivity the performance of all the tyrants in the world. This is a society which has no tyranny, neither a tyranny of the Right nor a tyranny of the Left and unless we fight for it we may lose it.

Mr. Lenihan

Let us keep it that way.

Mr. Alexis FitzGerald

Let us keep it that way by having the wit democrats must have to be as tough as their opponents. That is why I support the motion.

Dr. Browne

It is a victory for violence.

Mr. Lyons

I talk about this as a layman and not with the legal knowledge that most of the previous speakers have. I am in favour of the Minister's regulations. Senator Robinson is very jealous of her own legal profession and of their rights and responsibilities, and rightly so. She appeared to be more concerned with the rights of the legal profession than she was about the prisoners. We all know the liberalism of Senator Noel Browne, the humanitarianism which is genuine, and we all admit it. Sometimes it might lead him into some woolly thinking.

The reaction of Senator Lenihan was purely political. This is what one always expects from an Opposition, that they will oppose, and I think he was speaking with his tongue in his cheek for a considerable time. Senator Michael D. Higgins made his own contribution but I found if difficult to tease out what he was talking about.

I want to echo what Senator Alexis FitzGerald has said: that if there was not a reason for this the Minister would not be here to bring in new regulations. Everybody here knows that being jealous about the rights of prisoners and forgetting the rights of the people is not on. The rights of the people through a ballot box is what we have to preserve and not the rights of a thug, a bank robber or a gunman. These people's rights may be preserved by the courts. Many times in the past the courts have found it difficult to condemn these people or to find sufficient evidence. We have set up special military courts because due to intimidation the evidence could not be found in the ordinary civil courts for conviction.

We do not want to see that kind of intimidation in this country again, and we never will. We will never have it while the present Government are in power, while the people who support the Government will be able to come out and say that we are not going to accept thuggery, we are not going to accept the fact that some little pup can take a gun and rob a bank, sometimes for his own sake but in the name of republicanism, in the name of freedom; or that they can tie up people in their houses and flog them half to death and take away whatever little money they had saved during their lifetimes—and this is done in the name of freedom and republicanism. When they are eventually caught and put in prison, immediately they want the Gresham; they want the best food; they want their own clothes; they want television; they want to be in a special category. When they do not get what they want they tear down the prisons, they break the furniture, they attack the people who are there to take care of them. If they get recreational facilities they use these to break out of the prison or to attempt to break out. Their visitors and legal advisers come into the prison and take in explosives.

The prison break of 19 of these people—they laughed at the law and had their subversive newspapers laugh at the law, at the prison system, at the Minister for Justice, at the Government—was possible because they were able, through the co-operation of the people who went in, to break out of the prison. Then, what do they do to the prison officers? They boo them every day, they spit when they pass them in the corridors, they use every method to intimidate them and to frustrate them in their work. They claim that the prison officers are sadists. The sadism can be on the other side also.

An Leas-Chathaoirleach

Senator Lyons, I had to draw the attention of the previous Senator to the very confined motion before the House, and I ask you to restrict your contribution to the actual motion and the instrument before the House.

Dr. West

Senator Lyons is an expansive man.

Mr. Lyons

I was trying to justify the Minister's action in this case by——

An Leas-Chathaoirleach

I am sure Senator Lyons knows the rules of debate.

Mr. Lyons

——posing the question that all this is necessary because of the facts that I am attempting to put before the House. I will not take up much more time. I know that some Senators, particularly Senator Noel Browne, have the idea that there should have been prison reform over the past 50 years, 30 years or maybe over the past 15 years and that this prison reform should not be punitive at all—a man should be put at his ease when he goes into prison and he should be provided with educational facilities. He should be educated and talked out of whatever was responsible for him breaking out as a criminal, whether his mother in her eighth month saw a red cat crossing the street, or daddy got drunk one night——

An Leas-Chathaoirleach

I must interrupt the Senator again. He is going outside what is on the Order Paper.

Mr. M.D. Higgins

The Mayo school of sociology and psychology.

Mr. Lyons

Some of the attitudes taken by people who want to change the prison system are as daft as that.

Dr. Browne

A man called Christ——

An Leas-Chathaoirleach

Senator Lyons, to continue.

Mr. Lyons

Where you have the open prison system and you get somebody brought in and he is allowed to go out, a rapist is brought in, he goes out and commits four or five murders——

An Leas-Chathaoirleach

We are discussing a motion dealing with the statutory instrument. It is not a general debate on the whole prison system in this country.

Mr. Lyons

This idea of reforming the prison system is due for a change, because the people who are examining it now know that the prison must be punitive, that if a criminal does something criminal he must be punished, and there is no such thing as handing out whatever he wants recreationally just because something happened that caused him to become a criminal.

I want to see the Minister having the power to ensure that nobody who goes in to see a prisoner is going to take out, verbally, anything he has to say that might help him to make a breakout. Who is going to say, as has been said here "Why did the Minister not prosecute such individuals because they did such a thing?" That would only be closing the stable door after the horse was gone. You must ensure that the stable door is closed before the horse gets out at all. In my opinion the Minister is taking the proper attitude in ensuring that these people will not get into the prison in order to take out letters or anything else that might mean that the subversives would have a chance of breaking out, or indeed engineering an escape.

Dr. West

I support Senator Eoin Ryan and Senator Robinson in their motion. Having heard two Members who support the Minister and his proposal, I have yet to hear a reasoned argument.

Senator Lyons has just said if there was not a reason for this the Minister would not be here. He did not tell us what the reason was. I did not follow Senator Alexis FitzGerald. I always enjoy his speeches in this House, but I was not able to understand why he felt that this statutory instrument was necessary and why the few individual cases could not be dealt with under normal procedures open to the Minister. That is what I hope the Minister will tell us.

I am under no delusions about the difficulty of the Minister's job, about the difficulty of the prison staff while such a large number of IRA sympathisers or activists are in the jails. I have every sympathy for the people who work in these difficult situations with difficult individuals and difficult organisations. I do not make any distinction between the military and political wings of these organisations. Any distinction which is made is absolute baloney and eye-wash. If you are a member of one of these organisations then you support the guns.

However, I realise the difficulties of prison reform and the difficulties of maintaining the prisons with such an artificially swollen number of inmates. The problems caused by the IRA have seriously curtailed the rights and have meant a serious deterioration in the conditions of the other prisoners. I have never supported those people who take the law into their own hands by the use of the gun. I also realise the problems which the Judiciary face and which have had to be overcome by the formation of the Special Criminal Court to deal with the situations arising from IRA activity. At the same time I cannot see why the present situation has to be dealt with by a special statutory instrument and why the miscreants, small in number, could not be dealt with individually, prosecuted under one of the laws as they stand, and if necessary brought before the Special Criminal Court if there is a problem of membership of the IRA. I have not been convinced by anything that Senator Lyons and Senator Alexis FitzGerald have said to the contrary.

I am against blanket prohibitions when there is a small number of specific cases to be dealt with and when they can be dealt with in the normal way. I should like the Minister to make it absolutely clear why the normal processes of law and order cannot be used to deal with a situation which, on his own admission, involves such a small number of people.

I should also like to know why the problem cannot be overcome by the erection of one of those barriers such as are common in post offices in the cities—perhaps not in the country where the numbers using post offices are much smaller—through which you can speak quite clearly and distinctly but through which you cannot pass any objects, messages, letters or any physical object. I should like to know why the interviews between prisoners and their relatives or between prisoners and their legal advisers could not take place across such a barrier, which would seem to me to be a simple matter to erect and which would effectively prohibit any passing of messages, letters or other substances. No reason has been given so far for introducing such a blanket statutory instrument and why the processes which are already there cannot be used to deal with the problem we are discussing.

Mr. Butler

I am here elected by the people to see that the security of the State is upheld. There is no doubt in my mind that the rules now being proposed by the Minister are the rules that are needed. It has been said here that the security of the State has been in danger. One of the points that may not have been raised is the time factor of bringing those people to law, and the right of those people to appeal further to a higher court. It may take months or years, and because of that time factor the security of the State would be at risk. If information was taken out of prisons by so-called lawyers—Senator Lenihan admits that some of those people have been involved in this type of affair—and given to those bodies who do not recognise and have condemned the State and whose members would shoot to kill innocent people, in that situation is not the State in danger? Of course, it is. Every minute after that information has come out people are in danger. We are elected to see that those people are safeguarded. That is our duty.

The rules are there to prevent this happening. We are elected to prevent what has happened in the other parts of the country happening here—and it has happened even in the Twenty-six Counties. Some of this has happened because information has come out of the prisons from people who are rightly in prison and who should be left in prison because they have already caused untold suffering to many families in the Thirty-two Counties. We are elected as Senators to see that the security of the State is upheld. As an elected Senator I shall do my best to see that that is upheld. If it is a fact— and it has been proved a fact and has been admitted by the Opposition—that there are lawyers going to meet those people and taking out written information, then something must be done about it. The Minister is trying to do something about it today. There are Senators on the other side of the House who are trying to prevent him from doing it. They are trying to delay——

Mr. Brennan

No, no. They could be prosecuted.

Mr. Butler

I ask the Senator: how long does it take to process anything like that when they have the right, first of all, to be brought before the courts, and if found guilty they have the right to appeal? That takes time. They have the money to do that. They have the money to prolong the case. The security of the State is definitely at stake in the meantime. What the Minister is doing is right and I am proud he is doing it.

Dr. Martin

In a nutshell my objection to these rules is that in the first place they are bad laws and in the second place, they are so obviously unnecessary. If a change of law of this magnitude, a change of law which has these extraordinary dimensions to it, takes place it should be under enormous pressure and in the face of very exceptional circumstances. I do not think these circumstances exist. By saying that I am not saying that the State is not under threat: it is under threat from all kinds of subversives, terrorists organisations, Provisional IRA, Official IRA, and every valid and proper means should be taken to avert and destroy their threat to the ordinary lives and liberties of the people.

It can be said that quite extraordinary measures have been taken. I have found myself opposing some of these and opposing them largely on the grounds that the laws themselves constituted threats to the liberty of the individual. That is not to say that I have not extraordinary sympathy for the Minister and for the Cabinet in dealing with this state of emergency. I recall very distinctly when the Special Courts were set up by the previous Government that I found them repugnant. I remember trying to get people to sign a petition about it. I remember meeting a colleague of mine in UCD and I asked him to sign. He refused to sign saying he thought the law was damnable but necessary. I respected that view and I respect the view of people who sincerely go about their business in response to their deep convictions. I recognise the conviction, the passionate desire for law and order and peace achieved through law and order, as a conviction that is of the highest moral respectability.

I found myself opposing the Criminal Law Jurisdiction Bill. My chief reason for opposing that was that we were entering into co-operation with forces that I did not deem to be respectable, the RUC and the UDR, that our laws were going to mesh with them, and that we who have a reasonably clean record in regard to our judicial system would be on the road to spoiling that record and ruining it and contaminating it by that kind of co-operation.

I object to this measure because it takes us that little bit closer to the situation in Northern Ireland. It moves us a little closer to the point at which the rights of the individual or the privileges of the individual, the prisoner, are more and more eroded. This is one of the problems that arises when the desire for law and order begin to reach rhetorical proportions. I share Senator West's disappointment with the case made by the other side of the House today.

Senator FitzGerald began by regretting the fact that we did not have a valuable debate and I quote him on this. The only point he made—and this is very much out of character with Senator FitzGerald—was that the Minister cannot have taken this decision lightly. In other words, it is the case that Brutus made when he said he had killed Julius Caesar. He said: "Believe me for my honour; have trust in my honour that you may the better believe." It was easy to destroy that case. Mark Anthony said that Brtus said he was ambitious and Brutus was an honourable man. It is known in ancient classical rhetoric as the ethical proof: I am a good man, therefore this must be right.

I believe the Minister is a good man. He has shown himself to be an extremely humane man in nearly every other area of our law, particularly with regard to family law. In this particular situation it seems to me that the desire for law and order is beginning to become self-perpetuating, it is beginning to become triumphalist in a way that almost makes it the mirror image of those very forces that it is trying to suppress, oppose and extirpate, as I hope it will.

One can see this as riding on the crest of the wave of approbation which followed the handling of the Herrema case. The Minister was justly and properly complimented on his handling of that. Even in the sensational and unhappy situation of the Stagg funeral I think the Minister showed extraordinary courage by his handling of it. A man of less courage would probably have faltered in preventing an unseemly triumphalist ritual from taking place in Ireland. He has to get absolutely full credit for it: very few men would have done it. That kind of success generates the wrong kind of momentum, it seems, and the momentum which has been generated in that and by the series of measures I have mentioned is the kind that is now producing measures which seem not just wrong but totally unnecessary. If it is the case that two or three solicitors have stepped out of line, why not bring them to book? We have courts to do it.

Senator Alexis FitzGerald has said that you do not want to destroy any man's career. If he has done wrong, to hell with his career. His career is less important than the Constitution of this country: it is certainly less important than our laws. If that is the Minister's argument—I hope it is not —the degree of intellectual content in the speeches of his supporters is pitiable. I hope he will produce something better—with due respect to those who have spoken: they are of outstanding intelligence. My colleague, Senator Michael D. Higgins, did not support these rules and I would take that as a sinister omen if I were the Minister.

This involves a basic incursion into the human rights of people. It involves all citizens, not just those responsible for what are called political offences. It would seem to me to be moving towards an unjust state, closer towards a situation where the rights and the privileges of the individuals are being eroded. Even when I opposed him, I have sympathised with the Minister, and admired the indomitable way he has conducted himself in the face of an extraordinarily difficult situation in Ireland. There is no doubt about it that the State is threatened, although I think that threat is being driven back by the resolute action of the Government and I would like to support that resolute action in every way.

It is curious how I find myself emotional in the way that other Senators from the other side of the House have found themselves emotional today. I would like to plead with the Minister and ask: Is this necessary? Is this not an extraordinary measure? It is a melodramatic measure. It is a measure that makes us exceptional throughout the community of nations in the EEC. If we are to do something that makes us that exceptional we have to have great cause. Surely the measures that I have already referred to, Special Courts, the Criminal Law Jurisdiction Bill and all the comparatively draconian machinery of the law which is already available are sufficient. Do we ultimately want the hunger and the lust for law and order—that cliché which is emotive and dangerous—to go so much to our heads that all niceities and delicacies of human freedom are to be sacrificed?

Mr. Harte

Just one or two points. First of all Senators were very concerned about the denial of a man's career opportunities and laid great emphasis in this as an argument against these rules. This seems rather strange particularly when you deal with people who can have their work taken away from them by the right of dismissal and notice of dismissal. Here great emphasis is laid on a man's career being taken away from him. If two or three people were involved in this situation, what happens is that one aspect of their work may be affected, but there are other prisons for them to go to.

There are about 600 solicitors in the country I understand, very, very honourable people in a good profession and therefore as regards the constitutional argument about the prisoner being denied his rights I do not think that would hold. If a prisoner has free access to 500 people and he can choose any one of these, then I cannot see where there is a strong constitutional argument because he is denied access to two or three of them. The argument also being made that there is a blanket or collective bar is not true in fact. There must be a certain procedure set in motion through the governor's actions and then the Minister may or may not decide on the basis of what he hears there whether a person is to be treated in the way the rules state. It seems to me that some of the points which have been made have been over-emphasised as if nothing else existed, as if all the 600 solicitors are being discriminated against in the same way. In fact, this is not what the rules say at all. It is far from it. It is definitely quite specific in that area.

Somebody said that somebody over here mentioned that the Minister is a good man and would not do something wrong. That is not putting it in the same way. I hope the Minister would have enough sense not to bring in a set of rules that could be torn asunder if he could get the same results by charging people under the laws referred to. My own commonsense is all I have to act on. On the assumption that he must have taken some advice, the only thing I can say is that if it were possible to lay charges against the offending solicitors referred to earlier, I cannot see why that would not have been done. I do not think anyone could have jibbed at it, particularly the Minister. I would assume that anyone bringing a measure like this before the House would not leave himself exposed to that kind of argument that the offenders could be charged under the Offences Against the State Act or under common law. I heard somebody saying that you could use the Incorporated Law Society. Perhaps this is correct, but what is the procedure? How long does it take? And when do you settle the problem that you are trying to deal with? I do not know the answers to all of those things but I am sure the Minister has had a look over his shoulder at a lot of these things.

I had no intentions of speaking at all on this Bill but I thought there were one or two of these points which were of interest. Again, some of us were a little emotional about the possibility without a question that solicitors are now going to become redundant. I never heard of a redundant solicitor: I did hear of redundant workers. It was necessary for me to drive the point home. There is nothing in this rule that is taking away the right of a solicitor to work. If there was evidence against any particular solicitor requiring the implementation of the rules, then what would happen would be that the person suspected or found to have been unethical in his whole approach that aspect of his work might be affected but certainly not his total work.

Finally, if the tradesman were to go into Portlaoise, Mountjoy or anywhere else tomorrow or the next day and by some means bring out information to people outside or give away strategical locations of the military installations and so on, should he not be treated the same way?

Mr. Lenihan

He should be prosecuted.

Mr. Harte

Of course, he should.

Mr. Lenihan

And so should the solicitor be prosecuted. That is my point.

Mr. Harte

Exactly, and that is why I have been making this case. That is the point I made, that on the assumption that the Minister for Justice at least knows what he is about——

Mr. Lenihan

That is the trouble.

Mr. Harte

——he did not come in here and bring in a set of rules if he could have brought these people to justice another way.

Mr. Kilbride

I have been listening to this debate since Senator Robinson introduced the motion and I am appalled at the extent to which the intellectuals, not all of them lawyers, and those of them who are lawyers of considerable importance and note have been able to evade the reality of what the Minister is dealing with. The emphasis has been laid all along the line in regard to the right of the individual, the Constitutional right, the European code of laws which we should adhere to and which is alleged to have been departed from and the importance of prosecuting a solicitor who is in breach of the present prison laws.

We must recognise that the Minister, as Minister for Justice, has responsibility for security and an aspect of that security is to prevent people who happen to have a right to go in from going in. That is one of the things that members of the legal profession have a right to do as the lawyers or advisers of a prisoner. The prisoner has a right to consult his legal adviser and that legal adviser may be one of, I think, 1,300 solicitors in this country. But of those 1,300 solicitors there are some who are more than solicitors in regard to that particular gentleman who has been allegedly consulting them for advice. They may be, and I think it has been admitted by the Leader of the Opposition in this House that he knows that some of them are, members of an illegal organisation and those people are in a position to breach the security of the State in regard to the prisons code and security.

I was particularly interested in what Senator Lenihan said regarding the way to deal with these people as he alleges they should be dealt with, and that is to prosecute them. That is not what these rules are about, prosecuting solicitors. What these rules are about is the security of the prison. If somebody did something wrong such as not paying his motor tax or not having a light on his bicycle, that is the offence from where it starts to where it finishes and that is all that is to it. But if every one of the 1,300 solicitors were available to this gentleman and if 100 of them were prepared to go into a prison and take in or take out vital information on behalf of an illegal organisation to the colleagues of that prisoner outside and who, incidentally, could be colleagues of the particular solicitor, if even a dozen of them are in a position to go in and do this, must the Minister wait and let all the things these people may do be done and all the difficulties and problems that can arise in consequence take place before he raises his hand about it? Must they be facilitated if they are known to go in and say what they have to say, to find out what information they can and not be prevented from doing that? Because one happens to be a lawyer one has no right to abuse the privilege or the opportunity that one is afforded to go into a prison and bring out or bring in whatever information one can. Nobody here could put up a valid argument that prosecuting such a person after he had done all this should be all that is involved.

When difficulties arose in the security of this country some time ago the people on the Opposition benches in the other House were shouting for the Minister for Justice to resign because on these occasions particular events took place which were unforeseeable and which paid off to some extent— at least for the time being—for the people concerned but if something like that happened and the Minister's authority was curtailed and if Senator Robinson's motion was accepted and if it was shown later that certain lawyers went in and took out information, I am sure that Senator Lenihan and the other Opposition speakers would be up on their feet shouting for the Minister to resign saying "Why did he not come into the House and get authority to prevent these people bringing out information?"

This is the real issue here, not what should be done to a lawyer in consequence of having abused his position, but to ensure that the security of the prison is not violated. To do that the Minister has taken these steps. It is a pity he has to take them; it is a pity that in this country we should require this sort of prison security at all but it is there because everybody on the Opposition benches and in every part are aware that there are subversive organisations that are not prepared to draw a line at a particular point if it suits them to do otherwise.

The Minister must place the interests of the people of this country against that sort of thing. He deserves the support of this House in doing that and I am prepared to give it to him.

Business suspended at 5.30 p.m. and resumed at 6.45 p.m.

Mr. Garrett

I support the motion because I do not think the measures that the Minister is taking in the first place are constitutional because it is interfering with the rights of the citizen. I believe that by refusing the privilege to the prisoner to interview his solicitor privately and confidentially, the Minister is taking away the fundamental rights he is entitled to and that he should have. I believe that the governor or whoever refuses the prisoner that right is prejudging the trial that man has to stand, that it is practically telling the judge that this man is a dangerous criminal, he is not to be trusted in any way, that we cannot afford to trust him. The governor is practically sentencing that man before he even stands trial. This is unreal and I am sure it is not within the rules of the legal profession.

If the Minister, as he is alleged, knows those two or three solicitors who are supposed to have carried out messages or reports, whatever the allegations are, he has the opportunity to prosecute. I do not think that what Senator FitzGerald said, that they do not like to take away the career of a man, comes into it at all, because if anybody in the country commits any crime such as a social welfare benefit offence or anything like that, he is soon prosecuted and brought to justice and whether his career suffers or not it does not matter. Neither the Department nor anyone else worries about his career or how it goes.

If, as is reported, the Minister and the Department know those men, it shows weakness on their part if they are not prosecuting them and bringing them to justice. For the sake of two men who are supposed to have acted in an illegal way, if all prisoners are to be condemned it is not justice. I do not believe that this thing of security comes into it as deeply as it is being made out to be. The people in Ballina where I come from are laughing about security because you have bank robberies taking place every second day all over the country and you have 25 men specially paid for watching a corpse. If that is security it makes me laugh and it makes the people of Ballina laugh at security.

I do not think that this thing of allowing a man, before he is convicted and has not even stood his trial and they do not know what type of a man he is, to be condemned to the status of a criminal, that he is not to be trusted in speaking privately or confidentially to a solicitor is constitutional. I am not a lawyer and I have no legal education but I think from a layman's point of view that it is very bad and that it is showing up our legislation if we in both Houses of the Oireachtas have to adopt and pass the Minister's measures for the sake of two or three people who have done something, if they have done it. It has not been proved whether they have or have not done it, but it is alleged that they have done it—that they have broken their honour or their privilege by bringing out or making reports to outside people about prisoners that they should not have made. It is a very bad law that we have condemned all prisoners held in our jails at the present time on account of these two or three men.

I think there would be far better justice if these men were brought to trial and made to account for their actions, and let us find out whether they have done it or not, or is it just an excuse to introduce this amendment to the prisons regulations. Let them be prosecuted. Let it be proved whether they have done the deeds or not. They are entitled to have justice as much as the man who is in the prison. Otherwise it is very unfair to the man or the prisoner or whoever he is, right across the board. It does not cover any particular type.

If the Minister was serious about this thing he should have confined his amendment to people who are prosecuted or imprisoned or intended to be prosecuted, confined it to people charged before the Special Criminal Court for offences against the State; but I do not think it is fair to condemn all the prisoners within our jurisdiction to ill-treatment and no confidentiality between them and their solicitors just because two gentlemen have been alleged to have acted improperly. I see no reason whatsoever to introduce such severe measures affecting all the inmates of the various prisons. I have great pleasure in supporting the motion put down by Senators Robinson and Eoin Ryan.

Mr. Mullen

I am at a loss to understand the reason behind this statutory instrument because having regard to what has been stated in the newspapers and last Sunday afternoon on the radio, one is left wondering why there should not be another way in which to deal with a matter of this kind.

We are mindful of the fact that when one finds it necessary to object, he may be described as somebody who supports subversives or the other kind. I want to say emphatically, because I consider it necessary, that I am not in favour of subversives. Bearing that in mind, I understand this is not something that is being applied to political or unofficial political prisoners. It is something that is being applied to all prisoners and I think that in this day and age we must be concerned about the welfare and the future of all prisoners and we must not minimise their opportunity of taking their place in society in the future. As I understand what is being advocated, it is something that will preclude an opportunity that is available to citizens of this country.

In this connection might I refer to paragraph 2 of the statutory instrument we have been discussing:

Notwithstanding anything in the Rules for the Government of Prisons, 1947 (S.R. & O., No. 320 of 1947), the Minister for Justice may, where he considers it necessary in the interests of the security of a prison or of the State and for reasons related to the particular person, direct that a person (including a prisoner's legal adviser)—

(a) shall not be admitted to a specified prison, or

(b) may be admitted to a specified prison only on such conditions or in such circumstances as the Minister may specify,

and any such direction shall be complied with by the Governor of the prison concerned.

In that connection, whether we like it or not—the Minister can comment on it later—I believe this precludes a trade union official from going into a prison and having a confab with a member of his union who is held in custody. The same can apply to a minister of religion. That is the most objectionable part of this proceeding. We are supposed to be living in an age of democracy. I challenge the right of the Minister for Justice and the Government to impose this.

I want to emphasise again that I am not trying to organise or be a party to a situation where people who are offenders against the State be provided with a way out or be allowed out. God knows, there have been such cases, where people were allowed out —Crinion and Wyman—and there was no haste, either in this House or in the Dáil, to bring them to task. I abhor this type of idea because it is not in keeping with the way the world is going. One must advert to what is happening outside this country. What is being advocated here is not in keeping with outside developments.

We come to paragraph 3 of the instrument:

The powers conferred by rule 2 of these Rules shall not be so exercised as to prohibit or restrict visits from so many members of the legal profession as to deny a prisoner a reasonable choice of legal advisers and legal advice by such adviser in the sight but not in the hearing of a prison officer.

My understanding of that section is that the Minister for Justice—who if this is passed will become the "Minister for Injustice"—will be the one to decide who should represent whom in any kind of case. This is going far away from the principle of democracy. This is one of the worst pieces of legislation which could be perpetrated. "A reasonable choice": who determines the reasonable choice? We have at present circumstances where people decide what is reasonable and what is not, of their own volition. I am concerned about giving licence to any Minister to determine what is a reasonable choice. I object to this idea as strongly as possible, being mindful of the fact that the Labour Party— of which I continue to be a member —have always set their faces against repressive legislation. The Labour Party have never given a licence to anybody to act as adjudicator as to what is a reasonable choice.

I have come in contact with a number of solicitors from various walks of life and I have discussed their profession with them. I am pleased to say that solicitors have informed me that they do not set about telling their clients what to do in order to have the charges against them dropped. They only try to ascertain what their clients have been charged with and decide how to act accordingly. They do not try to get in league with a client.

It is a terrible reflection on the legal profession to find out—as the Minister said on the radio last Sunday afternoon—that there were three offenders in this regard. I do not know how many practising solicitors there are in the Twenty-six Counties but there are certainly a few, and why are the offending ones not brought to justice? I suspect one of them is playing a two-hand game. One of them was supposed to be defending someone described as a Republican and also defending Littlejohn. Maybe that is proof of how impartial the solicitor was. The Minister gets annoyed at this situation and sees fit to take them all to task.

In this type of situation one is inclined to subject solicitors, barristers and so on to scrutiny. In the main, our legal profession is reasonably good. Some of them have been found wanting, but to try to put all the legal profession on trial because of suspected or known offences on the part of three members and convict them all is really something.

Where are we going? Does this mean that all the rest must subject themselves to a certain discipline, or else? If this is so, if this is what the Minister or the Government have in mind, it is about time all who think like that to rid their minds of the idea because it is not on. There should be a consultation between the Minister and the organisation responsible for solicitors. I have many complaints to make to that organisation.

There are many other opportunities for the Minister to become involved in if he wants to have matters put right as far as legal procedures are concerned. Let us to that and not take this flippant attitude in this matter. There is the question of how young people are treated in courts, the tyrannical attitude adopted by one of the judges recently, his abuse and statements from the bench. What chance have we? What is done about that? We go political about it. It is the proper thing to say that there are subversives moving around. I want to emphasise that I am not in favour of subversives. I do not believe in car bombers and I do not want that label. I am mindful of the fact that on other occasions the present Ministers, when in Opposition, said the same thing as I say now.

Article 40, section 1 and Article 40, section 3 (1) of the Constitution verify and guarantee the citizen's equality before the law. I want to know what is the citizen's equality before the law for. In this modern age some people give lip service to democracy. All round the world we see every effort being made to fling off any element of dictatorship. This undoubtedly is an element of dictatorship. It is dictatorship as to who should or should not represent you on a particular occasion. The Minister does not excuse himself when he says he has caught people or has reason to believe he has caught people who were practising what he believes to be a wrong procedure. I do not care whether it is a solicitor or an ordinary working man, I believe there is such a thing as checking out because you do not blame them all. It is a sad situation to find that any one of the three or four people can be described as being so important that he can produce a situation where there has to be legislation brought into this House to prevent them all from doing the wrong thing. It is a reflection on our behaviour, a reflection on the behaviour of the Department of Justice.

Very often we all give lip service to civil rights. Civil rights is not something that is restricted. Civil rights, to me, prevails right through society. I object as vehemently as I can to this restriction of rights. One has got to be very careful about this. I want to emphasise I am not looking for a way in which some person should get away with something he is not entitled to, but what has been happening to our country for so many years and what suddenly brought this situation about? If it is a political situation why should it not be directed in the political way? Why should it be all over the place? That is saying that I would accept it as being segregated from the political as compared with general sense. There are a lot of people who want to improve the situation, who want to have people in prison for any reason, and there are people who believe that there is a way in which they can get out of the difficulty they found themselves in, that there is another way in which they can be channelled back into society, but now those people will be in a situation where the Minister will direct who should defend them. That is what it says in paragraph 3, indirectly. If the position is to be that the Minister will say "You cannot have this fellow, you can have that fellow, you cannot have the other fellow but I will tell you who you will have"? God knows what sort of a society we are growing into, and I object to it as strongly as I can.

Last weekend I had occasion to attend a meeting with the executive of our union when the matter was raised and I was asked if I could use my influence, such as it is, on the powers that be to stop them from doing this type of thing. I said I could try but I have not got the Whip.

Mr. Dolan

Níl mórán le rá agam ar an dtairiscint seo. Aontaím leis an tairiscint atá ós ár gcomhair agus sílim gur ceart tairiscint mar sin a bheith ann mar gheall ar an rud atá á dhéanamh ag an Aire.

Citizens will have respect for law and order in the country and respect for the laws as they are promulgated. When any individual gets himself into trouble it is important that he should feel that when he is charged and brought to trial the old maxim of the law should apply, that people should see that not alone was justice being done but that it was seen to be done. When people get into trouble and find themselves behind bars it is only natural that they would try to the best of their ability to defend themselves, and if they feel like engaging any of the legal profession to defend them that they should have the ultimate choice. That is fundamentally important. A prisoner would want to avoid long terms of imprisonment and would be very much concerned who would defend him, and he would do his best to secure the best legal advice he possibly could. At present nobody knows what difficulties he might get into; no Member of the Oireachtas or indeed in any position in this country can ever feel that he is the goody-goody and that nobody in his family will get into trouble. Let us realise that we are all afflicted by the punishment of original sin and that we can all do wrong. When that happens it is only right and proper that people should be afforded the basic human right of trying to select the best person to conduct their defence.

When an individual finds himself in court it is not a very happy position. The whole paraphernalia connected with courts is awe-inspiring to the ordinary individual. Council appear in wigs and gowns and so on and there is a frightening aspect about it to an ordinary country man who was never in court before. When people then find themselves transferred to the various jails, in the loneliness of the cell they may often have remorse and they may often be thinking over things in the past. Therefore, in 1976 and under our Constitution we should see to it and the person at the bottom of the ladder should feel that he will get equal treatment with those at the top. That is what makes good law and commands respect for the laws of any country. That principle is enshrined in our Constitution. I should like this Minister and every other Minister to see to it that that principle is upheld.

I remember when I was growing up hearing an old story of Dan O'Connell during the time the British were in occupation in this country. He was defending one of his clients and the judge told him to take him outside and give him the best advice he could. After some time had elapsed Dan O'Connell returned. The judge asked him what about the prisoner and he said: "I did the very best for him. I sent him off to America." You cannot do that so easily at present in this country. I do not think there is any great danger that any of these people are going to vanish to the moon. Some of them are let out on bail and they turn up for their trial.

If this amendment is made it will mean that even a clergyman will have difficulty in seeing a prisoner. It seems that any Minister of State will have the right to decide what member of the legal profession will be entitled to enter a prison. Surely there is enough security in our prisons to see that irregularities do not occur. Irrespective of how vigilant any Minister will be, or has been in the past, things have happened. It is not always the solicitor who was responsible for it.

I have heard some Senators say that the Minister has been worried regarding certain members of the legal profession who were visiting prisons. That seems to convey the idea that some information was leaked through them or that they committed some type of irregularities. I am not sure what they were, but I am quite sure that everybody would like to feel that members of the legal profession who have been guilty of any irregularities or any offences should not be above the law. They are the people who are administering the law and it would look very bad if they were allowed to escape from the ordinary channels of justice through which other offenders have to pass. That is wrong. It is an encroachment on the rights of the citizen. It will do nothing to help people who are charged and who may not be found guilty at all. It will not in any way help and encourage these people to get back into society. We are expected to help these people to return to society and to give them a chance to again become good citizens. This measure would certainly not achieve that aim.

Mr. McCartin

This measure would not be before the House if it were not felt by a very responsible Government and a responsible Minister for Justice that it was necessary to introduce it to protect the ordinary people of Ireland. We have heard a lot of talk on behalf of the criminal element. Senators have said they are not in favour of subversion and that they do not support the gunmen and the people who believe in violence. The people who believe in violence do not expect us to come out and say that we believe that this Seanad Chamber should be bombed, Leinster House should be bombed and public buildings should be bombed, and that we support the people who do it. The best they can hope for is a nod of consolation and that we give them some grounds for hope that they can say that some Members of this House are in total agreement with the things that they have been saying. Some Members of this House have given them the sort of consolation that they are looking for.

Senator Dolan pointed out that the ordinary citizens would like to feel that if they were in this situation they would have the protection of justice and the law, a law, which was fair and equal for everybody. The ordinary citizen would like to feel that when somebody has been put into prison because he is a dangerous person to the State and to individuals visiting that State they would have in power a Minister for Justice who would ensure by every possible means open to him that that person would not be in a position because of the negligence of the Minister to escape and repeat his crime.

While we have done a lot of talking here about law, we have at this time a Government who were elected by the majority of the people and a Minister for Justice who holds the confidence of the vast majority of the people of all political parties while he has been a democratically elected Minister for Justice. Regardless of what laws are written into our Statute Book, the greatest guarantee that the people of this country will ever have of their freedom will be the Government of the day that is in office.

I did not hear Senator Martin's contribution or his interruption. I am making the point that the greatest and most important guarantee that the average citizen of Ireland will see himself as having for freedom and for his own pursuit of happiness is the Government in office. All the laws in our libraries will not guarantee our freedom if we have not in office a Government prepared to do what is right and just.

We have seen fairly clearly in recent months that situations will arise for which no amount of legislation will cater. We will be back to a situation where we will depend on our Minister for Justice. I believe it is not too much that we should say that the Minister for Justice has the right to consider that a particular man is not a trustworthy person and ought not to be trusted in complete confidence with dangerous and criminal elements and should not be given complete freedom, regardless of what profession that man pursues. We have far too much talk about the legal profession, of whom the Minister himself is a member like many other esteemed and respected colleagues of mine in this House. There is far too much emphasis on the rights of solicitors. I do not believe that any particular education or training gives a man a standing in honour or a right to be regarded as superior to his fellows. If I am called to do jury service, anybody can object to me. According to Senator Mullen, that is private individuals taking on themselves the right to say who will try them by jury. A contract may be sent out for £1 million worth of work and a contractor's offer can be dismissed without giving him the slightest explanation. Yet we accept these things as necessary. At present we have criminal elements who challenge my right to vote and my right to seek election, who will use me today if they can get me to give them consolation, and tomorrow they will say that I have no right to represent anybody.

Those people will seek consolation here today, but will try to stop the Minister for Justice from saying that four, five, six or a dozen people out of a whole profession are not trustworthy. That is not too much power to give to a Minister for Justice. When we have the sort of Government we have, we can afford to give that sort of power to our Minister for Justice. I would not like to be a member of a Parliament which could not give such limited power to a Minister for Justice to say that a particular man, regardless of what his profession is, should not have the right to have complete access to prisoners. I do not think this is the same as saying that it is the Minister for Justice who decides who will defend or who will not defend. We can play with the law as much as we like, but there is no law, no matter how good it is or for what purpose it is brought to this House, that cannot be faulted, that does not put some restriction on somebody's freedom. We can see eventuating a situation similar to that which obtains in some cities in the United States, where every thug and criminal is protected by the law except the ordinary innocent individual who is going about his business in pursuit of his own happiness. That is the situation which some Senators would seem to be pursuing. We must at some stage make up our minds, but let it be on the side of the people who are not causing trouble.

Minister for Justice (Mr. Cooney)

Having regard to what has been said, it is important, to put this debate in context. I propose to give some background information and to attempt to put it in context.

The House will recall the sense of shock and outrage that all citizens felt in 1973 and 1974 when there were serious escapes from our jails by persons convicted of most serious criminal offences. There was a large amount of unease as a result of these escapes. People began to wonder was the security of the State at risk if our jails were not able to hold these dangerous criminals. What was the position of the ordinary citizen if these people were to be loose in the community? There was considerable apprehension for the security of the State and the safety of its institutions. I mention that because it is important to recall the apprehension and the strong sense of worry which those escapes engendered at that time. I recall that very vividly, because I was the person who was subjected to much criticism at the time, being the Minister for Justice. No such escape can take place from prison unless it is coordinated from without. It cannot be co-ordinated from without unless there is communication from within.

As a result of those escapes certain measures of security were taken which considerably tightened the regime in our prisons to ensure that illicit communications from within would not go to the outside. Steps have been taken also to tighten other security arrangements. I mention this matter of communication because it is one that is relevant to this debate. I shall explain why it is relevant when I deal with the immediate background to the weakening of these rules. Without communication escapes could not take place. One of the tightest security measures taken in the wake of those escapes was to ensure that, so far as possible, illicit communication would not take place.

The prison rules provide for visits by legal advisers. They are given a privilege in the rules that is not given to any other visitor. When visiting a prisoner on bona fide legal business, a legal adviser may have that visit in private with the prisoner in sight of a prison officer but out of his hearing. This is a privileged position, because he is the only class of visitor who is allowed that sort of visit. The reason he has been allowed that privilege is that traditionally the legal profession have high standards of professional conduct. It has been accepted and taken for granted that the privilege afforded to the legal profession in that rule would not be abused. It was suggested here that that privilege could continue and that barriers could be put up in the visiting room between the legal adviser and the prisoner. I think that would be unfair to the great majority of solicitors who continue to visit our jails without hindrance. That would be placing them on a par with those at whom these rules are aimed. In any event, too many legal visits involve the perusal of legal documents, the exchange of them between adviser and client, and the signing of documents. Again, it would not be possible to have a reasonable professional visit with a barrier between the parties. I mention that because it was raised as a possible solution to the problem.

The context in which we have to look at these rules is in the aftermath of escapes which caused much public concern and worry. The only type of visitor to our jails who was afforded this privilege of meeting a prisoner out of the hearing of prison authorities was the legal adviser. The reason he was in that privileged position was because of the expectation that a high degree of professional conduct—a great sensitivity for the ethics of his profession—would at all times prevail and that there would be no abuse of that privilege. It has been suggested that what we propose here is unconstitutional.

Senator Robinson referred to the case of Walsh and McGowan. It has been suggested that that case indicated that there was a constitutional right to be represented and advised by a lawyer of one's choice. The case did not decide any such thing. It was contended by the prosecutor and conceded by the other side that Article 38 and 40 might be so interpreted— that such a right might be implicit in them. The Chief Justice in delivering judgment said:

I do not regard it as necessary to consider the relevance of the Constitution to the facts of these cases.

That case was decided on a very net issue, on the question of the rules that were before the court. No adjudication whatever was put forward or offered, or any views offered on the question of whether there is an implicit constitutional right under Articles 38 and 40 to legal representation. I would think myself it could be argued successfully that there is. I also think—and this apparently was conceded by both parties in their argument—that, while such a right may exist under those Articles, it is not at all an absolute right to a particular lawyer. I have been strengthened in that view by the practice that is observed in assigning legal aid in habeas corpus cases. This is done as an informal administrative arrangement whereby legal aid is made available in such cases and lawyers argue the cases assigned by the Supreme Court. The lawyer is assigned and picked by the Supreme Court. It has happened in the past that the court has refused to assign a particular solicitor who was attempting to appear for the defendant and assigned someone else. That would seem to strengthen my argument that, if there is a constitutional right to a lawyer, it is not an absolute right to any particular lawyer. I mention that to deal with the argument of unconstitutionality put forward by Senator Robinson.

On the question of whether the rules are ultra vires, I am advised that they are clearly within the powers of the Prisons Act. As Senator FitzGerald said, there is another place in which our opinions on these matters can be tested.

The immediate background to these rules was an abuse of the privileged position of legal advisers to which I have just adverted. This abuse took place in two cases to my certain knowledge and in a third case I am satisfied, although my degree of satisfaction, so to speak, is not as final and absolute as in the other two cases. It is quite enough to make me worried, as the Minister responsible for the security of the prisons, and it is a matter to which I must pay attention. There have been three cases in which the privileged position of the lawyer to interview his client out of the hearing of a prison officer has been abused.

I cannot give details of these three cases for the reason that they are sub judice in the sense that they are being or have been referred to the Incorporated Law Society for action as the statutory body charged with overseeing the professional conduct of solicitors. The Director of Public Prosecutions has directed that no prosecution lies against these solicitors for their action in breaching their privilege. He has directed that the law as it stands does not reveal any criminal offence by them. Their action—and I can say this without breaching the sub judice rule— amounted to the taking out of correspondence from prisoners to persons outside and, indeed, to persons in other prisons. By a legal lacuna in our code of criminal law relating to prisons, that is not an offence and is something which may have to be cured. No prosecution can lie. This has been investigated and the law found wanting in that regard.

The other way in which it was suggested to me here that this matter should be tackled was by proceeding via the Incorporated Law Society. Their procedures are slow and do not constitute a trial. The outcome of their procedures is not something over which I or the State have any influence whatever. What the outcome of their procedures might be in any particular case is something that is within their competence only, or when referred to the President of the High Court: should he become involved in the procedure, it is a matter for his discretion solely. It is not something in which the State can intervene to ask for any particular outcome or to present an argument in favour of any particular outcome. We are left with the position that there is no way of prosecuting through the criminal courts and the only way of tackling these aberrant solicitors is through their own society, a procedure which is slow and cumbersome and the outcome of which is doubtful.

The most severe outcome that could arise would be that a solictor would be struck off, or that a member of the Bar would be disbarred. I do not know whether such an outcome would even be likely. I would not wish it and in any event it would be pure speculation on my part. I would imagine that it would be a very rare thing to see a member deprived of his livelihood for something that, to his own disciplinary body, might not have the same colour of guilt as it would have to me as Minister for Justice, aware of all the nuances from the security point of view. Likewise, if we cure the law with regard to enabling us to bring prosecutions for such actions, the penalties that can be imposed are the normal penalties that follow any criminal offence, fine and/ or imprisonment. Again, it would be unlikely that a court would imprison, but I cannot say what a court might do. I would imagine that a court would feel that a sufficient punishment for a single offence, probably a first offence, would be a fine. That is all the sanction the law could enforce. That would not stop him from going back the next day to the prison, going back every day of the week to the prison, and doing precisely the same thing if he was prepared to risk being caught and prepared to risk further trials with increased monetary penalties. That would not answer the problem with which I am faced. The only answer to the problem with which I am faced is to take power to exclude such a person from visiting the prison, from subverting the security of the prison and from abusing the privacy and the privilege which are afforded to him by virtue of his profession. It is not an answer to prosecute him. It is not an answer to say "Bring him before his own professional authority". They do not answer the problem that I am faced with. They will punish him for what he has done but they will not prevent him from doing the like again. I think power must be available to the Minister for Justice of the day to take steps to exclude such a person from the prison or to allow him in only on conditions that will ensure that he will not be able to do harm to the security of that institution.

It may be argued that if he is prosecuted it is unlikely he is going to risk a second prosecution or a second visit to his own statutory body to be disciplined. That second visit might bring with it the danger of being struck off. Again, we have to bear in mind that the privilege that has been abused here is the privilege to have visits out of hearing, and the abuse that we have detected so far has been the abuse of bringing away written documents. If there is going to be a danger of prosecution on a second occasion for written documents, it is most unlikely, and it would be simplistic, I think, to assume, that a person would risk taking those out a second time. The obvious thing is that a person of that frame of mind is going to take out a verbal message. This is where the real danger lies for the security of the prison. No amount of prosecution through the court or action through the disciplinary committee of the law society is going to provide a sanction to deter such a person from that abuse.

The reality of the situation is that power must be taken to ban the person completely from the prisons, or admit such a person subject to such conditions as will ensure that he will not be able to subvert the security of the prisons by abusing his privileged position. That is what these rules set out to do. These rules are intended to ensure that such persons can be excluded from the prison. I cannot risk the personnel of our prisons from being put in the position of high danger that previous escapes have put them in, where they have been threatened with guns and where they have narrowly escaped death from explosions. I have a duty to ensure that our prisons, in so far as I can affect the position, will be secure to contain the people that society want to be contained within them. It is in that context and in that background that these rules had to be made.

It has been presented that there are only three incidents involved. That is all, and there will be only three people, as far as I am concerned, who will be excluded. That number will only increase when I get evidence that will satisfy me. Unfortunately that is the way it has to be. I am the person who has responsibility. I am the person who has to be satisfied as to whether I make an order excluding a particular person or not. I can assure the House that such an order excluding a person will not be made by me unless I am satisfied from evidence available to me that such a person deserves to be excluded on the grounds that he is a security risk or deserves to have conditions attached to his visit for the same reason. Nobody else has the responsibility. The courts or the Incorporated Law Society have not got responsibility. This House has not got the responsibility. Should there be a breach of security the responsibility is mine. With that responsibility goes the obligation to take whatever steps I think are necessary to ensure that that responsibility is discharged.

I can see readily that it may be distasteful for people to listen to a Minister saying that he must take this responsibility. It gives me no joy to have to say to this House that I have to take this responsibility for making a decision that is going to be adverse to a particular solicitor, possibly in regard to a particular visit. I am a solicitor and I am sensitive of the obligations and pressures on the profession. I would not willingly introduce any rules that would make their task more difficult or that would reflect adversely on it. I am aware of the need for private consultations in the course of legal visits, but I am also aware, by virtue of the responsibility as Minister for Justice, that there are people in our society who are determined to subvert our institutions and who will use the very freedom of democracy to do that. As Senator FitzGerald put it, we will not be safe until democracy becomes as tough as they are, and that was one of the objects of these rules: to ensure that democracy will take all the muscle it needs to protect itself and its institutions.

I can only say this to people who will be worried about a Minister for Justice, leaving me out of it, taking these powers to himself. There can be no appeal because there is no suitable appeal tribunal. You cannot involve the courts in what is essentially a matter for the Executive. You cannot involve a professional society, as they have no standing. This is a matter for the Government of the country, and there can be no appeal from a member of that Government charged with that area of responsibility. He is subject to the checks and constraints that the democratic process provides for him—a motion in this House, a question in the other House, the use of the media to publicise an abuse of the powers under this Act, the democratic process through the ballot box. These are the constraints and these are the checks that are on a Minister for Justice to ensure that there will be no abuses of the powers here.

Again, too, there are two very powerful and articulate professional bodies, the Bar Council and the Inporated Law Society. We have the picture that some Senators were endeavouring to paint here of the Minister for the day taking the power to exclude all solicitors or 90 per cent of them other than his chosen few. There are those articulate and powerful vested interest voices making their voices heard loud and clear throughout the land and no Minister might dare, so long as we have the freedom of our democracy—and that is what this is all about, to preserve those freedoms to abuse those freedoms. I commend these rules to the House in that spirit and I reject the arguments that were made against them.

Dr. Browne

Precisely the same argument as was made by Deputy O'Malley in the other House, which you ridiculed.

Mr. Halligan

I do not think too many comments are called for in support of the Minister's speech, but as I have been privately critical of him in relation to security matters I do not intend to be publicly silent when he is under attack as he is under the terms of this motion. I have a responsibility to speak on this motion.

I agree completely with the Minister that the issue is, and has been, and will continue to be, that of security, specifically prison security, in general, the security of all the people. That is the issue before this House and that issue only.

The mover of this motion chose to categorise the time we live in as one in which, and I am quoting her, "democracy was at risk". I might not have chosen that heightened language myself to describe our present condition, but that is her language and I will take it at its face value. If democracy be at risk, who has put it at risk? Is it the Minister, who is made answerable before us here today under the terms of this motion, or is it the Provisional IRA? From some of the contributions in this debate some of us might have been forgiven for believing that it was the Minister who was putting democracy at risk. That was not the way the mover of the motion presented her case, but that was the avenue she opened up by this motion. The Provisional IRA "put democracy at risk", in Senator Robinson's phrase. They do not recognise this House of which she is a Member. They do not recognise any law which this House passes. They do not recognise the courts before which she practices. They do not recognise the law which she defends and which she teaches.

Mr. Lenihan

On a point of order——

Mr. Alexis FitzGerald

It is all right for Senator Lenihan to interrupt.

Mr. Halligan

Since they neither recognise the Oireachtas not its laws, they would be prepared to break the prison rules which are incorporated in our law and which are, in my view, the subject of this motion before us. To break the rules would be a very minor consideration either in their tactics or their strategy. They are prepared to ignore all laws and all rules and to put at risk the democratic society in which we all live, to again quote Senator Robinson.

I ask myself, therefore: are they prepared to break any prison rules with which this House might empower a Minister of State? I do not think any of us would have the slightest hesitation in answering "Yes, they would be so prepared". Of course, they are prepared. If they are prepared to break out of a prison they most certainly are prepared to break the rules that govern that prison. These are realities with which the Minister must deal and which, I submit, this House should concentrate on in considering the motion. The question, then, is this. Is there a possibility that members of the legal profession would also be prepared to break existing prison rules? I believe, regrettably, the answer must also be "Yes". Otherwise I ask if I am to accept that the legal profession is made up of people who are so incorruptible that will in all cases obey the law and abide by the rules. Am I so naive as to believe that this IRA conspiracy does not have supporters within the legal profession? Are we so naïve as to deny the possibility of there being legal people who are prepared to advance its aims and objectives? I am not so naïve. I do not believe the Minister is so naive, and I do not believe the majority of this House is that naive either. Most certainly and most assuredly, the members of the public are not so naive. If a danger, therefore, exists that the prison rules as they exist will be broken, what is the Minister's responsibility? A grave charge has been made by him on radio, and again here this evening, against certain members of the legal profession.

Mr. Lenihan

Two or three.

Mr. Halligan

What is he to do? If it were one, it would be sufficient cause for this change to be introduced. He not only has a right, but he has an obligation to effect those changes. Who was pilloried when the prisoners broke out of the prisons in Portlaoise and Mountjoy? As he rightly said, it was he who had to carry the can. Who called for his resignation on those occasions? Members of the very party who in this House are opposing these changes in the interests of security. The public can categorise the action of that party for themselves.

As I said on the occasion of those prison breakouts I criticised the Minister privately for the defects in security. I must now publicly defend him for the changes he is effecting in the prison rules in order to enhance security to continue the situation in which there have been no subsequent breakouts. I must, logically, defend him for taking on to himself the responsibility of closing every possible loophole in prison security, because those who escaped on those occasions constituted a most grave threat to the security of the State. Let us stop the abstractions, saying "The security of the State" and let us say what that means. It means the security, the life and liberty of ordinary people. This is what was put at risk by those who broke out of Mountjoy and Portlaoise.

Mr. Cooney

Senator Fox's murderers.

Mr. Lenihan

That is silly.

Mr. Halligan

Senator Lenihan has had his silly say, as he usually has. The Senator is objecting to the prevention of the possible repetition of people breaking out of prison, people such as those who have recently in a most dramatic form put the lives of ordinary people at risk; indeed, not only putting the security of the State at risk but putting the lives and liberty of innocent people in deadly danger. The Minister has a serious duty to protect the rights of the ordinary public in hazardous times. He must strike a balance between individual rights and general rights and that is the central problem of all law. Certainly it is the problem which perpetually confronts a democracy, and it is only for the gravest reasons that the balance is moved one way or the other. In this instance the Minister was faced with a situation of the utmost peril. I know the personal reluctance with which he has chosen to move the balance in a certain direction. All of us who listened to his speech, objectively, can only have come to the same conclusion : that it was indeed with great reluctance and sadness he moved the balance in this new direction. I believe it to be the right direction because the Minister, and indeed the entire Cabinet, must have been convinced that a new security danger exists and that consequently a new balance had to be struck between individual rights and general rights. They have chosen the correct balance in these new circumstances and I support it.

Senator Robinson in her opening address admits that a security problem exists. It took her some time during her speech to do that. At one point I was wondering whether, in fact, that admission would ever be forthcoming. To use her own words, "These are not normal times". She then said "Very real security problems exist at present." As I quoted earlier, she put it that "democracy was at risk". She voiced, "sympathy for those responsible for security". Sympathy, yes; but, I suggest, very little understanding of the problems of those who have the responsibility for dealing with security. I think the solutions which she and the law society have put forward are not worth a thraneen and I believe they have been demonstrated as worthless by the Minister. Her speech was very much divorced from the security reality with which the Minister must deal every day. This action, currently the subject of criticism, is being taken by the Minister, in the words of the new prison rules, "in the interest of the security of a prison or of the State." I think this stated purpose is the safeguard we require that there will be no abuse of the new ministerial powers. We have been given a fuller assurance in that regard by the Minister here in his speech. Certain representations of the Minister's position are to me absolutely reprehensible. I charge that much of the criticism has been couched in extravagant and exaggerated language as to the reasons behind these changes. I cannot accept such criticism either from a personal or party position because I do not believe it to be true. On the contrary, I believe that the general public will see this alteration in prison rules as the Minister doing his duty and I accept his assurance which he has given here today about the limits, scope and purpose of this measure.

Dr. Browne

Wrap the blue shirt.

Mrs. Robinson

I thank the Minister for Justice and the other Senators who participated in this debate and thank the House for the opportunity it has given to examine the implications of the proposed amendments of the prison rules and to hear the various arguments put forward. The House will have to make a decision at the conclusion whether it will grant approval to these prison rules.

My calculation of the score was that, apart from the Minister for Justice and myself as proposer of this motion, 15 Senators participated and that eight were for the motion to disapprove the prison rules and seven were in favour of the rules becoming part of the law of the land. In that sense it was a fairly evenly divided debate.

I would like to begin by replying to some of the main points put forward by individual Senators and then to respond to the contribution of the Minister for Justice. Senator Lenihan —and I hope I understood him properly—in speaking on behalf of the Fianna Fáil group regarded these prison rules as an over-reaction to a situation. He emphasised the fact that the Minister had mentioned that there were at the most three particular solicitors involved and yet that the prison rules in their scope and in their effect would extend to every prisoner potentially and that there were no limits to the operation of the power depending on particular circumstances and that this was, to quote the language used by a solicitor on the radio recently, a "sledge-hammer to kill a fly".

Senator Higgins must be commended for a very courageous contribution. I have been long enough in this House to realise that it is not easy, particularly for a young and ambitious party politician, to break a little from the party Whip or the party line and to speak his mind. It is something I have noted before that Senator Higgins is prepared to do. I find it very encouraging that he expresses his deeply felt views about the way in which we treat people in prisons generally. He speaks as a sociologist about law, and to some extent this to some lawyers is like a red flag to a bull. But he speaks with enormous conviction and with enormous humanity, and this is a very welcome contribution. I welcomed his indication of the fact that he would not vote against the motion disapproving these prison rules. He was followed by Senator Browne, who put humanitarian considerations paramount, who has had a long concern for prisoners and who tried to broaden the scope of the debate to consider the whole question of the way in which we operate the prison rules, the way in which we treat people whom we as a society have decided must be incarcerated and deprived of their liberty.

This was a theme implicit in many of the contributions on both sides of the debate, from those who were in favour of these prison rules and those who were against them, a concern that perhaps we should in a very short time have a major debate on the new prison rules which reflect much more the humanitarian considerations of this part of the 20th century and perhaps a thoughtful appraisal of how we make many of our prison population—to use Senator Harte's phrase— redundant : let us get as many people as possible out of our prisons and let us run our prisons on very much more humanitarian lines. This was a welcome underlying theme in many of the contributions and very forcibly in the contribution of Senator Alexis FitzGerald.

Senator Alexis FitzGerald, who "led for the opposition" in the sense that he was the first contributor in support of the prison rules, expressed the main theme of those in favour of these proposed rules becoming part of the law of the land: that there is an immensely serious situation at the moment, that the Minister would not without good reason bring in these rules, that they are therefore necessary to cope with this security situation and that, therefore, he and the others who took that line of argument support them.

I do not mind Senator Halligan repeating my appreciation of the security situation. He is very welcome to do so. I do appreciate the difficulties, the problems and the dangers to prison staff. It was by no means a strategy—it was the way in which I had presented my contribution to the debate—that the reference to security came later on in my speech. There was no sinister implication in that.

Senator Alexis FitzGerald and other Senators, describing the difficult and abnormal situation in which we live in this country, the risk, the measures that have to be taken to cope with the situation, are in danger of not knowing where to draw the line in order to ensure that we have in this country a healthy protection of human rights and civil liberties. The arguments about security are arguments used by dictatorships, by totalitarian regimes. They are very plausible arguments. The issue here is : where do we draw the line? I do not differ with those who supported the prison rules about the serious situation in this country, but I do differ in the way that I would respond to it and I differ in particular with the contribution of the Minister on this score.

Of course, we have to take measures. Of course, we have to balance the situation, but we must not erode in an invidious way and unnecessarily the core of fundamental rights of the citizen. It was well said, and repeated in a number of speeches, that it is relatively easy to erode civil rights. But it is very difficult to gain them back or to win them in the first place. We must be very conscious of this.

One response that a society like ours has to the challenge of those who advocate violence, to the challenge of those who would undermine our institutions, is to reinforce respect for those institutions, to reinforce a concept of democracy, of participation, of protection of individual rights. It may not sound a very tough—in the Minister's words—reaction to threats to democracy. In the long run, I believe, it is much more effective. It is the call to the citizens of the State to stand by their democratic institutions, to stand by respect for law, to stand by respect for themselves as human beings. We cannot, either, talk about the very serious situation in this country in a one-sided way. References were made to institutional violence. We have to face the fact that institutional violence is not a response; it is perhaps a further stimulus to other non-institutional violence.

Senator Alexis FitzGerald was followed by Senator Lyons. He made what I have to admit was, to some extent anyway, a valid criticism of my contribution. He said that I tended to emphasise that these rules would interfere with the professional practice of legal practitioners rather than that they would interfere with the rights and basic position of prisoners and discriminate between prisoners. It was not my intention to do that, but I am, as a practising barrister, very aware of the blanket impact of rules like these.

Senator Harte and other Senators made the point that there is a large number of practising solicitors. There is not a large number of solicitors who defend prisoners before the Special Criminal Court or who engage in general criminal work as a specialist occupation. Solicitors very often have a deep concern for civil rights and some are prepared to take a lower income as solicitors—criminal work is not well paid—because of this concern. There are not many; there is not a very strong Bar of solicitors deeply concerned about civil rights. If the effect of these prison rules was to make the particular practitioners nervous about whether they might be blacklisted if they defend vigorously, might it mean that these powers would be used to blacklist them? This could have a damaging effect on the independence of the legal profession. I have spoken to enough of my colleagues at the Bar, who are by no means roaring radicals, to know that they share this apprehension. There is deep concern about the blanket effect of these prison rules.

I accept to some extent Senator Lyons' point. I want to remedy the focus I might have put on my own contribution by having the opportunity to discuss a general amendment to the prison rules, the role of prisons and the reforms that might be possible. Nothing would give me greater pleasure than to have that type of basic debate.

I was grateful for the support of Senator West and for the way in which he put, in very direct and simple language, the necessity for the Minister to justify in real terms the reason he was asking for this power. The question was very appropriately and properly put and it was up to the Minister to justify himself. I shall deal later with the Minister's contribution in response to invitations of that sort.

Senator Butler emphasised the problem of a time factor, that if it was thought that a legal adviser was contravening the privileges and abusing them in a non-professional way the present remedies are not effective. The time factor may very will be important. It is this sort of aspect that we are properly discussing here. The particular approach of these prison rules is very—I use the word again—arbitrary; arbitrary in the sense that there is not within the rules a curtailment of the exercise of the powers, that they will act as a blacklist against certain members of the legal profession, and that they will act as a discrimination against certain prisoners who ask for a named legal adviser. The way of trying to cope with this problem of the time factor is not this way.

Senator Martin, in support of the motion, pointed out that, on the whole, the arguments of Senators who were in favour of these rules becoming part of the law was that the Minister is a reasonable man. The Minister feels he needs this added equipment, and it is reasonable for him so to feel. The security situation is very difficult. The Senator described it as being an argument for the case on the basis of what he calls ethical proof: that the Minister is a reasonable man and will not abuse power. The difficulty for Senators is that we are not thinking in terms of the present Minister for Justice. We are putting a permanent statutory instrument on the Statute Book. In 30 years' time that power may be abused. Any assurances the Minister gives—I know he gives them with complete sincerity and he has thought seriously about this matter—have no binding effect either on him in the way he might exercise the power and in particular on his successors. We are not talking about the way in which this Minister or his immediate successors will operate but the sort of powers we will give to the Executive and the way in which we will allow those powers to be exercised.

I should like to take issue with Senator Harte on his contribution. He took me up on the point that the power the Minister would have to blacklist legal advisers would interfere to some extent with the exercise by solicitors of their profession. After all, so many people are unemployed or redundant, and what are solicitors complaining about? He has never heard of a redundant solicitor. That is too facile. That is not meeting the point.

Mr. Harte

That is inaccurate, for the record.

Mrs. Robinson

We can both read the record afterwards and if I have been inaccurate I will apologise. There was a point——

Mr. Harte

That is not the way it was put.

Mrs. Robinson

——that to find that these rules interfered with solicitors in their trade and profession was a small enough concern considering all the unemployment. Those who are unfortunately unemployed—we all know that there are far too many of them—are not being accused of being in breach of the basic ethics or standards of their profession. They are not being accused of being in breach of the privileges of their profession. It is a very serious allegation. The Minister has emphasised this; it is quite different from saying that they are being to some extent curtailed in their activity.

I have dealt with the main points raised by Senators. Senator Mullen departed from the approach of his party in order to affirm his view that these prison rules constitute an unreasonable extention of the power of the Executive and that they would be objectionable as a power to be exercised by any Minister for Justice.

Senator McCartin, to some extent, tried to suggest that anybody who introduced a motion of this sort before this House was in some way aiding and assisting the IRA. He was, I am glad to say, the only one who tried the smear tactic.

Mr. Halligan

That is wrong; he was not the only one.

Mr. Lenihan

Senator Halligan did it.

Mrs. Robinson

It is the most unfair and terrible allegation. It is very regrettable that he mentioned it, but perhaps when he is longer in the House he may learn a certain reticence in that regard.

Senator Halligan made a hard-hitting contribution. I have no objection whatsoever to the extent he quoted me for referring to the seriousness of the situation, to the fact that democracy is adrift in the country, to the difficulties and so on. He seemed to feel that I was slow to concede that there were security problems. I reject that contention, the more so because it is party-political chat. He did not reinforce any substantial arguments for the sort of power the Minister is taking to cope with the problem, and it is that with which I want to deal finally.

The Minister has given the House, clearly and concisely, the particular difficulties and motivation which persuaded him to introduce these prison rules but he did so reluctantly. He referred to the suggestion I had made, and which Senator West quoted, of erecting permanent barriers between legal advisers and high-security prisoners. He said he did not favour this because it would be unfair to prisoners in general. I was not suggesting that this be a general practice in prisons. I was talking about high-security prisoners, where there was a high security risk, in fact the sort of situation the Minister is referring to. In the rare number of cases where there is a high-security risk there might be within prisons such as Portlaoise a special room for such consultations where they would be out of the sight and hearing of the prison officer but where there would be no possibility of the passing of documents. This appears to be the particular difficulty with the two or possibly three solicitors to whom the Minister referred.

As far as the McGowan-Walsh case is concerned and the ruling of the Supreme Court—I think we are in agreement on that. I think the Minister may have misunderstood my reference to that case. I take his point that that case did not decide the constitutional issue but it did concede, it was agreed, that a person, under Article 40 (3) on the personal rights of a citizen, has a right to a legal adviser and to be represented in court. I would agree with him that the Supreme Court did not go on to say that this was an absolute right to a named adviser in that case and that the Chief Justice reserved that constitutional issue.

The problem I find where the Minister says that there is a legal lacuna, that there are not offences with which people can be charged, when he can say on the record of this House that with certainty he knows that two solicitors have misused their position and have transported documents and that a third—and he seems to be fairly sure—has also done so but that there is no legal equipment to deal with them, then I think this House must urge the Minister to bring in a simple Bill or to include in the Criminal Law (Amendment) Bill that is going through a simple provision to this effect. I see no reason why not.

Mr. Lenihan

Hear, hear.

Mrs. Robinson

Similarly, the Minister underestimates the significance of the procedure of referring a legal practitioner either to the Incorporated Law Society, if he is a solicitor, or to the Bar Counsel if he is a barrister. This is the appropriate response in a country where we value the independence of the profession, where there is necessarily a slow procedure in order to decide whether a person should be disbarred and whether a person should have an opportunity to present evidence and so on to defend himself, to cross-examine and to have all the protection.

I would go a little step further on the basis of what the Minister has said as a suggestion of what I would still regard, given what he has said is the motivation for these prison rules, as a preferable method of coping with the problem, and that is that if there are two or three practising solicitors against whom proceedings may have been initiated to disbar them or may not, who are being sought as legal advisers by prisoners at the moment, it would be preferable to make provision that those particular prisoners could see their choice of legal adviser, those particular solicitors, only in the presence and the hearing of a district justice or some other judicial officer who would be bound by an oath of secrecy but who would be in a position to ensure that whatever took place was within the professional relationship and was not in breach of the standards of the profession.

That would illustrate the extraordinary nature of the situation, the extraordinary facts that there are practising solicitors who are, apparently, prepared to undermine the code of the profession and to abuse their professional privilege. But it would mean that it would be a particular response to particular individual cases; it would involve a member of the Judiciary being present because of the seriousness of what was in issue. It would not be a blanket act of the Executive, as the Minister has agreed; without having any hearing on it, without having any appeal from him, he decides and is judge and jury of the issue. A person may not know that he has been blacklisted until he hears indirectly that he was refused as a legal adviser to a particular prisoner. The prisoner may not know when he asks for a lawyer that that lawyer had been blacklisted and that he cannot have him. This is a great over-reaching of the response that is necessary to cope with the particular problem which the Minister has identified and explained to us in the course of this debate.

Therefore, after a full discussion of the issue and having heard the arguments of Senators who support these prison rules and in particular having heard the motivation and the background which the Minister has indicated, I affirm more strongly that I do not believe that these prison rules are necessary. I think they are an arbitrary and invidious incursion on the rights of individuals, on the rights of prisoners, on the rights and status of legal practitioners. We should not extend this power of the Executive and the State and we should, whilst having an appreciation and sympathy for the security problem, address our minds to other solutions. The Minister should withdraw these prison rules and come back with other solutions to his particular problem.

Question put.

The Seanad divided: Tá, 11; Níl, 24.

Tá

• Brennan, John J.
• Browne, Noel C.
• Dolan, Seamus.
• Eachthéirn, Cáit Uí.
• Garrett, Jack.
• Hanafin, Des.
• Lenihan, Brian.
• Martin, Augustine.
• Mullen, Michael.
• Robinson, Mary.
• West, Timothy Trevor.

Níl

• Butler, Pierce.
• Codd, Patrick.
• Daly, Jack.
• Deasy, Austin.
• FitzGerald, Alexis.
• Fitzgerald, Jack.
• Halligan, Brendan.
• Harte, John.
• Kerrigan, Patrick.
• Kilbride, Thomas.
• Lyons, Michael Dalgan.
• McAuliffe, Timothy.
• McCartin, John Joseph.
• McGrath, Patrick W.
• Mannion, John M.
• Markey, Bernard.
• O'Brien, Andy.
• O'Brien, William.
• O'Toole, Patrick.
• Owens, Evelyn.
• Quinlan, Patrick Michael.
• Russell, George Edward.
• Sanfey, James W.
• Whyte, Liam.

Tellers: Tá, Senators Robinson and Garrett; Níl, Senators Sanfey and Halligan.

Question declared lost.