Vol. 85 No. 1
I move:
That Seanad Éireann hereby resolves, pursuant to subsection 3º of section 3 of Article 28 of the Constitution,
(a) that the national emergency created by the armed conflict referred to in the Resolutions, pursuant to the said Article, of Dáil Éireann and Seanad Éireann of the 2nd September, 1939, has ceased to exist, and
(b) that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State."
I believe the terms of this motion clearly indicate the Government's view of the gravity of the situation which led to this special meeting of the House to consider emergency measures for the purpose of securing the public safety. The measures which we deem to be necessary to meet the situation comprise the motion just moved and legislative proposals contained in two Bills now before the other House.
Senators will, no doubt, have refreshed their minds on the provision of the Constitution in question here. The provision means that if both Houses of the Oireachtas adopt the motions before them, any law subsequently enacted which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of the armed conflict referred to in the motion shall be protected from challenge on constitutional grounds so long as the emergency continues.
There have been comments and headlines which suggested that the Oireachtas was to be asked to suspend the Constitution. Senators will appreciate, I am sure, that this is not so. If it were true, the Constitution would have been suspended since 1939. The reality is that it has not been so suspended and will not be so suspended by adoption of the present resolution. The protection from constitutional challenge which would be afforded would extend solely to laws expressed to be for the purpose of securing the public safety and the preservation of the State.
The Government's decision to introduce this motion and the Bills which are before the other House was taken following two events which issued, in a new and menacing fashion, a direct challenge to the authority of the institutions of State and to their ability to discharge the functions entrusted to them under the Constitution. I refer, firstly, to the explosions at the Special Criminal Court in Dublin on 15th July last and secondly, to the murder of the late British Ambassador, Mr. Christopher Ewart-Biggs and of Miss Judith Cooke, Private Secretary to the Permanent Under Secretary of the Northern Ireland Office, Mr. Brian Cubbon, and the attempted murder of Mr. Cubbon and the driver of the blown-up car, Mr. Brian O'Driscoll, on 21st July.
The motion asks the House to resolve that the national emergency occasioned by the armed conflict referred to in the resolutions of Dáil Éireann and Seanad Éireann of the 2nd September, 1939, has ceased to exist. Those resolutions referred to the armed conflict then taking place in Europe, that is to say the Second World War. The continued existence of the emergency declared in 1939 fell to be reviewed by the Governmen when they were considering the action to be taken in the current situation. The need to secure the public safety and to preserve the State at the present time arises from the armed conflict in Northern Ireland and not from the armed conflict in Europe, referred to in the 1939 resolutions. Furthermore, the existence of the 1939 resolutions results in an anomalous situation which it is desirable should be corrected. It is for these reasons that in the first part of the motion it is proposed to resolve that the national emergency declared by the 1939 resolutions has ceased to exist.
In relation to the second part of the motion, the significance of the two outrages to which I have referred is that they represent the culmination of a long serious of violent crimes, perpetrated within the State but related, directly or indirectly, to the situation in Northern Ireland. They relate directly in that in many instances the criminals involved were residents of that area or persons formerly resident there. They relate indirectly in that they are the result of a cult of violence rampant in parts of that jurisdiction. Taken together, these crimes add up to a serious danger to the public safety and to the preservation of the institutions of State.
In one sense, the recent incidents raised the challenge to the State and to its organs to a new plane in that they were directed at the discharge of two functions fundamental to the Government of the State. The murder of the British Ambassador struck at the conduct of our international relations while the explosion at Green Street struck directly at the administration of justice. The challenge thus posed called for an unequivocal response. This is given in the present motion and in the Bills before the other House.
The Government believe that the extent of violent crime by subversive bodies and persons associated with such bodies, the new dimension added by the recent events and the further threat to the institutions of State implied by these events constitute a national emergency affecting the vital interests of the State. We believe it was necessary to make clear our response as soon as possible after the recent outrages and that it could not await the date fixed for the resumption of the House. To do so could only serve to embolden those dedicated to the overthrow of the institutions of State.
The motion refers to "the armed conflict now taking place in Northern Ireland". Regrettably, that conflict and the unsettled situation generally in that part of the country have been with us since long before this Government took office. The toll in lives, in injuries to persons and in the destruction of property there has been enormous. Since 1969, over 1,600 persons have lost their lives, while over 18,000 have suffered injuries. The level of deaths and injuries as a result of violent attacks is now higher than in any year since the present conflict began, with the exception of 1972. On average, every day this year has seen one murder, four injured in terrorist attacks, two bombings, two to three armed robberies and five shootings in Northern Ireland.
The conflict in the North has a number of aspects. There are the random and callous sectarian assassinations of civilians from both sections of the community there— by members of paramilitary bodies or by the other killers from the other section of the community. From time to time, there have been outbreaks of factional violence between or within paramilitary bodies on the same side of the community divide. There is gangsterism under the guise of political motivation. These aspects, especially the reciprocal sectarian shootings and bombings, have claimed a great many lives.
But although the terrible circle of violence has affected all sections of the community in the North, the principal element in the conflict is undeniably the armed campaign of violence conducted by the IRA against the security forces and against the economy and life of the area. It is common ground, I believe, among all of us here that the divisions in the Northern community as a result of history, the discontent and frustration on the part of the minority consequent on the way in which the area was governed during the 50 years of devolved government and the resistance offered to the implementation of legitimate reforms campaigned for in a non-violent way provided ample potential for conflict in Northern Ireland. Nevertheless, the immediate cause of the deaths and injuries daily inflicted by bomb and bullet was the campaign of armed violence launched by the IRA. The appalling assassinations of Catholics by Loyalist paramilitary organisations carried out by way of reprisals for the murders and bombings by the IRA, and the subsequent systematic and equally horrifying series of counter-assassinations and counter-bombings resulted in the ghastly spiral of tit-for-tat killings for which no end is in sight.
The Government have repeatedly stressed that the violence in Northern Ireland is overwhelmingly indigenous to the area. The evidence for this is clear to all who wish to see it—for example, in the places of origin of those convicted for relevant offences in the Northern courts. We have said that the number of violent incidents involving persons crossing into the North from this side of the Border has been very small in relation to the scale of violence generally in the North. Again, the record continues to bear out the truth of this. We have pointed out that in the context of the overall scale of violence, the problem posed in the past by fugitive offenders or alleged offenders was, in numerical terms, of marginal significance.
In setting out again these facts of the situation, I do not wish to suggest that, even if there were no violence here or no implications for the institutions of State in this part of Ireland, we could remain unconcerned or inactive. We could only remain unmoved by the sufferings of the people in the North if we were to turn our back on all that we have professed since the foundation of the State and indeed long before. So far from doing anything of the kind, the primary aim of our policy has been the safety of the lives of all in Northern Ireland, without distinction of creed or political affiliation.
All but a very small number of terrorist crimes in the North are committed by persons from within that area. It must be recognised, however, that much of the violence is perpetrated by persons and bodies claiming to act in the name of the Irish people.
While this claim has repeatedly been repudiated by our people, it imposes a heavy duty on us here to do all in our power to ensure that this part of the country is not a base for attacks in the North, or a source of arms or explosives, or a haven for fugitives. The Government have accepted this duty and acted on it. Senators are aware of the very considerable strengthening of the Army and of the Garda Síochána so that between them they now number almost 23,000 men; of the intensive anti-terrorist activity of the security forces, particularly in Border areas; of the legislation passed enabling us to try persons accused of committing terrorist offences in the North and, for some offences, in Britain or elsewhere; and of the strict control on the possession of firearms and on the storage, movement and use of explosives.
As I have indicated, our concern to protect lives in Northern Ireland has been a major consideration in all we have done in the field of security. We have also recognised that the prospects of securing agreement on a form of government to which both sections of the Northern community would give their allegiance would be greatly enhanced if the incidence of violence could be reduced and ultimately eliminated. A further reason for doing whatever we can to curb the violence in the North is the realisation that it is postponing to a distant future any hope of establishing a sense of common identity and interest between the two main streams in this country.
These are all considerations of the highest importance. But overriding all of them is our concern with the public safety and with the preservation of the State. The first duty of a democratic government is to protect the lives of their citizens and to allow them to live and go about their legitimate business in peace. We have seen in Northern Ireland how violence, if it gets out of control, can destroy personal and community life. There has been an overspill of that violence into this part of the country, an overspill with the most serious consequences and with even greater implications.
Since 1974, 37 people have been killed in the State as a result of bombing connected with the situation in Northern Ireland. The majority of the deaths occurred as a result of bombings which were explicitly stated to be in reprisal for acts of violence in Northern Ireland. There were a number of killings by IRA assassins, including that of Senator Billy Fox. Members of the Garda Síochána lost their lives in the course of duty and were shot at or threatened by armed men. In the same period, since 1974, 189 people were recorded as having suffered injuries, some of them very serious in nature, as a result of bombings apparently connected with the conflict in Northern Ireland. There were a number of cases where people were kidnapped or held hostage. Particularly noteworthy were the kidnappings of Lord and Lady Donoughmore and Dr. Herrema and the attempt made to obstruct by intimidation the executive branch of government. We have had hijackings of cars and helicopters. A number of workshops producing bombs, mortars and other weapons of destruction have been discovered. There have been a large number of armed robberies, very many of them, perhaps the great majority to secure funds for the purposes of unlawful organisations. Since 1974 there have been no less than 81 armed bank raids and 56 armed post office raids. These included a number of mail train robberies of a very serious character. I have referred only to some of the more serious incidents since 1974. There were many others and, of course, they went back beyond 1974. Indeed, intimidation and fear on the part of witnesses and jurymen compelled the previous Government to issue a proclamation in 1972 that the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order and to bring Part (V) of the Offences Against the State Act into force and to establish the Special Criminal Court.
The Government have faced the situation head on. We have met force with the legitimate force of the State and of the law. As I already mentioned we have taken far-reaching steps to deny the subversives access to arms and explosives. We have greatly strengthened the Army which is now at its highest strength in peacetime. We have increased Garda strength to record levels. We have greatly improved the equipment available to both the Army and the Garda. These measures have had to be taken at considerable cost at a time when we are facing grave economic difficulties. We have strengthened the law. Above all, we have given the security forces our wholehearted support in their efforts to bring to justice those who commit crimes of violence or who are members of irregular and unlawful organisations.
The steps we have taken and the efforts of the security forces have led to the apprehension and conviction of those responsible for a great number of the crimes to which I have referred. Since this Government came to office, there have been 612 convictions in the Special Criminal Court. That is up to the end of last month.
I wish at this point to pay a well-deserved tribute to the officers and men and women of the Garda Síochána and of the Defence Forces for the way in which they have discharged the duties placed on them, often tedious and sometimes dangerous, in protecting lives and property and in seeking out and arresting ruthless and desperate men. I also want to express our appreciation, in equal measure, of the services rendered by the officers of the Prison Service who have the custody of these people when they are caught and convicted. Their job is a very difficult one in current circumstances. On behalf of the Government and of all our people, I want to assure every man and woman in all three bodies that their efforts are deeply appreciated.
It would be extremely unwise, however, to adopt a complacent attitude as a result of the security forces' successes. The number of armed robberies in the State remain at an intolerably high level. In Northern Ireland, the tempo of armed attacks and bombing by the IRA has been stepped up again. And within the State we have had the clear challenge posed by the events to which I referred in my opening remarks. The challenge is from a body operating within the State but organised on a 32-county basis and with a substantial armed membership in Northern Ireland. In the Government's view, the situation requires that the Government should be able to take emergency powers to whatever extent may be necessary to crush the armed conspiracy against lives and democratic government which faces the nation.
I want to assure the House that there is no intention on our part of operating in an arbitrary manner under the immunity conferred by this motion, if passed by both Houses. The Government are conscious that for them to act in such a manner would be to play into the hands of those threatening our democratic form of government. It is our wish and our intention to proceed at all times in accordance with the rule of law. But the very existence in the Constitution of the Article under which this resolution is moved is evidence that there are circumstances in which a democratic government may be compelled to limit the exercise of individual rights in the interests of protecting from attack the ordered community of the State, without which anarchy and armed repression would reign supreme and the exercise of individual rights and fundamental freedoms be utterly abolished.
While I appreciate that the only item before the House is the motion, I think it would be unfair to the House and indeed unrealistic, if I were not to indicate what the Government's intentions are by way of follow-up action to the resolution. In fact, as Senators are no doubt aware, there has already been circulated to the members of the other House the text of a Bill entitled the Emergency Powers Bill, 1976 the effect of which in brief is to allow persons arrested in certain circumstances to be kept in the custody of the Garda for up to seven days. This is in fact the only new power which the Government are seeking pursuant to the resolution although Senators no doubt will also be aware that a second Bill relevant to subversive activity but not dependent on the passing of the resolution is also in the hands of Members of the other House.
If the House should wish me to make any more detailed reference to the Emergency Powers Bill, which it is the Government's intention to have brought before the House pursuant to the resolution, I would be happy to do so, but, as the text of this Bill is not in fact formally in the hands of Senators, I have deemed it inappropriate to say any more about the measure at this stage. The provision would lapse after 12 months from the date of the passing of the Act unless continued in force by Government order. When it had lapsed it could be reactivated by Government order. The Emergency Powers Act would automatically expire when the Dáil and Seanad resolved that the national emergency proposed to be declared had ceased to exist.
I am deeply conscious that the House is being asked to take a step which has profound implications but I believe that it is a step which is called for by the gravity of the situation. It is necessary to meet and overcome the challenge thrown down by the recent outrages by an illegal armed organisation dedicated to the overthrow of the institutions of this State and to enable the security forces to more effectively combat terrorism from whatever quarter. There is no question of the measures proposed being an attack on civil rights. They are measures to to be enacted by the elected representatives of the people and represent the will of the people in the dangerous circumstances I have just mentioned.
The crimes perpetrated by the men of violence have brought discredit to the name of Irishman throughout the world and shame to our own people. Our past has been devalued and our future threatened by their outrages. Our people have repudiated them repeatedly at the ballot box. I ask this House to repudiate them again and with special force by its assent to the motion before it today. Let the message go out clearly from here that the Irish people, through their elected representatives, their democratic Government and their security forces are pledged to break and rid our country once and for all of this conspiracy of hate and evil.
Tairgim:
Na litreacha "(a)" agus "(b)" a scriosadh agus na focail go léir i ndiaidh "(b)" a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"ag féachaint don fhoréigean leanúnach i dTuaisceart Éireann agus do chor an dlí agus an oird agus na slándála sa Stát a bheith ag dul in olcas, go n-ordaíonn Seanad Éireann don Rialtas leorphearsanra agus leor-acmhainní a sholáthar agus a úsáid chun sábháilteacht agus dea-rath gach uile shaoránach a áirithiú, agus gach beart is gá agus is iomchuí a dhéanamh chun treascairt a chomhrac agus a chloí mar aon le gníomhaíochtaí eagras neamhdhleathach."
I move:
To delete the letters "(a)" and "(b)" and delete all the words after "(b)" and substitute therefor the following:
"having regard to the continuing violence in Northern Ireland and the deteriorating law and order and security situation within the State, Seanad Éireann directs the Government to provide and to utilise in full, adequate personnel and resources to ensure the safety and wellbeing of all the citizens, and to take all necessary and appropriate steps to combat and defeat subversion and the activities of unlawful organisations".
In moving this amendment, I wish to put this debate in perspective by stating categorically and in as unqualified a manner as I can our attitude as the major political party in this State, towards subversion, men of violence and unlawful organisations connected with subversion and violence. We are totally opposed to subversion in any form coming from any unlawful organisation. We are totally opposed to any form of violence being in any way a useful factor in achieving the unity of Ireland. We advocate the achievement of that by peaceful means and by bringing together that unity of hearts among all Irishmen to which all responsible people on this island subscribe. I state that categorically because it is important that at the present time we take initiatives of peace and we do not play in any way the men of violence at their own game either by supporting them in any way or by introducing legislative measures that may only add to the role of repression.
Perhaps this occasion should have been used by the Minister for Justice to mention the recent peace initiatives and peace marches that have been organised by women of all denominations, North and South, to achieve that unity of hearts of which I speak. That is the constructive thinking at the present and that is where constructive thinking is emerging. In discussing a matter of this kind we can certainly do without any attempt to score parliamentary points, any attempt at window dressing, or any attempt to use a sledge hammer to crack a nut. What we are concerned about, in the most delicate and sensitive period in our history, is to ensure that there is an end to violence, that we can move along the road towards unity through peace and that we can achieve that by adopting in this part of Ireland such legislative measures as are in accordance with that type of philosophy. We have seen how legislative violence under the Stormont Administration led to the chaos that we have at present. We must be ultra-careful in this democracy of ours that all parties have laboured hard to build over the past 50 years.
We must be very vigilant to ensure that any measures we adopt to deal with violence are in accordance with the principle and the philosophy of a democratic State. That is why the first Cumann na nGaedheal Government and the Fianna Fáil Government that followed embodied in their respective Constitutions the liberty of the individual, the principle of habeas corpus, written into Article 40 of the 1937 Constitution and also enshrined as a central principle in the Convention on Human Rights to which we are a subscribing party. This motion is in effect suspending the application of the Constitution in regard to that right so as to enable, under the Emergency Powers Bill, detention or internment for seven days. That is what we have here and I cannot avoid, a Chathaoirleach, referring to the Emergency Powers Bill because the purpose of the motion is to bring that Bill into operation.
General references are quite in order.
We have in the Emergency Powers Bill, consequent on the passing of this motion, a provision to suspend the operation of the Constitution in regard to the most vital section or article in the Constitution, which is Article 40, involving the right of the individual not to be detained by the State without being brought before the courts. That fundamental right has existed for centuries in the common law system. It might be regarded as the fundamental lynchpin in regard to the freedom of the individual and is equally written in and guaranteed in the Convention on Human Rights.
I take issue very strongly with the Minister in not spelling out this in his opening speech. He did make an apology for not going into the Emergency Powers Bill but surely, either in comment or explanatory memorandum, or in speech here, we should have been told before now precisely why this motion on which we have been asked to vote is introduced. This motion is introduced in order to suspend the basic constitutional right of any person detained by the State to have the issue of his detention brought before a High Court judge—habeas corpus, the fundamental right which broke the despotic power of the monarchy and the feudal laws in Britain, the fundamental right that is transferred into the American Constitution, the Canadian Constitution, the Australian Constitution and the New Zealand Constitution, the fundamental right to which we have subscribed in our two Constitutions and which is written into Article 40.
It is quite evident that this is internment by the back door, recurrent internment. That is what it amounts to because under subsection (3) of section 2 of the Emergency Powers Bill, it is now proposed to extend the period of 48 hours within which a person may be arrested under the Offences Against the State Act. Forty-eight hours was regarded as a very extensive period when it was introduced in the Offences Against the State Act code. That period is now being extended for a further five days after arrest if the Chief Superintendent so directs. After the seven-days' detention or internment without trial, or without being brought before the court, that person on his release after seven days can be rearrested under another section of the Offences Against the State Act and incarcerated for another seven days without habeas corpus operating to insist that the explanation for his detention be brought before the court as a matter of right.
This motion is before us to enable that to be done. What we say in our amendment to the motion is that, by implication, it is not the appropriate way to deal with this problem. This is the sledge-hammer cracking the nut. This is an Aunt Sally type of politics, building up a matter that can be dealt with by other legitimate, constitutional and proper legal means. The amendment to the motion agrees with the assessment of the Minister in regard to the continuing violence in Northern Ireland, agrees with the Minister on the deteriorating law and order position within the State.
We suggest bluntly that the Government should provide and utilise fully adequate personnel and resources to ensure the safety and well-being of our citizens. Is this being done at the present time? Are not the two offences to which the Minister refers in his opening remarks, and which I strongly condemn—the introduction of explosives into Green Street court house and the unfortunate and tragic killing of the British Ambassador—offences under the ordinary law of the land? We do not need to suspend the Constitution to apprehend the people responsible for these offences. The tragic murder of the British Ambassador is an offence which under the law of this land, and in my view rightly so, is accountable after conviction to capital punishment. The Minister does not need the Constitution to be suspended in order to apprehend the perpetrators of that crime. I do not want to go into it but those two offences did show to put it mildly, a security situation that could be tightened up internally either by more personnel or better deployment of resources.
Either way, this represents an administration problem. It does not represent the problem that demands the suspension of the Constitution and the elimination of the basic right of habeas corpus and the introduction of detention without trial in recurring periods of seven days at the dictates of a Chief Superintendent. This amounts to the internment without trial that failed so disastrously in the North of Ireland after it was introduced by Mr. Brian Faulkner, the type of approach to this matter of adding institutional violence to individual and organisational violence. That response on the part of Mr. Faulkner in the North of Ireland was shown to be a lamentable failure. We said so as the Government and refused to introduce it. The present Government are now seeking to bring in that system of detention without trial. I would call it recurrent internment.
As our amendment points out, one can deal with this matter and other matters that have arisen by full utilisation of the personnel and resources available to the security authorities in the State. All necessary and appropriate steps can be taken to combat and defeat subversion and the activities of unlawful organisations. I am glad the Minister said something which I was going to refer to myself—the statistical fact that the level of deaths and injuries is now high but it is not as high as it was in 1972. Nineteen seventy-two was the worst year since 1969 in regard to violence, deaths and injuries in Ireland. We brought in the Offences Against the State (Amendment) Act, 1972, because of the high peak of crimes of violence that existed at that time. The Minister says that was the worst year. Today they are still bad. I agree with the Minister on that.
I do not like taxing people too much with their sins of the past. We are all vulnerable in that respect. One reads the reasonable tone of our amendment to the motion and then I listened to Senator O'Higgins objecting to me using the remark "window dressing". I would quote, very briefly, Deputy Cooney, as he then was, speaking in the Dáil on the Offences Against the State Bill, 1972, as it then was, on 29th November, 1972, the year in which, he has just stated, the level of violence was at an all-time high in Ireland as a result of subversion and of the activities of unlawful organisations. At column 276 of the Official Report, Deputy Cooney said very emphatically, and I quote:
What is required is an amendment and a strengthening of the will of the Executive rather than window dressing of a legal fashion.
In his concluding remarks, at column 290 of the Official Report on 29th November, 1972, he said:
It is window dressing on the part of the Government to ask us to give them a power that turns the rights of the citizens, the very freedom we are here to protect into a nullity and I would ask this House, when it comes to decide how it votes on this particular matter, to decide in conscience if the Minister has demonstrated that the present laws are inadequate to justify this awful interference with individual freedom. It is a matter of conscience for every Member of this Parliament on which he must make up his own mind. If he feels that the rights of the individual are now threatened beyond a tolerable limit consonant with the necessity to protect democracy, then he must in conscience vote against this Bill. No case has been made, in my submission, for voting for this Bill and I ask this House to reject it.
That Bill brought in the offence under which the Minister has made practically all the arrests in connection with subversion since he became Minister for Justice. In the course of his brief, the Minister mentions the substantial number of arrests in regard to crimes of violence in the State that have been made since he became Minister for Justice. The Minister takes some pride in that fact, but he has not stated the particular section of the Offences Against the State legislation under which the majority of these arrests were made. The Minister is well aware that the operating section of the Offences Against the State legislation that is most effective in dealing with subversives in our community at present is section 3 of the Offences Against the State Act, 1972, to which the Minister took such grave exception in November, 1972, and which he described as window dressing. It has been the most useful, practical piece of legislation in so far as the Minister for Justice is concerned in dealing with this problem which we all abhor. The importance of that section, which was sorely criticised by Deputy Cooney, as he was then, and which he is now operating as his main legislative means of dealing with unlawful organisations, is that the people apprehended must be brought before an Irish court, open and subject to the scrutiny of the media. That is a very fundamental safeguard.
At that time, we resisted pressures from the British Government in regard to bringing in internment and persisted in ensuring that as far as possible, however tough the laws and penalties might be in dealing with subversion, they would be laws and penalties subject to the scrutiny of our courts. Section 3—the section to which the then Deputy Cooney severely objected before there was a swift retreat beaten on a famous evening—however tough, has the merit that the Chief Superintendent who states he is satisfied that the person apprehended is a member of an unlawful organisation must do so in a witness box, be subject to cross-examination and his statement can be rebutted by the offended party. In some cases where the offended party, a member of an unlawful organisation, has done so, he or she has escaped. That avenue was open. The cases are open to reportage in our national newspapers and on the radio and television.
That is the difference of approach between the way we decided to go about it and what the Minister is now deciding to do in this motion. In this motion the Minister is deciding to remove the courts out of the situation altogether. The motion will have the effect of suspending the Constitution in so far as it relates to the Emergency Powers Bill which is consequent on the motion. In effect, that means that a person can be detained and rearrested and detained again. We have here what I would describe as a backdoor method of recurrent internment by the Minister who is taking this particular class of offender away from the scrutiny of the courts and subjecting him or her to this form of detention.
Is it really necessary to do this? This again is where the Minister has fallen down in presenting his case to us. The only two offences he raises as being the reason that prompted the Government to bring in this package of legislation are offences that can be dealt with under the ordinary security arrangements that exist at present, if they are rendered more effective, and under the ordinary law of this land. The blasting of Green Street Courthouse with explosives and the murder of the British Ambassador are two common law offences that would have been offences long before the Offences Against the State Act was ever heard of. The Minister is well aware of that.
I would emphasise that we in Fianna Fáil, who introduced the Offences Against the State Act in 1939 and strengthened it in 1972, support the Minister in the aspects of this package of legislation that strengthen the Offences Against the State Act. We support the Minister on the legislation in which penalties are being increased. We support the Minister fully on the increased penalties he suggests. I realise penalties are largely a matter for the courts but, at the same time, this will act as a psychological lever on the courts, or hopefully it will, if the Oireachtas shows its abhorrence of these offences by suitably increasing the level of penalty. I go along with the Minister on that and so do the Fianna Fáil Party.
I go along with the Minister on the increased powers of arrest for offences against the State which are given to the police. I am giving a warning here that we do not go along with the Minister in giving Army personnel down to the rank of private the same police powers of arrest. We feel very strongly that the answer here is to recruit more Garda personnel. What we want here are more Garda with powers. We do not want Army personnel who are not trained for this job to have these powers.
We go along with the Minister in securing increased powers of arrest on suspicion of an offence having being committed, or about to be committed, provided these increased powers reside with the police force of this nation, trained, educated and fitted to perform these duties. We feel very strongly that the existing ordinary legislation can be firmed up, as it is done in certain sections of the Criminal Law Bill which we will support—the sections I have just mentioned. We feel this can be done effectively.
The Minister has certainly introduced a very tough penalty for the offence which he decried in 1972. He decried section 3 of the 1972 Bill giving this right to the chief superintendent. He was severely critical of it then. We had a penalty of two years. He now proposes a penalty of seven years. We support him in that. We support him in all the increased penalties relating to offences against the State and all the increased powers he proposes to give to Garda Síochána personnel who are seeking to apprehend people in connection with offences against the State. The Minister has that assurance of our position.
We will not support the Minister in suspending the Constitution and depriving apprehended people of the right to the protection of habeas corpus. We will not support the Minister in taking this drastic step of declaring a national emergency for that purpose when he has the wide-ranging powers in regard to arrest on suspicion by police personnel which we willingly give him and which he has to some degree already under the Offences Against the State legislation which he now seeks to enhance under this package of legislation. We are willing to give him that.
We will not give him the power to suspend the Constitution and take this basic human right from our people, especially when one realises the consequences of this. This sort of window dressing is only giving the impression of activity when, in fact, nothing is really being done. We have not got a single iota or word of explanation prior to this by way of statement, or in an explanatory memorandum, or from the Minister, as to why this ultra-excessive reactionary power is sought to be acquired by the State. When there is this panoply of law and regulation and power of arrest existing under the whole corpus of the Offences Against the State Act code, now extended under one of these Bills, the Criminal Law Bill, when all of that exists and is about to exist, with very much increased penalties to all of which we suscribe, why is the Minister going through this charade—and if it was only a charade it would not be too bad—which will be seriously damaging to our economy and which has already caused it considerable harm?
It is not doing Ireland any good to have a national emergency declared, and to have a state of national emergency in which fundamental human rights are abrogated and by reason of which we may have to derogate from the European Convention on Human Rights. We have succeeded very recently, as a result of our initiative when in Government, in securing an order specifying that our allegations in regard to torture by the British Government of offenders in Northern Ireland were fully justified. We will now have to derogate from that precise convention under which we brought our proceedings, by reason of our abrogation of the Constitution as proposed by the Minister in this motion.
Surely all of this is serious enough to warrant some degree of explanation from the Minister. Yet we have not had this. We have had no indication from the Minister why he wants seven-days' detention, why he wants the Constitution suspended so that by arrest for seven days, and rearrest for a further seven days, and rearrest for a further seven days, people can be kept indefinitely without being brought before a court because their rights of habeas corpus have been taken from them. To put it mildly that is surely a serious enough matter to warrant an explanation from the Minister for Justice and the Government. It is some weeks now since these proposals were announced. They have been published for a week. Yet we have had no explanation up to now. I do not know what the Taoiseach has said in the other House but we have had no explanation as to what circumstances have arisen which warrant this basic departure from the rule of law and the declaration before the world that we are in a national state of emergency. The Minister owes it to the House here and to the nation as a whole to spell out precisely the reasons why this is being done. If the Minister did that it might enlighten all of us to some extent.
I can see no reason why this is being done at present. I can see why the Criminal Law Bill, the other measure in the package, is being brought in. That is the type of measure we brought in, in 1972. It is a tightening-up measure in regard to offences against the State. It is a firming-up measure with increased penalties as I have already said, and some new offences. It is a measure on which we will have, hopefully, a very constructive debate both in the Dáil and Seanad because, in principle, we support the idea behind bringing in that measure. We will have some important amendments to make on it in regard to the incitement provision which we think is too widely drafted under section 3. We will have some very real opposition to the provision extending the police powers to the Army. Apart from that, we agree with the broad principle of a measure firming up the existing Offences Against the State legislation.
Without explanation, and even with it, we will not agree to this. No matter how one rationally assesses this matter, upside down and inside out, one cannot see why the Constitution has to be suspended and this basic human right denied to our citizens, and internment brought in, or detention without trial on a recurring basis in effect. All to what purpose, when we have already got some very Draconian measures which we introduced, and there are further such measures with Draconian penalties proposed by the Minister in the Criminal Law Bill which can be provided under ordinary legislation.
Under the Offences Against the State Act legislation enough powers are available to the State and the Government if there is a political will to implement them. If the political will is there, the legislation is already there, subject to being firmed up, improved and strengthened. Subject to the political will being there to provide the resources and the personnel, we can give the proper security cover required to protect the State and its people without bringing in this measure. Up to now we have got no explanation. We would like to hear from the Minister why this very serious step is being taken. I cannot see in any rational investigation of the matter how any reasonable explanation can be forthcoming. We will oppose this motion in the other House and here. We will oppose the Emergency Powers Bill. We will support many aspects of the Criminal Law Bill and offer constructive and responsible criticism on the Committee Stage.
The real problem in this country at the moment is the state of the economy. There is not much point in going through the arid motions of depriving people of their rights if there are to be no people here in gainful employment and we are not to have the sort of social development and expansion in the economic sense that we all wish. The two are related. If the Government act in this sort of ham-fisted manner, heavy-handed manner, and produce a state of emergency out of the air, and a general image of martial law and a national state of emergency, that is the sort of stuff we were used to seeing emanating from South American banana republics over the years. It does not help the economy. That is precisely the sort of extreme, heavy-handed over-reaction which the Fine Gael Lord Mayor of Dublin warned his colleagues against before the appearance of these Bills. That is the sort of heavy over-response or over-reaction which traditionally we get from crude dictators in the remoter parts of South America.
That is the sort of reaction that deters investment in the economy. That is the sort of reaction, by reason of the publicity it has got, that has already affected investment in our economy here, and the two are entwined. We will only get the substantial investment we require, both from our own investors and from abroad, if we create the climate for it. The climate for such investment is grievously damaged by this sort of ultra-reaction and creation of a panic state of emergency, not required by the facts, not required by a Government who can, as we suggest in our amendment to the motion, utilise their present resources in the way of personnel and other resources to ensure the safety and well-being of our citizens. They have sufficient powers already and will have more powers under the sections of the Bill to which we have no opposition to handle unlawful organisations under the law of this land.
That is the way investors expect Governments to behave. They do not expect Governments to generate national emergency crises out of the sky and to quote as the justification for that in the Minister's opening statement to this House two offences which could be dealt with under the ordinary law of the land: the offence of murder and the offence of damage to property caused by explosives, the perpetrators of which are still at large. It is to this whole area of recruiting more personnel, deploying resources more effectively, and improving police methods, that the Government should be directing their attention. They should be directing their attention possibly to reopening many of the police stations which we closed in happier days, having more personnel on the beat in touch with the people and in a position to gather information, having a far stronger police presence on the ground, both on the beat and in contact with people in every part of the country, in every townland and street. That is the area to which the Government should be directing their energies.
There are 2,500 applicants for 500 Garda positions or something of that order. If I am wrong, perhaps the Minister would correct me when he is replying. The Minister spoke about how the Garda strength and Army strength had been increased. It is not enough to deal with the problem. If the problem is as serious as the Minister states—and I am inclined to go along with him—the Minister should have more Garda personnel and more Army personnel. What is wanted is more personnel and greater utilisation of existing powers, rather than creating new legislative powers which do serious harm in the area of human rights, in the area of the freedom of the individual, in the area of the suspension of the Constitution, and do nothing except harm and damage to Ireland's image as a free and democratic State.
I regard it as the very essence of bad Government to over-legislate through over-reaction. If over-reaction after the unfortunate murder of the British Ambassador has resulted in a national state of emergency being declared here, that is bad Government; that is bad administration; that is jumping into an easy headline and setting up a smokescreen of diversionary tactics. That is not good enough. That is reacting; it is not constructing. The only constructive steps we have seen in recent weeks have been the steps taken by the people of all denominations who are acting together in the interests of peace. That is constructive. It is very necessary to ensure that the responses on the part of all of the Executives concerned with administration in Ireland today—the Executive here as well as the Executive in the North and the Executive in Britain—do not become intolerant, or brutal. If that sort of response develops and if the cycle of institutional violence is added to the unfortunate cycle of organisational and personal violence, that is bad. That is serious.
I would suggest to the Minister and to the Government that they should bear in mind our generously constructive attitude. The Minister and the Government can be fully assured that we will support the adoption of any legislative measure designed to strengthen the existing situation in regard to offenders against this State no matter where they come from. We will support fully the principle behind the main purport of the Criminal Law Bill, subject to the amendments we will put down which I have indicated. We will not support the Minister in abrogating the Irish Constitution. We will not support the Minister and the Government in taking away the basic human right of being charged before the courts of this land with whatever offence for which one is being detained. We will not support the Minister in that.
Recent events have fully supported our approach. The approach of Mr. Faulkner when we were being pressurised was proved wrong. Internment bred its own reaction and counter-reaction, and this sort of internment involved here in section 2 (3), internment by recurrent detention, will not work either. I believe very candidly —and I have reason for this belief— that the sort of power involved there, and the sort of power involved in giving the Army personnel police powers, is resented and not liked at all by the members of the two security forces concerned. This is the really serious aspect which could render the whole matter nugatory as far as the Minister and the Government are concerned.
Police and Army personnel today are civilised citizens of the State. They do not want to be cast in this sort of role, particularly having regard to the very fine traditions of the Irish Army and the Garda Síochána. My information is that these undesirable roles which are being accorded to them by the Government in this legislation are not roles which the Army or the Garda Síochána would seek for themselves. The Minister is bringing in this motion and the emergency legislation consequent upon it. He is bringing in legislation against the whole principle of human rights and against the whole principle of trial before a court. As well as doing that, and doing an injustice to that basic principle enshrined in our Constitution, he is also doing a serious injustice to the personnel and the administration of the two security forces of this State who, on my information, do not like at all what is being imposed upon them in this legislation.
They realise fully that what is wanted is far greater security administration, far more personnel, much more money devoted to the problem of security, and the extension of existing laws within the criminal law of this land without flouting the Constitution in any way, the human rights guaranteed by our Constitution, and the Convention on Human Rights to which we subscribe. Surely it should be the purpose of what I would hope we have here, and have had heretofore— a civilised democratic State—to ensure that all security measures be taken consistent with bringing subversion under control and, at the same time, consistent with preserving basic rights. The Minister should come in here, and the Taoiseach in the other House, and tell us, the elected representatives of the people, fully, entirely and openly, how the existing legislation, how the existing resources, how the existing personnel, are unable to deal with the problem, how and in what manner the whole operation is falling down, and in what way detaining people for seven days without bringing them before a court will resolve the situation. In what way will that secure the apprehension of the murderers of the British Ambassador? In what way will that apprehend the people who planted explosives in Green Street courthouse? It cannot do it and the Minister knows well it cannot do it.
It is the duty of the Government to explain to us what they want and to be frank with us and the people. If the Government come to us in that spirit, I can assure the Minister for Justice that the Fianna Fáil Party will support them fully in every aspect required by him and by the Government to deal with subversion and men of violence, provided it is not something, as is enshrined in this motion, designed to flout the Constitution without any necessity. If he is suspending the Constitution, as he is proposing, he should certainly prepare a very serious dossier of reasons why. We have not got a single iota of explanation in the Minister's opening speech as to why. That in my view, is bad government.
In this part of Ireland, in the free State which we have, the independent State which we have, in the Republic, we have built up a reasonably constructive and thoughtful, responsible electorate, and they want to know why and, so far they have been denied an explanation. They will not go along with the Minister and the Government and give them support in their hearts or with their votes at the next election unless they are told why. They want to be informed.
I feel very strongly that this elaborate smokescreen has been erected by the Government to show cause— maybe to the British Government, I do not know—to somebody that they are doing something. In fact, the whole nub of the security problem lies fairly and squarely with them and can be dealt with by them if they get on with the job and do it effectively, stop erecting smokescreens, stop—to use the Minister's phrase— window dressing, stop playing politics with this very serious matter. They are doing serious damage to the State by erecting a system of emergency, by declaring a state of emergency without any real basis for it. Until there is a basis for it, the Minister and the Government are doing a grave disservice to our society and to our economy: our society in the form of the protection and enhancement of human rights, and our economy in the form of lack of trust and confidence in it by reason of the creation of an entirely artificial state of emergency. The Minister as the Minister responsible for the administration of criminal law should be getting on with the security job, making it fully effective and, as we say in our amendment here, utilising all the personnel and resources at their disposal, and coming in here with rational legislation which does not suspend the Constitution, rational legislation which we will back up to the hilt to deal with crimes of violence, subversion and unlawful organisations.
I second the amendment to the motion.
I do not want to make a long speech about this but I wonder if anyone listening to Senator Lenihan would realise that, under the terms of the definitions he has used, the Constitution of this State was suspended during the entire term of his membership of Fianna Fáil Governments. The Minister has explained in his opening statement that what we are asked to do by reason of this motion is to declare at an end the national emergency which was declared by reason of the resolutions of the Dáil and Seanad on 2nd September, 1939. From 1939 up to the end of 1972 and the beginning of 1973, Fianna Fáil, with the exception of a small break, were continuously in office. During all that period, by virtue of the resolutions passed on 2nd September, 1939, a state of national emergency existed in this country according to law. A state of national emergency existed by reason of the armed conflict taking place in Europe at the time.
That was never brought to an end by Fianna Fáil. There were pleas to them to bring it to an end. I heard pleas being made to them to that effect in this House, but it was never done. Did we hear then any talk about the Constitution being suspended? This Government are approaching the situation honestly and saying that the national emergency then declared by reason of the resolutions of 2nd September, 1939, is at an end. That is being honest.
We agree with that in our amendment.
They are saying there is a national emergency now, not by reason of the second world war, but by reason of the armed conflict taking place in the North of Ireland. It is high time some Government or some Minister had the courage to tell the people that we are living in a state of national emergency by reason of the events in the North. That is what this motion is asking this House to declare. That is what the Taoiseach is asking the other House to declare. He is inviting them to pass a similar resolution.
It is high time that we stopped pussyfooting in this country either with words or with the men of violence. Either we believe that the vital interests of this State are affected by what is taking place in the North of Ireland, what has taken place in the North of Ireland, what is taking place in the south of Ireland and what has taken place in the south of Ireland, or we do not believe it. If we do not believe it, for Heaven's sake let us cut the sham of getting up every now and again and condemning violence and saying that it is doing harm to the people of this country and to this State. I do believe that the vital interests of this State are affected and that is why I am glad that this Government and this Minister have the courage to bring this motion before the House and ask us to pass it.
We are dealing with questions which affect the security of this State and when State security is at stake there are bound to be calls about civil liberties, civil rights. There are bound to be questions about human rights, rights which are regarded as fundamental, and difficult questions have to be faced by everyone who is in public life. I make no secret about that and I never have done so. I spoke on the Offences Against the State (Amendment) Bill in 1972 from those benches. I made that point and I make it again here today. This kind of legislative package which is being referred to here today is one which is and always will be difficult for a party such as the party that I have the honour to be a member of, because we have different traditions in our party and we draw our inspirations from different traditions. We are a party that have always stood solidly for the maintenance of the rule of law and order, for the preservation and safety of the State. At the same time we have always been in the forefront of the defence of the rights of the ordinary citizen, and that is the kind of conflict that will always face legislators in a situation such as this.
We have to make up our minds as to what we are going to regard as the theme which is of paramount importance. Are we going to pussyfoot with violence for the sake of ensuring that in no way can we be said to stand on the toes of those who hold up the banner of civil rights and human rights and civil liberties? Are we going to pussyfoot with violence in order to avoid being criticised by those who are ever ready to criticise any administration that stands for the maintenance of law and order? I want to see preserved and defended and upheld, as far as is possible without jeopardy to the State, all human rights and liberties, but I do not want to see the State jeopardised in any way. As far as I am concerned the question of the safety of the State, the preservation of the State, the upholding of the rule of order in the State are of paramount importance in this situation.
When we hear a responsible Member of this House, an ex-Minister, charging that the Government by facing up to its responsibilities, by seeing the situation and calling it by its name, a state of emergency, is likely to damage investment in this country, I wonder where we are putting our priorities. Is there anything more likely to damage investment in this country, if you want to argue on that basis, than the murder of the Ambassador of a friendly nation who comes here depending on our goodwill and our security forces to defend his rights and his liberty and his person? About a fortnight after his arrival here with his wife and children the Ambassador of a friendly nation is blown to atoms in our midst. Is that likely to secure investment in this country? If we turn a blind eye to it is that likely to assist the situation? I think not.
That is only one of the incidents that have taken place in this country in recent years. The Minister has set out in detail the number of outrages, the murders and the maimings that have taken place in the north of the country and that have spilled over south of the Border. It is in that situation and in a situation where, even since this measure was announced by the Government, there have been a dozen or more incendiary bombs let off in this city within the past week that the Government come before Parliament and ask them to recognise the situation for what it is, that there does exist in this country a national emergency and that that national emergency has not its roots in the second world war but that it has its roots in the violence and the horrors that are daily occurrences in parts of our country. Either we have a vital interest in what is going on north and south of the Border or we have not. This motion suggests to this Parliament and to the people that we have. It asks us to declare:
that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.
Fianna Fáil's response to that is to say, "All right, now that we are forced to we will agree that the national emergency arising out of the second world war declared by the resolutions of the 2nd September, 1939 is at an end, but we will not go further than that. We will not agree that there is a national emergency arising out of the armed conflict taking place a lot closer to us than the armed conflict which gave rise to the national emergency declared in 1939."
They say instead that we should ask this House that, having regard to the continuing violence in Northern Ireland and the deteriorating law and order and security situation within the State, Seanad Éireann direct the Government to provide and to utilise in full adequate personnel and resources to ensure the safety and wellbeing of all the citizens and to take all necessary and appropriate steps to combat and defeat subversion activities of unlawful organisations, to take all necessary and appropriate steps. One of these steps which the Government think it necessary and appropriate to take is the introduction of this motion asking this Parliament and this people to face up to the situation—to call a spade a spade; to call an emergency an emergency; to call a national emergency a national emergency. Let us treat this once and for all as a national emergency. Senator Lenihan was right when he referred to the leadership being given in peace marches by the women of Ireland who recognise the national emergency and that the people who have been committing these horrors, purportedly in our name, have no right to do so, and have never secured a mandate from the Irish people at the ballot box. They are being repudiated by the marching feet of the women of Ireland who are holding up the banner of peace. Senator Lenihan is right to commend them for what they are doing. They are showing up the fact that the people who have committed these atrocities and who apparently intend continuing to do so have no mandate from the people of Ireland. They have no right to talk or act in the name of the Irish people or on behalf of the Irish nation. It is unrealistic to talk of these atrocities, to talk of the thousands of women marching for peace, and at the same time to shut our eyes to the fact that the situation resulting in that is one of national emergency. The Government are merely being honest, courageous and correct in what they are doing.
I do not want to play politics. Senator Lenihan's plea that we should not play politics in this situation is one which should be followed. I am not going to quote speeches of Fianna Fáil Members in this connection but I should like to refer briefly to the attitude of the Fine Gael Party as I interpret it now and as I did interpret it on the occasion when we were discussing the Offences Against the State (Amendment) Bill of 1972. On that occasion, on 2nd December, 1972, I said in this House that I detested the Bill and every section of it and I went on to say at Volume 73, column 1111 of the Official Report:
However, I abhor much more the violence and I loathe much more the subversion against which the provisions of this Bill are directed.
I could say exactly the same thing with regard to any legislation which, necessarily in this kind of situation, must have the effect of curtailing the liberties of any of our citizens or reducing their rights in any way. I said also on that occasion, at column 1112:
I make no secret whatever of the fact that the Bill posed particular problems for my party. On the one hand, the Fine Gael Party—the longest established constitutional party in the State—has always recognised and accepted and insisted on the recognition and maintenance of lawful authority and the rule of law justly administered. There are certain cardinal and fundamental principles which have always been part and parcel of the Fine Gael heritage: the support and sustenance of legitimate authority: the right of the people to govern in this parliamentary democracy of ours through the duly and lawfully elected representatives of the people; that there should be only one army and one peace force answerable to the lawful Parliament of this country, and acting under it, and that the institutions of the State should be upheld, preserved, and respected.
The concluding remarks which I had to make on that occasion at columns 1121 and 1122 were:
We want the State, whether it be in the form of this Government or any other Government, to have whatever powers are necessary to safeguard its institutions and to deal with subversive or illegal organisations.
I can stand over every remark I made when we were dealing with the Offences Against the State (Amendment) Bill introduced by a Fianna Fáil Minister for Justice in 1972. While I agree with Senator Lenihan that we should not try to play politics in this situation, I cannot commend him for his choice of language in relation to some aspects of this package before us. It is wrong, as the Minister has explained, to talk about this motion as suspending the Constitution, yet Senator Lenihan used that expression time and time again—
Hear, hear.
——in the course of his speech. If this were suspending the Constitution then the Constitution has been suspended—and suspended by Fianna Fáil—ever since 1939. It is wrong also to refer to this package of legislation as amounting to internment. Talking for myself when I say this, if we are not prepared to face up to the situation, sooner or later a Government in this country may again be faced with the question of the introduction of internment. As things are, let us remember that the only Government who never introduced internment in this country were the last inter-Party Government and the present National Coalition Government. Virtually every Fianna Fáil Government either introduced or toyed with the idea of introducing internment. Even the last Fianna Fáil Government, with the present Leader of the Opposition as Taoiseach, made a declaration some time in 1971 or 1972 threatening the introduction of internment and, as far as my recollection goes, that was before it was introduced in Northern Ireland. It opened the door for the introduction of internment in Northern Ireland. As far as internment goes, that is a word which Fianna Fáil should regard as a dirty word for them and they should sheer very far away from it. I recommend them to think along those lines in any other contributions they may wish to make to this motion. But I do not want to play politics. This situation is too serious for any responsible politician to play politics.
I am convinced that the Government are right in doing what they are doing. I am convinced that no civilised Government have the right to close their eyes or to look the other way when the Ambassador of a friendly nation is murdered in their midst. I am convinced that no civilised Government worthy of the name has the right to look the other way when bombings and maimings are taking place either in their territory or in the adjoining territory in which they claim an interest. I am convinced that, in the wording of this motion, the vital interests of this country are affected by what is taking place in the North by the armed conflict there and because I am convinced of these failures I fully support the Government and I recommend that this House should support the Government in relation to this motion.
This is of course a very serious matter we are discussing. This is the most serious matter that has come before us in this House for very many years. We have been listening to the Leader of the House discussing this. I get the strong impression from what he had to say that, first of all, he has no conception of just how serious this matter is and, secondly, he has no more idea than any of the rest of us why the Government see it necessary to bring in this motion. Senator O'Higgins spoke about the 1939 emergency which is only now being ended and suggested, I think it is fair to say, in effect that we had the Constitution suspended, as he puts it, all those years so why bother with a further suspension now? I agree that legally speaking this is a matter which ought to have been tidied up before now. The Coalition had nine years to do it. Fianna Fáil had longer to do it. Neither side did and certainly from a legal point of view one must regret that, but I hardly think that Senator O'Higgins or anyone else would suggest that when the great war which was the origin of the Emergency Resolution in 1939, ended 31 years ago, it would have been politically possible, even if they wished, for any Government to bring in legislation suspending constitutional rights on foot of a war which ended over 30 years ago. That suggestion is totally unrealistic and while it is good to see the legal aspect of this tidied up, for practical political purposes the emergency resolution of 1939 died many years ago. What we are dealing with today therefore is a totally new resolution which proposes to suspend the constitutional rights of citizens.
This I think is a matter of very great danger. One must regret it very much and must look upon it as a very serious and totally unnecessary threat to the civil rights of our people as safeguarded under the Constitution. The Constitution is, after all, the primary political document of this country. A motion to suspend—and I use this word in spite of objections taken by Senator O'Higgins because I think it is the only word one can use—the Constitution in this way ought to be taken only after deep consideration and for the most profound national reasons. What are these reasons in this instance? We do not know. We have not been told. I had expected that the Minister would come in today and tell us in detail why in the national interest it is necessary to bring in this motion. Senator O'Higgins speaks as if what was at stake was a sort of vague declaration that there was an emergency, the Government having the courage to tell the people that things were difficult, that there was a serious security problem and so on. We have no objection to the Government saying this to people. We know that this is the case.
Apparently Senator O'Higgins is unable to understand the real importance of this, a totally different matter. The Minister comes in here and without any explanation tells us that in certain vital respects the civil rights of our people as safeguarded in the Constitution must be ended. In case there should be any real doubt as to the effect of this motion, I cannot do better than quote the statement which was made in Dáil Éireann when a great world war was about to begin. It was made by the late Deputy William T. Cosgrave who was at that time Leader of the Opposition and a former President of the Executive Council. Of course he and his party agreed to a motion to declare a national emergency. There was no other step that anyone could take in view of the fact that a gigantic world war was about to break out which indeed continued for six years all around us, with the gravest threat to the current national existence. Obviously this is a matter which everyone had to agree with and it was passed unanimously with very little discussion. Deputy Cosgrave, in column 8 of the Official Report for 2nd September, 1939, said:
A very grave criticism of the measures would be that, on a decision being taken in both Houses of the Oireachtas declaring a case of national emergency, every power that the citizen has, and every right of the citizen under the Constitution, vanishes immediately.
He went on to say at column 9:
It may be naturally concluded by the ordinary citizens that the Constitution or the clauses of the Constitution which give him certain rights and certain safeguards—which cannot be abrogated even by legislation which passes through both Houses of the Oireachtas after due and careful consideration—can be immediately put into cold storage by the mere passing of a resolution by a simple majority in both Houses.
As a clear and cogent statement of the full implications of this motion before us it could not be better put. As Deputy Cosgrave stated on that occasion, by the simple passing of the resolution by a drilled majority in each House the rights of the citizen can be immediately put into cold storage. This is the really serious aspect of the motion before us and one should consider the position that arises in the light of that most accurate statement of the position and consider the position that arises when a Minister comes in urging us to put the Constitution into cold storage, as Deputy Cosgrave put it, without giving us any explanation.
The Minister went into considerable detail about the problems that we face in this country with regard to violence and security and he mentioned the appalling crimes which had been committed by various unlawful organisations, in particular the so-called provisional organisation. What he did not tell us is how this suspension of constitutional rights is going to help in ending this situation. If he had come in and said there is a whole string of things which must be done, which it is essential should be done, in order to end this violence that is affecting our country, then at least one would have some sort of reality in this debate. We would have something on which he could at least begin to consider whether the suspension of constitutional rights was indeed necessary.
The entire purpose of this, of this putting the Constitution into cold storage, appears to be the ludicrously irrelevant and, in a legal sense, unimportant matter of allowing the authorities to imprison a person for seven days instead of for two days; unimportant only in the sense, of course, not of the civil deprivation involved which is very important and one that we should look upon with horror, but unimportant in the security sense. Can the Minister stand up and say that it is impossible for him to, for example, find the murderers of the British Ambassador —this has been raised over and over again—or that it is impossible for him to find those who lodged the bomb in Green Street Courthouse unless he has this additional power of keeping people in custody for seven days instead of two days? From the-point of view of civil liberties it is a very serious and dangerous provision to be bringing in but from the point of view of security, in the absence of any explanation from the Minister, it would appear to be totally irrelevant.
One gets the impression that the Government, having drafted one Bill dealing with all the matters which are dealt with in the second Bill which ultimately will be reaching us—the Criminal Law Bill—were told that this particular provision was unconstitutional and said, "All right, let us put it into a second Bill and suspend the Constitution in order to put it through". The result is that we are suspending the Constitution and the constitutional rights of the citizen for a matter which, from the point of view of the security of the country or of finding these criminals who are perpetrating this violence, is simply irrelevant. One cannot conceive of how in any substantial way this provision is going to assist the authorities to track down these people.
The problem is that, once this motion is passed, a Government majority can in practice do anything. At the moment we are only promised this very minor, in the security sense, Bill, the Emergency Powers Bill, 1976; but this, or any other Government, can, once this motion is passed, do anything even though what they want to do is completely prohibited by the Constitution. They can suspend habeas corpus; they can deprive our citizens completely of their civil rights should they wish to do so. The protection of the Constitution simply disappears. All that is required once this motion is passed into law is that a Government majority in each House should agree to pass a piece of legislation which expresses itself as being brought in in accordance with the national emergency. It short-circuits the whole constitutional process. It means, in effect, that so long as we have this motion in being the Government can suspend the Constitution any time they like.
It was one thing to do this in 1939 when the great World War was about to break out, when the very provision of food for our people was in doubt, when our cities, both north and south of the Border, were exposed to bombing and were bombed and when the physical safety of the entire nation and every man, woman and child in it was in deadly danger. The Government of the day had to have rapid means of taking whatever action might be necessary irrespective of what the Constitution might say. It was one thing to do that then but to do it in present circumstances when, as the Minister has been pointing out, he has 23,000 men at his disposal, all the machinery of the State, Draconian legislation to be made still more Draconian by this second Bill which, as Senator Lenihan has pointed out, we are prepared, under the circumstances, basically to support, and all the other Government paraphernalia to deal with these security problems. Under these circumstances, one requires a very much more elaborate and detailed explanation than the Minister has so far given us.
We are asked to suspend the Constitution and no one knows why. It is patently obvious that Senator O'Higgins has no idea why. None of us has any idea why. The Minister may know why he wants these powers but he has not told us. It is not good enough to say that he did not feel it was necessary for him to say much about this because the Bill is not yet before us. The only justification for this motion is the legislation the Minister wants to pass under it but he has told us nothing about this. He said that the effect of this Bill, the Emergency Powers Bill, was in brief to allow persons arrested in certain circumstances to be kept in the custody of the Garda for up to seven days. He said that this was in fact the only new power which the Government are seeking pursuant to the resolution.
Is the Minister seriously suggesting that without this new power he is unable to deal with the security situation and that with this new power he will be able, for example, to end the violence north and south of the Border? Is the Minister suggesting that this new power, whatever its appalling implications from the civil liberty point of view, will have more than a marginal and nugatory effect on his handling of the whole security situation? He has told us nothing about this. In the absence of any kind of explanation one can only say that we on this side of the House are totally opposed to this motion.
Senator Yeats has adverted to some of the general principles, and my participation in this debate is to endeavour to clarify some aspects from the Labour point of view. I intend to deal with the broad principles and not the details of the various measures which will come before the House. A great deal has been said and must be said about violence and the growth in adult reasonable circles of an abhorrence of violence. At the same time it would be foolish to deny that our State, like practically every other State, was born in violence of one form or another. Even the world-renowned constitutional state, the limited monarchy of Great Britain, was borne with a supreme act of violence, the murder of the king providing the chief repository of legality.
The violence that gave rise to the present State of the Republic of Ireland was, of course, the Easter Week Rising followed by the War of Independence. From these two flowed the democratic structure and establishment, of which the present Seanad is a part. Easter Week, as an act of violence, in my view, was more than justified from the point of view of the traditional aims of the Irish people. It is not necessary to expand upon them. It had a secondary justification in that it led to a nationwide demonstration in one form or another which caused the English Government of the day to abandon their plan for the conscription of Irish manhood. In so far as the national resurgence of 1916 led to the defeat of conscripting Irishmen into the English forces, it certainly prevented the slaughter of tens of thousands of our men on the battlefields of Europe. The War of Independence that followed 1916 was finally given democratic sanction in the General Election of 1918. The whole movement of those days to which I have referred well exemplified the teachings of James Connolly to the effect that in times of peace there should be used the methods of peace —in other words, the ballot—while the bullet, a weapon of war, should be reserved only for times of international war when no other means are available.
Our present democratic State, which was born in these violent circumstances takes to itself the right of every democratic State of the defensive action when attacked. Every democratic State is justified, in my opinion, in using violent, even repressive methods, in order to preserve its continuity, to uphold its institutions and to permit the development of the social and cultural aspirations of its people.
The State of the Republic of Ireland is a democracy, not, of course, a perfect democracy, but where will one find such a thing as a perfect democracy? Its Government institutions are based on adult suffrage; its elections are free and not forced; its Press gives expression to conflicting political views and its military forces have always been subject to the civil power. It has shown by several changes of Government in the course of its history that it is not a dictatorship but a democracy, albeit a restricted capitalist one.
The present Government is constituted of a coalition in which my party, the Labour Party, shares power This Government arose from negotiations between the two parties, Labour and Fine Gael, in which I took part. When the agreement was completed we, on the Labour side, were fully aware that this matter of security would pose problems as our partner to the agreement have always had and have been known to have very strict views on the maintenance of law and order. We accepted this position as a calculated risk which to our minds was very substantially outweighed by the forthcoming benefits we knew would accrue to the working class section of our community through very substantially increased social welfare benefits, better housing and the development of a welfare state. The Chief Labour Party Whip, Deputy Barry Desmond, has supplied a very impressive statistic on Labour's participation in this Government. Out of 148 measures enacted or introduced to date by the Government the Labour Ministers or Parliamentary Secretaries were responsible for 61, or 40 per cent of them, a very fine record to start any coalition with. It is well to recall that this national agreement between the Labour Party and Fine Gael has been endorsed by very large voting margins at every level permitted by the Constitution of the Labour Party. After thorough and exhaustive debates the highest power in the party, the annual delegate conference, following a special conference devoted exclusively to debating this question, ended in endorsing that alliance.
We do not see in the present situation, which some may term a crisis, any valid reason for putting an end to that coalition which would result from our opposition to these measures before the House. We are part of the present Government and we do not, having regard to the democratic wishes of the Irish people, and more particularly the democratic instruction of our own political followers, intend to bring to a conclusion the very satisfactory work performed by this Government. We know full well that the traditions of the Labour movement are against repressive legislation of any sort but we feel that the present circumstances, particularly the present culmination of the bloody years of outrages in the North, justify at least a temporary abandonment of that attitude. We are safeguarded against any ill effects of this change of attitude by being in government for the sake of the establishment of peace in our land and peace in our time. That is why we do that.
We want a democratic State for all Ireland where all Republicans, Nationalists and Loyalists could live in peace and work and campaign for the attainment of their political and social aims by the constitutional methods of free men and women, a State where constitutional methods of agitation will be employed, by all sections of the community. If we cannot understand the import of the marching feet of the mass of our womanhood then we cannot understand the march of history. It is manifestly obvious that the country is crying out for peace, for the ending of civil strife in the North and against any spill over of that civil war into the South.
The tremendous unparalleled, strong and spontaneous demonstrations of the womanhood of the principal cities and towns of our country is sufficient proof, if proof were needed, that measures must be taken to uphold law and order in the present critical time. If we are to act in the expectation that these demonstrations will have a positive and immediate reaction on the forces in the country who ignore the democratic facilities at their command and proceed by illegal means to the attainment or attempted attainment of their ends, then I feel sure the Government, recognising this possibility and signifying their endorsement and sanction of the women's peace movement, will for a short time suspend the introduction of the harsher measures which are to come before the House.
On these details, and the details of these measures, the Labour Members in the Seanad reserve the right to seek further information and seek reassurance on the implementation of some of the measures. We intend to arm the Government with the powers that they feel essential for the maintenance of democracy at present, but we urge them that the exercise of these powers should be treated with the greatest caution and that, if it is possible to resolve the present crisis without the full use of them, so much the better. We should rely as long as possible on the practice of the present established legal methods of dealing with actions against the State and revert as quickly as possible to the normal practices of the law.
When references is made by some to Fascist tendencies in the present proposed measures one should bear in mind that those who are more used to the employment of illegal methods of violence are more likely to favour the establishment and try for the establishment of a Fascist state, repugnant though it may be to the majority of the Irish people. One should also bear in mind that these illegal bodies or forces, should they ever accede to political power, would be the first to use instruments more drastic than we would ever contemplate to maintain their grip on the institutions of the State and use them more ruthlessly than would the democratic State to which we have grown accustomed. They would use them to put an end to democracy and establish a dictatorship that would abolish all civil rights for the Irish people and for the Irish working class.
We are all concerned about the powers the Government are seeking here. It is unfortunate that one has to keep on saying that we all abhor violence. Having said that I am more than anxious to ascertain information in connection with a number of aspects of this proposed legislation. I am concerned in particular with detention being extended to seven days without access to a doctor, legal representative or, indeed, a member of one's family. The Minister should indicate clearly and distinctly the purpose of this. The question is rather pertinent if we have regard to the recent decision given in our country's favour by the Commission on Human Rights. It would appear that one of the reasons why this decision was in our favour was because our people were able to prove that there was a considerable amount of torture engaged in. In that connection it is very important if the State finds it necessary to introduce this type of legislation that the Government should be able to explain themselves and answer any criticism that even subversives attempt to put into circulation. We should not be unmindful of the very valuable advice given by Fr. Denis Faul on the radio on last Sunday. I do not think he can be described in any way as a subversive.
I am also anxious to ascertain information about the utilisation of these powers because recently two members of the unemployed organisation were arrested at the point of a gun in Navan under the Offences Against the State Act and held for 48 hours. Am I to take it that there will be a repetition of this and that they in turn will be held for seven days incommunicado? We are entitled to have this information. When these people were arrested they were fingerprinted and so on.
I am also anxious to ascertain what is intended in connection with a trade union pursuing its legitimate entitlement in the matter of a strike. This is a very delicate matter. I regard the majority of the members of the Garda and of the Army as being excellent people and it is because of that that we must take steps to ensure that the people are not turned against them. I want an assurance from the Minister that there will be no reason given at any time for the utilisation of this power to defeat a trade union in the pursuance of its objective. It has happened in the past. A Member of the other House in the pursuance of a strike was apprehended by the Garda because he was found to be trying to ascertain where the goods were going in relation to an employer in dispute. The Garda held the man up and as a consequence were playing into the boss's hands. The effect was that workers felt the Garda were on the employer's side. The Garda must not be put in that position.
I am not trying to make political capital out of this but these things disturb people when they think in terms of this proposed legislation. I am more than anxious that the Minister should state clearly and distinctly who he is aiming at, apart from the Provisional IRA. Am I to take it, for instance, that the UDA or the UFF will receive the same treatment? If this is so and seeing that we had at hand the Criminal Law (Jurisdiction) Act why was the British Government not asked why they did not advert to its provisions when they allowed two members of their Army to cross our Border recently? They were in mufti and, obviously, had sinister intentions to kidnap people. What happened? Those two men got their guns back and were told to go back again and be nice boys. That only encourages subversion and discourages people who are trying to say: "Keep it cool; the way out of a morass of this kind is not to attack with the bomb and. the gun". I must emphasise that. I am not in favour of the bomb and the gun, torture or violence of any kind. We are inclined to lapse into an unfortunate state of forgetfulness, but we must remember that there is more than one type of violence. It is pertinent to ask the Government why have they not done something about other violence. What about the violence being done day after day by the money barons of this country to the unfortunate people? The Government have had ample opportunity to declare a state of emergency in connection with the unemployed situation but they have not done that and the unemployed figures are unprecedented. There is no question of violence about that.
Some people mentioned during the course of this debate about the women on the march. I submit the reason why the women have been on the march is because we have failed in our duty. We have let the people down in the matter of the pursuance of a peaceful reunification of our country and that is at the doorstep of successive Irish Governments and the British Government. We should be contemplating and doing something about these things.
I should like to correct Senator O'Higgins who made a quotation today indicating that the oldest constitutional party here was his party. That is not true; it is historically incorrect. There are a few historians in the Government and they should have him understand that his history is all wrong. Obviously, the oldest constitutional party here is the Irish Labour Party. There is not doubt about that. Senator O'Higgins ought to go back to school about that.
I do not think there is any doubt about that. It was a simple slip of the tongue.
It was so simple that he repeated it. He said it in 1972.
We all accept that the Irish Labour Party is the oldest constitutional party.
He said it in 1972 and, obviously, he has it learned.
Fine Gael only came into being in 1933.
I should like also to speak about the rights of people. Senator O'Higgins talked about the preservation of the State, but I do not think we should get mixed up in the jerseys on this. We have got to make sure of the preservation of the rights of the people. Senator Connolly made a very worth-while speech on what led up to the formation of this State but it was his illustrious father who said: "Ireland without its people means nothing to me". How correct he was and is. What worries me most of all is the taking on of all these trappings of law and the difficulty one can find oneself in trying to obtain explanations for certain people's behaviour. I want to know the reasons why—the case has not been made so far—for the extension of the 48 hours' holding to seven days' incommunicado.
When speaking on the Criminal Law (Jurisdiction) Bill I said that there were certain people whom I recognised in the legal profession who needed to be watched about their behaviour. Some of them would act for anybody and this was found to be so. Some of them are found to be acting for Provos one day and for the Little-johns another day. That does not go in my book in such a serious matter.
It is very important that any public representative who receives a complaint that a person is detained in any part of the country should be in a position to get information as to the wellbeing of that person. I can understand if the seven days' detention is to stop that person from getting at somebody else and to prevent a pursuance of what they are suspected of but I want an assurance that there will be no question of torture attached to this. It has been said repeatedly in different papers that torture is already being indulged in. People have attempted to find out for themselves if this is true in Portlaoise but they were not admitted. If the State has nothing to hide, they should refute these statements candidly and frankly and that is what gives the lie to subversion.
I do not believe that there is any great need for the introduction of this legislation. It would have suited the Government better if they had applied their minds to our major problem, the economic situation. I am disappointed that the Government delayed the publication of the paper on the economy. Senator Connolly spoke about the formation of this Government and the talks that went on. I earnestly entreat him to find out now what is the delay in the promised paper on the economy and why this particular matter should take first place.
I am very sorry that the Government have taken this stand. They seem to have disregarded the importance of tourism to our nation's economy. This legislation will undoubtedly wreck the tourist industry. Can one imagine the headlines that will appear in the American, Continental and English newspapers? The Minister for Finance has done enough damage to the tourist industry in his last budget. This legislation will add to the number unemployed. Then maybe the Labour Party will be able to explain why they allow this to continue. There is no denying that the unemployment figures are growing, and those who are employed directly and indirectly in tourism will lose employment because of this legislation.
Senator Connolly says that this measure will be only for a short while, but I do not know what is meant by "a short while" in so far as the Government are concerned, because the Government have been in power quite some time now and we have been a long time waiting for their economic plan and I hope that "a short while" means only a few months.
Seriously, I would ask them to do something about the tourist industry. May I ask who is going to explain this to the outside world? In the newspapers recently there was a report that our tourist figures had gone down, that the number of tourists from England and America had declined and that the number of tourists coming from the European Continent had gone up. I suggest that they will not go up as a result of this carry-on. That is what I deplore about the whole thing.
This is the most serious debate that most of us, anyway those who did not take part in the 1939 debate, have taken part in because of the very serious situation in the country. There is no doubt about that. As other speakers have said, there is a situation which would justify consideration of declaring a national emergency. There is a fair amount of evidence that some of the more perceptive members of the Government on issues of this kind, and I should like to include the present occupant of the Minister's chair, Deputy Kelly, are beginning to understand that the situation is a very serious one indeed, not only on foot of the case made by the Minister himself in regard to the crimes committed within the State—the killing of the Ambassador, the kidnappings, the bank raids and so on—but also, of course, the rapidly deteriorating and nigh disastrous economic situation: it is quite clear that the State is verging on bankruptcy and that the Government, whatever about the merits or demerits of their record over the past three years and their work during those years, have easily their toughest and hardest year ahead of them in political terms. Most of us, I am sure, know that there is very little hope that they can do anything about the economy.
For that reason the pressures mentioned by Deputy Kelly and Deputy Cooney from the IRA, and the pressures arising from growing unemployment and the growing disenchantment of young people as a result of unemployment and no prospect of employment, and the growing general disenchantment of the people with this idea of parliamentary democracy. It is sad in many ways. There is little doubt that the public bona fide believed that, when the new Government were put in, they would improve on the performance of their predecessors, Fianna Fáil. I did not believe that at the time, and I said so in great detail, but, at the same time, the public could be forgiven for hoping that a new multiparty Government might rescue the economy from the serious condition in which it was at that time. These hopes have not been realised and are not going to be realised. For that reason it appears that a state of emergency within our economy seems to exist; it is simply being given the name of an emergency arising out of the state of war in the North of Ireland.
As Senator Connolly and Senator O'Higgins were talking, I remembered the phrase—I am sure most of you will recall it—"We have taken the gun out of politics." The other day in north Dublin I saw a sign on the walls, "Everett, release the political prisoners." Those days were exactly 25 years ago. We did release the prisoners at that time, but here we are opening the jails and returning the unfortunate youngsters to our jails once again. Because I share to some extent a certain sympathy for these people, I attribute their misguided action to many factors, not least of which is their education and upbringing.
What about some sympathy for their victims?
Of course I have sympathy with their victims but the people who are responsible for creating these misguided young people should examine their consciences as to why these young boys and girls do these terrible things. The most depressing feature of this kind of legislation is the realisation that is borne in on one how successive generations of politicians can decline to or can refuse to learn from the failures of their predecessors, bona fide attempts have been made to deal with the situation as they saw it then. These people can be forgiven for making mistakes but people who go on making the same mistakes, surely that is something that is unforgivable.
The first emergency was declared in September, 1939, nearly 40 years ago. While it is true that it was brought about by the war in Europe it was maintained since 1939 because, I understand, of incipient civil war during all that period. I remember the gunmanship and bombings of the thirties, the forties, the fifties, and to a lesser extent the late sixties, and now of course the seventies. How is it that we cannot learn from this, and that we simply continue to repeat this kind of futile repressive legislation, this meeting of violence with violence? Senator Alexis FitzGerald told us one day that we would show them that we could be as violent as they were. There is an Indian proverb: "If we meet violence with violence, when will violence end?" If ever that saying was fulfilled it is certainly so in the history of our country.
Is there any country in the world the Senator could mention in which violence, like indiscriminate bombing or anything of that kind, would be met by psychiatric treatment rather than by the measures of the law? What would happen in Eastern Germany, for example, if I put a bomb in a pub? Would I be dealt with there with the same sympathy as the Senator is displaying?
Curiously enough, Deputy Kelly, I am not simply advocating sympathy for the bombers. I am advocating that the members of the Government should look back through history and should look back at the activities of both their own party and members of the Opposition party faced with the situation of this kind.
Governments are not a crew of philosophers. They have to do the best they can from day to day in every country in the world. I am asking the Senator can he give any instance of any country in which the sort of approach he is personally advocating would be adopted towards indiscriminate bombers, snipers, kidnappers, knee-cappers and murderers?
I am afraid Senator Kelly is anticipating what I am going to say because I have not advocated a soft approach whatever. I suppose in my generation of politicians I would be one of the very few who, right from the very beginning, 30 years now, have never under any circumstances flirted with violence. This cannot be said for very many in my generation because most appear to have felt that there could be a violent solution to our National problem of unity. Most of them ended up in here or in the other House in the political parties but most——
I am glad to make the acknowledgment to the Senator that he never has had that name or reputation but neither has he ever had the name or reputation of making the country hot for the violent men.
I hope the Cathaoirleach does not mind this debate being carried on in the form of a conversation. I am happy to carry on if Deputy Kelly so wishes, but I am trying to make the point that I do not condone violence and it is unfair for the Parliamentary Secretary to suggest by his various references to knee-capping and so on that I have ever condoned violence in my life. I consider Irish republicanism as a conservative Catholic cult and, generally speaking, to be a complete travesty of true republicanism. I have always advocated a political solution for the Government which encompassed many proposals which I naturally will not go into now but which I believe could have reduced the antipathy of the Northern loyalist to the prospect of joining in a united Ireland.
At any rate, there seems to be no doubt that the present Government have made no progress whatever towards providing the alternative political solution to the question of the North of Ireland. Not only have they not done that but they have done little or nothing—I say nothing—in regard to the new generations of young people going through the conditioning process of our educational system and subject to the historical pressures and realities of the Anglo-Irish situation, in which the British people are not innocent. There is a terrible story there for the average young Irishman growing up. The average young man is faced with the precedent in individuals. We are just seeing the end of a generation who in their time took up arms and who, during the years of their occupancy of these Houses, did glorify the fact that they took up arms and in that way indoctrinated the young people that this was the correct thing to do. They in effect had practised and then preached the fatuous motto: it is a pretty commonly accepted dulce et decorum est pro patria mori attitude of the British. It is pretty widespread here that it is a wonderful thing to die for one's country.
To fight and die for one's country is a common occurrence the world over. One does not need to have a psychopathic urge or need in an individual. It can be, as Bishop Daly said, a noble thing to want to do this, even if one is misguided in what one is doing—to offer one's life for an ideal which you think is an ideal. There is a certain tragic kind of nobility in it. There is a certain element of the psychopath in these people as well. The psycho-dynamics of soldiering is a very complicated one. Surely the Government must see, looking back in our own time since 1939 and looking back before that over seven centuries of oppression, torture, imprisonment, execution, of deportation, every kind of tyranny used on our people throughout the centuries, whether by the British or by our own people and it has not been effective, it has not supplied the answer. Mr. John Costello genuinely believed that "We have taken the gun out of politics". How false is that hope now. Here we are, 25 years later, and I do not think that we have moved an inch forward.
I should like to deal very briefly with Senator Connolly's interjection about the Labour Party because, as a Member of the Labour Party, I am primarily concerned with its activities, since I have no quarrel whatever with Fine Gael. They are being true to their particular principles of government, their attitudes to authority, their attitudes to law and order, and I have absolutely no quarrel with the consistency with which they pursue these. aims and objectives. I disagree with them obviously but, if it is possible to do so, I admire the consistency with which, since the State was formed, they have tended to put law and order and the State above, in the final analysis, the rights of the individual, as Senator Mullen referred to in passing.
I am concerned with the Labour Party, and the Labour Party's role in this repressive legislation, this total denial of fundamental civil liberties in regard to the individual. This is a statement recently issued by the Dublin Regional Council of the Labour Party. It should be said that the Labour Party have consistently denounced the IRA and other subversive organisations which have threatened the security of the State.
The following statement was recently issued by the Dublin Regional Council of the Labour Party:
... and our people by force of arms. Nevertheless, our Labour Deputies and Senators have in the past always vehemently opposed any legislation which, while purporting to protect the security of the State and the safety of the individual, has threatened the constitutional rights of the people.
This unambiguous attitude of the party can best be illustrated by a quotation from a speech by Deputy Frank Cluskey, opposing the Offences Against the State (Amendment) Bill, on 29th November, 1972. Deputy Cluskey spoke for all of us. We all made the same case. He is not the only hypocrite in the Labour Party. Deputies Corish, O'Leary, O'Brien, Keating and so on, all said the same thing. He said:
We are totally opposed to both sections of the IRA and totally opposed to any organisation that wishes to impose its will on the Irish people out of the barrel of a gun or by a bomb. We are opposed to this Bill for a variety of reasons. This Bill attempts to deprive Irish men and Irish women of their basic human right, the right in any democracy to a proper and correct interpretation and implementation of the law.
That sums up the Labour Party attitude in 1972, when Deputy O'Malley was trying to introduce his amendment to the Offences Against the State Act at that time. I have been opposing the Offences Against the State Act—I am not simply against the Government—as far back as I can remember. In company with former Deputy McQuillan who put down motions in the Dáil calling for the removal of the state of emergency. So I have to plead to being consistent in my present stand on this Bill.
The regional council then went on to send to the Parliamentary Labour Party the following emergency resolution: "That this Council is opposed to the Emergency Powers Bill and the Criminal Law Bill now before the Dáil and calls on all Labour TDs and Senators to oppose these Bills in the Dáil and Seanad. This Council recognise that such repressive legislation introduced on the pretext of fighting terrorism will be used ..."—and they use this word "will" deliberately—" ... against trade unionists and other activists within the Labour movement". That is important. That is the Dublin organisation of the Labour Party representing about 140 branches.
The Minister for Justice's speech was an extraordinarily tortuous one. Sometimes I felt I could make the speech myself. The contents of it contained many points with which I was in agreement with him. There seemed to be a position of non sequiter because he made a number of points and then came to a completely perverse conclusion, in particular, in relation to “... his perfectly valid defence of the reality of the state of peace within the State at the present time...”, making it very difficult to understand the rationale for this Emergency Declaration legislation. He said:
The Government have repeatedly stressed that the violence in Northern Ireland is overwhelmingly indigenous to the area. The evidence for this is clear to all who wish to see it, for example, in the places of origin of those convicted for relevant offences in the Northern courts. We have said that the number of violent incidents involving persons crossing into the North from this side of the Border has been very small in relation to the scale of violence generally in the North. Again, the record continues to bear out the truth of this.
I agree with that.
We have pointed out that in the context of the overall scale of violence, the problem posed in the past by fugitive offenders or alleged offenders was, in numerical terms, of marginal significance.
He is supported in that by the fact that the only offenders crossing the Border who have been apprehended in recent times have been, on one occasion, three SAS men and two or three other officers of the British Army coming in from the North, not from the South. Incidentally, it would be interesting to know what happened to these people, why they were not charged.
Surely, they, too, are only kids too, Senator. They are entitled to the same compassion as he was willing to extend to the people who fly the tricolour and set out to bomb and murder. They are only human beings, flesh and blood, even though they do belong to the SAS or to the army. No doubt social forces forced them into the British Army and the SAS. The very same compassion the Senator was extending to the IRA must go to them as well, surely?
You must have been reading your Marx recently.
The Parliamentary Secretary should refrain from interrupting the Senator.
It is predominantly social pressures which force men into the army in time of peace and I am deeply sorry for them.
The Senator is red in tooth and claw against the British soldiers, but blames us for opening the jails to stuff the boys and girls of the IRA behind bars.
I have asked the Parliamentary Secretary to resist the temptation to interrupt the Senator.
I should like to say in reply to the Parliamentary Secretary that it is not my job to worry about the genesis of the kind of mentality that brings a young English boy into the British Army, although I share the Parliamentary Secretary's belief that they are predominantly social pressures. I am concerned for the reason that young Irish boys, brought up in good Catholic homes and educated in good Catholic schools by nuns, brothers and priests, should think it a good thing to go into the North of Ireland and blow their fellow Irishmen to smithereens in the cause of a united Ireland. That is the important question.
Going back to the Minister's reflection on the relative peace of the South and the origin of the violence being predominantly in the North makes it very difficult to understand why he has then decided that in this sort of predominantly peaceful milieu, with the exception of these other incidents to which he referred, we should effectively suspend the Constitution and all these very important fundamental civil rights of our people. What is the origin for it? If one takes even the blowing up of Ewart-Biggs and the Herrema kidnapping and so on, it has to be taken in the context of a development in recent years of the urban guerrilla-type of activity in many societies. A democracy has to decide whether in defence of democracy it shall destroy its own democracy. This is what is facing us at present. When we delimit the fundamental rights of individual citizens in our society for the preservation of the State—the word used by Senator O'Higgins so much and criticised by Senator Mullins for so doing, and I share Senator Mullins's attitude that the State is nothing to me, the State is only the people, and how the people are treated is important—this question of the preservation of the State in the context of the urban guerrilla activities is something which the Government are going to have to face.
The urban guerrilla manifestation will not go away. It is a manifestation of our times. A number of the western European countries have faced the fact that there is this kind of "war of the flea". I do not know if Senators know the general idea: one attacks, hurts, moves out and disappears rather like the Mao Tse Tung fish in the sea. You cannot be taken easily as long as you are living in friendly surroundings. This kind of thing will go on and has gone on. If one looks back through the relatively recent period, say 15 years, one will find that, to a certain extent the Republic of France had to stand for this kind of thing, a certain amount of rioting, and a certain amount of this kind of assassination and bombing. West Germany had the Bader-Meinhof group and their activities. There has been a certain amount of it in Belgium. There is quite a lot of it in the Tupamaros in South America in the Argentine.
One has to decide whether one is going to use the ordinary laws of the State or emergency laws brought in to deal with this kind of thing, like the Special Courts in our own case, or whether one is simply going to suspend all the rights of all the citizens in the State in order to try to put down this kind of activity. That is one way. The other way, of course, is to deal with the social evils which create the Bader-Meinhof groups, the young men going into the British Army, and the young boys crossing the Border into the North of Ireland with nothing better to do than to blow up their fellow Irishmen —the social evils of unemployment, slums and bad social conditions. This is a very basic decision facing many of the western democracies. Is the whole game of parliamentary democracies over? Is it obsolete? Is it finished? Quite a number of people believe it is, that it has long outlasted its usefulness and that it no longer is truly representative democracy. The conservative parties in most of these western democracies are unable to cope with their social and economic problems and they are using the activities of urban guerrillas to justify the setting aside of effective democracy.
This Bill of the Minister's is a particularly good example of a very clearly calculated decision by the Government to set aside democracy, not so much in anticipation of doing something about the IRA and the Provos because they have seen from Brian Faulkner's pathetic admission the other day—a man who does not admit easily to making mistakes— that he had been mistaken in his peremptory introduction of internment, and presumably his permission for the use of torture, that none of these things succeeded. In fact these things, it is now generally believed, led to the terrifying situation for the people of the North of Ireland. It was repression that bred further repression, further violence, and the violence seeded the continuing violence of the sectarian murders on both sides.
This obviously had its origins in history and in the hatred of two religions, the two Christian sects who hated one another and were prepared to murder one another because of their hate of one another in what has, in a bizarre paradox, come to be understood as the Christian spirit, when one looks at the excesses in the Lebanon and the PLO and their activities there. This Government must know that they are most unlikely to solve the question of the North by this kind of law, this kind of legislation. The only justification there can be for it must be the likelihood that they are facing very tough times as Deputy Kelly, the Parliamentary Secretary, has told us on a number of occasions and the Taoiseach and, indeed, the Minister for Justice in his speech in the church in Dawson Street about subversives and Marxists and the damage that they were doing to the State and the likelihood that they would begin to undermine the State.
We are gradually moving towards getting a very wide interpretation of the word "subversives". It is not the Provos any more to the same extent. Those who do not see eye to eye with us, as the Taoiseach said recently, those who do not agree with our way of life, or something of that nature—I do not think I am misquoting him— can very quickly and easily become the enemies of the State under this kind of law. That could sound far-fetched if one did not have so many precedents. We all know about the Government of India and Mrs. Gandhi. Most of her political opponents are now in jail. Parliament is now being asked to bring in new laws to ban a wide range of anti-national activities. This is taken from today's Irish Independent.
Better off to be in jail than to be found in a ditch like the opponents of the regime in Cambodia not so many miles further to the East. If we are dealing with the Far East let us deal with the whole of the Far East.
Cambodia did not work out anything like the scaremongering American propagandists made it out to look like, and South Vietnam the same. It is a much healthier country now than it was under——
At least we know what is going on in India and reporters can travel there freely.
Senator Browne.
One of the things that legislation can do is to allow the President of India to extend the life of the Parliament from five to six years if Mrs. Gandhi feels she has not had long enough in Government. She is going to take another year and she is going to remove any powers of the courts to question any constitutional amendments—that is what we are doing—and she is not having what she is pleased to call anti-national activity in the draft Bill. This includes creating public disturbance or disrupting public services which, of course, the Opposition believe may apply to strikes. Of course it will apply to strikes. By a coincidence, the right wing conservative, Peter Gordon, in the New Zealand Government is bringing in legislation limiting the right of trade unions to make political protests. He says "It is not right for the trade unions to usurp the power of the Government". They simply protested against the visit to New Zealand of an atomic submarine from the United States. That will not be allowed.
However, I am only concerned with the picture one gets of these people professing themselves democrats who patch up their version of parliamentary democracy and, when they find that the version they believe in is not working, simply change the rules and anybody who disagrees with them becomes a subversive, who is interfering with principle embodied in the phrase: "any law for the purpose of securing the public safety and the preservation of the State ...". That is a really wide sweeping statement that could envisage any kind of further subsequent proposal. The only one put to us, the only one we know about, is the seven-day proposal. It is a terrifying prospect for people to be deprived of their right to habeas corpus, the right to be brought before the courts and be charged. The 48 hours provision is hard enough, but for this to be extended to a total of seven days on the words of an officer of the Garda is something which, quite clearly, could lead to abuse.
I want to make it clear that I think that, as in most professions, most trades and most occupations, the vast majority of the men in the Garda Síochána are honourable, good and conscientious men doing their job as best they can under terribly difficult conditions. I should like to pay tribute to them for the fearful job they must have, being faced with the likelihood of being confronted by armed men when they are trying to make arrests, and so on, as an unarmed police force. At the same time, we know there have been abuses within the force in recent years when young men have been taken in and treated violently in order to try to elicit a confession. Sometimes, presumably, they have the right man. I do not think violence should ever be used on people, guilty or innocent, but, used on the wrong person, it becomes an even more heinous crime. This can happen. If the Garda are in pursuit of somebody after the murder of one of their own colleagues, quite obviously they will be determined to try and get the person who did it if they can, and get a conviction if they can.
In the context of that kind of situation, retention for seven days could lead to abuses to which it is wrong to subject the Garda. In 1969 I was in the North of Ireland in Gerry Fitt's house when they were ringing up the British command to get British troops to try to protect the Catholic people at that time who were in enclaves under assault and attack. It is difficult to believe that could have been the position in 1969. The British Army were welcomed into the North as the protector of the Catholic population. Since then, of course, there has been a change in which the Catholic population have become totally alienated from the British Army, and understandably, because of the search, arrest and manhandling of youngsters, women and children, and the whole terrifying paraphernalia of the right of armies to search.
No word about stone throwing and the weeks of petrol bombing and the declared intention of the IRA to set the Army and the Catholics at each other's throats. No word of that.
I cannot make a speech for the Parliamentary Secretary. I have to make my own.
The shining innocence of this selective truth dispenser.
This is the kind of hysteria which seems to prevail in the Government and the Parliamentary Secretary is not able to listen to the opponent point of view.
I am sorry for my lack of self-control and I am sorry to interrupt the Senator. I know he is an older and tougher campaigner than I am and he is well able to take care of himself.
The Parliamentary Secretary need not apologise to me at all because he is only exposing his own weakness as a person, and as a person in a position of considerable responsibility. That is probably the most frightening thing about this legislation. There are many people in the Parliamentary Secretary's party in this tremendous position of considerable authority in which they are at present who are in a position to do these terrible things to our people— to suspend their civil rights on the case which was presented here and which certainly does not justify the decisions taken.
The people want an end to savagery and they will pay a high price to have that and they will have it in despite of anybody who believes that certain persons are not getting the treatment which if they were well-behaved, they would not get.
I slightly suspect the Parliamentary Secretary——
They will pay a very high price for an end to savagery and this Government will provide that if they possibly can.
——mourns for the good old days of Cumann na nGaedheal when they could have the floggers Bill in here and really deal with them.
The Senator sat quite happily for three years in a Government which had people who were much nearer——
How he would like to vote for it and then watch it being carried out. That would not surprise me either.
The Senator sat quite happily with General Seán Mac Eoin and Paddy McGilligan and others around the same Government table. Thirty years later he vents his spleen on Cumann na nGaedheal.
The Parliamentary Secretary must know what happened to that Government and who brought it down.
I do.
I could not do more than that, could I?
There were innocents abroad.
The danger of this kind of precedent is unlimited. Senator O'Higgins kept referring to this magic phrase: "we must stop pussyfooting. It is high time to tell the people we are living in a national emergency and stop pussyfooting". He suggested that there are bound to be calls from the civil liberties people and fundamental human rights people and it is just too bad that they should bother to protest because of the removal of civil liberties. It is in the tradition of Cumann na nGaedheal, the Blueshirts, the Fine Gael Party, to want to see an end to this right of debate here in Leinster House, the right of discussion, the right to differ, the right to put another point of view, a right which I have enjoyed over the years and I have expressed my appreciation of it many times. The time is coming, as Senator O'Higgins said, when it will be necessary for them to deal with people, like for instance, the Irish Council for Civil Liberties, who are not attempting to establish a new council for civil liberties. We read that the objectives and aims of the Irish Council for Civil Liberties shall be to assist in the promotion and protection of human rights and civil liberties including freedom of speech, association and assembly, and the rights of individuals and groups to equal treatment under just laws. The council shall seek to recover and enlarge such rights and liberties and shall take such steps as the council deems necessary to that end. Senator Robinson is one of the leading proponents of this council and I am sure it will benefit from her guidance in defending civil liberties against the monstrous proposals included in this legislation in regard to civil liberties.
What will our position be when we have the State deciding it is threatened, and it is the State who can make all the decisions from now on? The single most serious development is the effective setting aside of the courts. This is an astonishing development. It is remarkable to see a prominent lawyer such as Senator O'Higgins and, indeed, the Parliamentary Secretary, looking with equanimity on this proposal to set aside the courts in all their wisdom. We have seen today, of course, the Law Society expressing their great concern about the provisions of this Bill. They cannot be called a bunch of "pinkos" or reds, or whatever the jargon is for people who have rather more radical ideas than those frequently put forward by the Parliamentary Secretary and his ilk.
In the attempt by the Government to defend the rights of the State, like Mrs. Gandhi and Mr. Gordon, are we to expect a heavy censorship of the Press? A number of us lived through the first emergency in 1939 and recall the time when it was not permissible to have a name put in the papers if you died outside the country. Everything was censored. Lumps were cut out of letters and this was all in defence of the State.
Was there any neutral country which did not adopt such measures? Perhaps the Senator would name one country during the last world war in which similar measures were not adopted.
Let me finish the sentence. There was a serious need in that event. That is what I wanted to say. Thank you for allowing me to say it.
Every country that ever was adopted such measures in war time.
A serious need in that event. I accept it. Now we are faced with another emergency. Are we now facing censorship? What kind of censorship? Even heavier censorship than that imposed in the Press as things are? Censorship on television, even heavier censorship than that already imposed on our television services? Censorship on our radio, even heavier censorship than there exists at present? Censorship of any kind of serious radical thinking or talking? Is this the next step we are to expect? There can be no appeal to any court now. This is the nub of the point made by Senator Lenihan that, while you could say that the extension to seven days is a terrifying prospect, it is a relatively minor proposal for the enormity of the suggestion that we should effectively suspend the Constitution. It is difficult to believe that you could declare an emergency simply to extend the right to hold a person from two to five days. It simply does not make sense.
This is a very serious proposal. The important point is that hereafter none of us will have the right of appeal to the courts. First of all the High Court and Supreme Court are being set aside. This in a democracy in time of peace, and I do not think a case has been made to suggest we are at war. This again is an upside down interpretation of the feeling of the people. Think of the crowds in the streets in the past few weeks in Dublin, Belfast, Galway, Sligo, Cork, campaigning for peace and the Minister is declaring a state of war. The withdrawal of the right of appeal to the courts is a fearful development. This preoccupation or obsession about the sacrosanct entity, the State, is shown particularly in Senator O'Higgins's speech and, to a lesser extent, in the Minister's speech. Senator Mullen said Connolly had little concern for the State because, without its people it meant nothing to him.
What is going to happen to the State? What is going to happen to the people within this State if this is an over-reaction and if this Government have made the same mistake Brian Faulkner made which led the North of Ireland to the practically complete breakdown in which it operates at present, with the total alienation of the population from both the police and Army? This is what the perceptive members of the Army and Garda are wondering about at present and the relationship with the Garda in particular. We have never had much dealings with the Army. I have had differing relationships with the Garda over the years but my broad experience has been, as I said earlier, that the broad mass of the Garda are honourable decent men doing a difficult job as well as they can. The relationship between the people and the Garda is a good and friendly one on the whole. It is a relationship of mutual respect. Is the Minister not jeopardising this relationship at present by this legislation?
I plead a special interest in the point to which I have referred a number of times in both Houses, that is, my right to come in and say things which annoyed people like the Parliamentary Secretary and many more like him all through the years. He mentioned General Seán Mac Eoin, to whom I was as ideologically opposed as it was possible for any one human being to be opposed, but whom, I like to believe, I had the privilege of calling a friend. He had this capacity—and I hope I have it—to differ fundamentally in political terms but, at the same time, not in any way to infringe on the very pleasant relationship which we had. Through the years this has gone on, and it has been possible for any Deputy or Senator to get up in our Houses of the Oireachtas and make speeches with which we annoy one another. There is that freedom of speech.
To some extent this seems to me to be another of the dangers we could be facing here. The Government are clearly in a state of as near to panic as makes no difference, or alternatively, they have information which they have not given to us that we are on the edge of civil war. They should give us that information, or give a hint, or hold a secret meeting of Parliament, or whatever they decide on and tell us if that is so. Failing that being the position, the general feeling is that this is gross over-reacting. This is the kind of a Government we are dealing with, a Government no longer in control of events.
Let us examine the kind of a Government we are dealing with. We are not dealing with a very clever Government. We are not dealing with a very successful Government. We are not dealing with a very enterprising Government. We are dealing with a Government which has failed in relation to economic problems, health problems, social welfare, housing, agriculture. There is practically continual strife of one kind or another— unemployment and sky-rising cost of living. This is not a Government whom you can trust. This is not a Government of whom you can say, that, because they have been so clever on these desperately difficult questions, you can rely on their judgment in this situation. Is that not true? That is a statement which privately even the members of the Government Parties—I do not expect them to make it——
I categorically deny that.
I expected you to. Anyway, this is not that kind of a Government of whom you can say that because we know they are so clever, so ingenious, so resourceful, so enterprising, we can give them all these powers. The general impression is that we are dealing with a Government which is badly rattled, that they are frightened probably by the things that the Minister read out to us at the time—and they are frightening, it is a frightening recitation—but there are other countries which have faced this kind of urban guerrilla warfare activity and have decided to hold on to their Constitution, hold on to their civil rights and their civil liberties, and deal with these activities otherwise and have suppressed them in many cases. This is not that kind of Government. There must be within their concern, within their fear of the future, an overlay of political fear arising out of their dilemma, of how they are going to face the electorate in the next 18 months. Even if you do not say that, that is the main reason for this. There must be an element of this within their rationalisation, within their arguments.
I am not going to bore the Seanad with repeating all the different Labour Members' fighting speeches in Opposition at the legislative "atrocities" perpetrated by Deputy O'Malley, the then Minister for Justice, against human liberties in this country or indeed the speeches of the man that we all very much respected in Opposition, the present Minister for Justice, Deputy Cooney, who spoke on many occasions in defence of civil liberties and human rights. This is a Government who for one reason or another, whatever their basic beliefs—and let us assume that they meant what they said in 1972— have undergone a complete volte face. They have turned tail and are running like scalded cats in front of the situation which is now facing them.
Senator Browne, may I interrupt? Is it the intention of the House to adjourn for tea?
Yes. It is proposed to adjourn until 7 p.m.
Business suspended at 6 p.m. and resumed at 7 p.m.
We were talking about the real dangers here in the displacement of the courts, the arbiter in the matter of the constitutionality of any piece of legislation being passed by the Houses of the Oireachtas. The dangers that we now see are in fact that a Government which on the record, particularly in relation to their Labour component, have in the past made some very cogent and very well reasoned arguments against any interference with our civil liberties, human rights and legal rights before the courts, have now, for one reason or another, brought this Bill before the Houses of the Oireachtas to set aside this power of the court. While it is true, as Senator O'Higgins said, that the Constitution has not been suspended, it is a pity indeed that some parts of the Constitution concerned with family law have not been suspended. The irony of this whole debate is that, instead of debating a new Constitution or considering a new Constitution, we are proposing effectively getting rid of the old one rather than going ahead, as many of us had hoped with this kind of a Government, with proposals for an enlightened attitude in our new Constitution. However, as a frequent critic of the Constitution, I find myself in the position practically all my political life of attempting to defend the remains of this Constitution. I now regret to see that it could be passing. The power of the right to appeal to the courts now is being clearly seen to be an absolutely inviolable right. Once that goes the rest of the Constitution hardly matters, because all the Government need in that situation is a majority in Parliament and thereafter they can go through the articles of the Constitution and strip one after the other until we simply are left with virtually no Constitution at all.
I know I am sounding like a scaremonger in talking like this, but I have to ask the House to think about not simply the speech made by the Minister today based on the facts as he presented them—and they are frightening enough—but the speeches made in recent weeks and months by authoritative people like the Taoiseach and various supporting members of his Government and Members of the Parliamentary Party about the very grave position of the country as a whole, leaving aside this question of incipient civil war or civil war which does not seem to flare into life down here or has not done so up to the present. This Government with their liberal protestations—and there are fairly fulsome liberal protestations on the record for anybody to read—are now coming in with this frightening legislation in which the only thing that matters really is the setting aside of the right of appeal to the court.
Obviously, the seven days is a very retrograde and regrettable step, but the point that worries me most is the setting aside of the power of the court in the social and economic position of the State and considering these other grave North of Ireland problems with the private armies of the Provisional IRA and the various loyalist paramilitary groups. Is this what is proposed? Unfortunately I am afraid no assurance that we might get is going to be of any great help because we have very little reason to put very much trust in the undertakings given to us by any of the members of this Government, and this is not wild talk. This can be proved, except I do not want to weary the House by going through the various extracts of every single Member of the Labour Party certainly and many Members of the Fine Gael Party who spoke out loudly and with great conviction, it seemed at that time, against this kind of legislation. In those circumstances then and faced with this preoccupation with the sacrosanctity of this entity, the State, referred to by Senator O'Higgins, we have the phrase in Article 28.3.3:
Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and preservation of the State in time of war or armed rebellion or to nullify any act done ...
We now have protestations by the Minister and by his supporting Senators in the House that the state of war exists in a neighbouring country, that this is a state of emergency, the public safety is threatened, the preservation of the State is under threat, and therefore this decision which they have taken to introduce this motion declaring a state of emergency becomes justified by what they consider to be a threat against the State. That being so, being in the state of mind in which they appear to be, which I suggest is, putting it at its mildest, an over-reaction on their part, where will the Government stop? What undertaking can they give which is worth listening to that they will not go through the various Articles of the Constitution—and obviously it has some very worth-while Articles in it— and quietly dismantle the Constitution as we now know it?
I daresay I may be accused of scaremongering, but if one looks around the world and looks around particularly at the parliamentary democracies, each one of them doing its best to try to implement this admittedly extremely complicated system of representative democracy, it is difficult to believe that some of these can stand up and defend the kind of parliament they have and the kind of constitution they have and say that this is representative democracy. Some, obviously, come to mind: Ian Smith in Rhodesia; Voster in South Africa. We see enormous black populations unrepresented, yet they feel that they have parliaments and that they are operating representative democracy. There are other countries in the Middle East.
We have to face this position of trying to operate a democracy in the difficult situation where the economy clearly is out of control. Think of the travesty of parliamentary democracy as one has in South Africa or in Rhodesia and also the other two places I mentioned—Mrs. Gandhi in India, who has most of her opponents in jail and is now bringing in new laws to outlaw the trade unions or suppress the trade unions, and Gordon in New Zealand who is doing much the same thing. New Zealand in particular could be considered to be a fairly advanced parliamentary democracy. I know that we really feel that we are the chosen people and we are not as a race like the rest of men, but I submit to the House that we are not as unlike as we would like to think we are. Many of the things that are being done in other countries under the misnomer, as it must be called, of parliamentary democracy it is possible for us to start doing here, because life is about to become very different for the present Government and life is going to be even more threatening for the Government.
This Government feel they have a Messianic mission to lead us to ultimate peace and harmony. They feel that the place would not be the same without them, that we would not survive, that, bad as things may be, they would be worse without them. Who is going to listen and believe Senator Connolly reading out his extraordinary litany of alleged achievement with the highest level of unemployment we have ever known, with the cost of living completely out of control, with no money being spent on health, education, housing, caring of the aged and yet——
No money?
So Senator FitzGerald is now to replace Deputy Kelly in keeping me in line. I would say no money. I do not mind saying that. I repeat that effectively in my terms no money has been spent on education, on housing, on the old people.
It is a question of what is the multiplier.
How one should spend money.
In real terms a multiplier.
One of the clearest things is that the Labour component of this Coalition has had absolutely no influence whatever in policy matters. I would like to think that because, if they have had such influence and this end result is the kind of influence they have had, it would make nonsense of the declared socialist policies of the Labour Party. Having lost on the education front, the health front, the old people front, the unemployment front, the cost of living front we have now lost on the only one that did not cost anything at all —the civil rights front, the human liberties front, our people's constitutional rights. We have not even won that one victory in the Coalition cabinet.
I do not think there is any doubt about the total defeat of facing the Labour leadership within the Cabinet. I am sorry Senator Connolly was not here when I was reading out the comments which the Dublin Regional Council of the Labour Party made on this proposed legislation, which they roundly condemned and asked for the support of Labour Deputies and Senators in opposing it. This is the danger that we now face. It is not impossible that this Government are in a state of such panic that they might decide that these other Articles of the Constitution were to become troublesome, tiresome, interfering impediments with the smooth working of this State. They could be considered to be not in the interest of public safety and to be impediments to the preservation of the State. The Government could get through the various Articles. For instance, Article 13 which decides when the Dáil will be summoned and dissolved. Like Mrs. Gandhi, Liam Cosgrave might have the Dáil extended for another two or three years or even ten years. It would make it possible for him to go to the country when he is ready, slightly less frightened than they are at the present time. They may decide to take away the powers of the President under Article 13 to convene a meeting of either or both Houses of the Oireachtas without consulting the Taoiseach. They have already decided of course, to take away the power of the right of individuals to be tried before the court.
Under Article 26.2.1, the Supreme Court, consisting of not less than five judges, shall consider every question referred to it by the President for a decision and if it pronounces against a particular Bill passed by these Houses the President shall decline to sign such a Bill—a magnificent provision; a magnificent safeguard. The Government could decide that whatever Bill they may pass in this House, repugnant to the Constitution though it may be, they do not want it to be subject to that Article 26 of the Constitution. If they set that Article 26 aside, the Houses of the Oireachtas are deprived of that power. Article 27 of the Constitution, referring Bills to the people, is a very important power indeed. Subsection (1) states:
A majority of the Members of Seanad Éireann and not less than one third Members of Dáil Éireann may by a joint petition addressed to the President by them under this Article request the President to decline to sign and promulgate as a law any Bill to which this Article applies on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained.
They might decide to set that Article aside and we would then be deprived of yet another safeguard against the authority of the all powerful State.
There is Article 27.5.1º under which the President may decide to decline to sign a Bill or to promulgate a Bill until the proposal has been subject to referendum and the people have accepted by referendum the Bill or rejected it. The people have that right. That is the big difference referred to by Senator Mullen in his comment on Senator O'Higgins's obsessional preoccupation with this word, the State— the State as opposed to the people, as if the State was itself an important entity. Those of us who are socialists are concerned with the people as against the State. These protections within the Constitution are designed to protect the people against the autocracy of an individual Minister or a dictatorial oligarchy in any particular Government.
Before the recess I was dealing with the very important Article 15 and with the question of my particular position here over the years, in which I have stood up in this House and in the other House and frequently irritated, annoyed and exasperated—to use a mild word if one recalls Deputy Kelly's crisp responses recently—by putting forward what in the Republic is a heterodox view, a view that many here do not hold—the radical socialist view, the revolutionary socialist, the republican view. I would say the republican view, but a completely different kind of republicanism, the republicanism of the Republican Congress, to what is commonly known as Irish republicanism. This kind of view has irritated people in the past and they have got very angry with me at different times. But, in fairness to all Members of the Houses of the Oireachtas, I have been permitted to carry on making these kind of speeches. It has not been decided at any time that it is not "in the interests of the State" or in any way jeopardising "the safety of the State" if a person is allowed to question the wisdom of a Government taking a particular decision at a particular time.
For instance, it is conceivable that the Dublin Regional Council of the Labour Party's statement, which opposed this Bill for a variety of reasons, could be decided to be "giving succour and comfort" to the IRA or to the Provos at a certain stage in this Government's present behaviour pattern. If one takes what they are now doing, the extravagant response, the over-reaction to the present situation as it is at the present time, and the decision to suspend the courts' right to rule on questions put to them, this is the kind of document which could become a subversive document. Subversion, as I said earlier, is getting a very much wider and a very much more dangerous connotation. I would say that I myself am now moving into the subversive camps because I hold these revolutionary socialist views.
For that reason, it is conceivable that I can come under these kind of laws that are being proposed here, as soon as the economic bubble bursts here finally. When it is finally accepted that monopoly capitalism is not going to work, is not going to create a just society, and that the only way it can be done is through socialism, we are going to get the kind of response Deputy Kelly talks about, and to which the Taoiseach has referred: the final revulsion of the ordinary people against the kind of life they are being forced to adopt, more and more as these assaults on their living standards continue, and must continue and intensify in the months ahead. They will not continue to tolerate such conditions. This is the pattern of evolving socialism through the world. You are faced with either a dictatorship—and this kind of legislation looks very like as if we are in the middle of making that choice now: this delimitation of the citizen's rights, their civil rights, the rights of the individual before the law, and the gradual erosion of our constitutional safeguards and guarantees.
This has always been the dilemma facing those of us who are socialists. This is always a threat to us during the period of decline in the so-called democracies operated in these kinds of societies. When it is finally under threat, the so-called democracies will change the rules to suit themselves for as long as they are permitted to do so. Deputy McQuillan and I found that in the other House on many occasions: whenever things got too difficult they simply changed the rules and made it impossible for us to operate. That in itself was not very serious as there were only the two of us. They continue to tolerate parliamentary democracy, allowing it to operate nominally, with parliamentary elections and so on. Then, if things go wrong, they still will not behave themselves. They simply amend the Constitution or in one or other ways restrict the constitutional guarantees, rights before the courts, civil rights, individual rights. This is what they did in Chile—just shoot them, imprison them, torture them—and not just Salvador Allende but all his supporters as well. That is not an unusual picture. It is becoming a reasonably conventional picture now in these kinds of democracies.
I see this legislation as a possible beginning of this kind of thing. We are not unlike the rest of men. We have all the conventional human foibles. Go back through just 50 years of history. I mentioned General Seán Mac Eoin a friend of mine. He was disagreeing with me because of the force with which I expressed my radical views. I recall saying to him: "Of all the things that we in our generation ever do or say, we can never do anything so terrible to our contemporaries as your generation did to one another in your cruel and pitiless civil war".
For instance, take this Council for Civil Liberties. What rights are they going to have? Why should they have any rights? If it is decided by the State that these people are "getting in the way", that they are protesting, as Senator O'Higgins said, we will come up against these people who will be standing up for civil rights and civil liberties. Whatever his shortcomings politically, he is an honest man and always has been in my experience. He has always said what he thinks and what he believes, but that is what is facing the Irish Council for Civil Liberties. They say they intend "to investigate and give advice with regard to the rights of individuals and groups"; "to institute legal proceedings to vindicate individual and group rights"; "to bring test cases and provide assistance to persons before the courts and tribunals"; "to establish an all-party Oireachtas book, to publish pamphlets and statements about the law and people's rights and conduct research into areas of civil rights and submit evidence to Government and law reforms". What a chance they have? Does anybody seriously think they are going to be allowed to go on doing this kind of thing? Organise campaigns for the reform of the law. Will they not be in breach of the law? Will they not be a threat to the State? Will they not be considered a threat to the State? The Irish Regional Council of the Labour Party, the Irish Council for Civil Liberties—their days are numbered if this Government continue with their present attitude in relation to individual rights. The Government can now do just as they please. I come back to the point about freedom of speech and expression, which interests myself as a Senator. In relation to Members of each House of the Oireachtas Article 15.12 states:
All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.
May I continue to say what I like from now on in safety in this House, if the Government choose to dislike what I or any one of us have said and feel it is a threat to the State, an assault on their integrity or their existence, undermining their existence? What about Article 15.12? What is to stop them getting rid of Article 15.12 or 15.13, which states:
The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.
That is a fine and magnificent provision in the Constitution. Senators, there is nothing to stop that disappearing within the next week if the Government carry on with their present autocratic attitude and their state of total panic and disarray in the face of not only the real problems, which the Minister mentioned in his opening speech, but in the face of the real dangers to their existence which are bound up in the rapidly deteriorating and disastrous social economic bankruptcy which, as far as anybody can see, is now facing the State?
There are other excellent provisions in the Constitution which a fearful Government, a Government frightened of the public, frightened of the electorate, frightened of their disastrous failure over their three years in office, vested with the enormous powers they are now asking for from this House, a precedent set by this House, can remove and destroy. There is nothing to stop them. There are precedents in the world of parliamentary democracies. We would not be the first one. All they have to do is make the case that it is for the public safety and the preservation of the State in time of war or armed rebellion. Every dictator in history has protested his sole ambition in his political life to protect the public safety and to preserve the State.
This Government are in that sordid, and for Labour members of the Government, unforgivable tradition of all the petty dictators in history. It is not quite the same for Labour as it is for the Fine Gael and Fianna Fáil people. Both Fianna Fáil and Fine Gael in their time had taken these steps. That is their business. I have opposed them both in Fianna Fáil and in Fine Gael, but for the Labour Party it is different. It has been the tradition of Labour Parties, and it certainly was the tradition of its great illustrious founder, James Connolly, the tradition of the liberal socialistic outlook. Nothing mattered more than the personal liberty, the right of the individual before the law and it is a very sad and tragic occasion for me to listen to a Senator with the name of Connolly trying to rationalise his betrayal of his great father's brave and gallant sacrifice of his life in his attempts to build socialism in Ireland through an independent Irish Labour Party.
To listen to some of the contributions today one would be tempted to forget for a brief moment that we still operate a democratic system here, the basis of which is one man and one vote. As long as the humblest to the highest in the land have the right to record their favours at general elections some of the dire premonitions we have been listening to for the past couple of hours are most unlikely to come to pass. There are Members in this House, such as myself, who on a previous occasion occupied the other House and, in their wisdom, the people decided to reject them. That is the right of the people and I hope and believe they will always retain that right. When we talk of changes in the Constitution and make forecasts of a horrific nature it is just as well to remind ourselves that all citizens of 18 years of age and over, if they do not like their legislators, individually or collectively in the political parties, if they do not like their policies, if they think they are tinkering around with their constitutional rights, have the right to put them out. If the people think that some other group or some other combination of parties can do better, a more democratic or more liberal, a more socialist or a more Marxist job, if they feel that way, they have the right to put that combination in.
It is important to remember that because some of the dirge we listened to this evening would lead one to believe that the right of the voter, the electorate, has somehow suddenly passed from our land.
Try and put Mrs. Ghandi out.
Dr. Browne was one of those rejected by the electorate so we have something in common. On my way here I had the pleasure of listening to the melodious voice of Senator Brian Lenihan being interviewed on what the Fianna Fáil attitude would be to this motion before the House. I listened with considerable interest. I always listen carefully to what Senator Lenihan, Leader of the Opposition in this House, has to say because I get the impression, rightly or wrongly, that his views, when he leads for the Opposition party, represent largely what that party's feeling is. I was very interested to hear what he had to say. Most people knew that the Opposition were going to oppose the motion and were going to oppose the Bill which would follow from that motion but they were going to give their support, with some amendments, to the second Bill which will be discussed in the other House before it comes here.
I listened carefully to Senator Lenihan this afternoon and heard an almost verbatim report of the speech he had made earlier in the day. I got the impression—and it has not been dissipated so far in any of the contributions I have heard, that the nebulous hotchpotch amendment which was presented to the House was a tactic to secure a consensus within the membership of the Fianna Fáil Party. That may be perfectly wrong but I should like to read the amendment which says:
To delete the letters "(a)" and "(b)" and to delete all the words after "(b)" and substitute there for the following:
"having regard to the continuing violence in Northern Ireland and the deteriorating law and order and security situation within the State, Seanad Éireann directs the Government to provide and to utilise in full, adequate personnel and resources to ensure the safety and wellbeing of all the citizens, and to take all necessary and appropriate steps to combat and defeat subversion and the activities of unlawful organisations."
I would have thought that that was what the Government intend doing. Following on from proposing this amendment, Senator Lenihan delivered himself of a number of comments which I thought were rather odd. I made a note of the ones I thought would be pertinent in the debate that would follow.
Senator Lenihan spoke about punitive measures that can only lead to greater violence. Where did we hear those words before? He talked about a sledge-hammer to crush a nut, about doing away with the principle of habeas corpus and about suspending the constitutional right of the individual to be brought before a High Court judge. He talked about internment by the back door and went on to suggest that this was not the appropriate way to deal with the problem. He finished up by describing it as an Aunt Sally type of politics.
I listened to the Minister's speech carefully, as I am sure every other Member did, I got the impression again that Senator Lenihan had listened to the Minister—I do not want to do him an injustice because he is not in the House at the moment—with not very great care and had made his speech on behalf of the Opposition without having regard to the answers to a lot of the questions which he posed during his speech. His reference to the suspension of the Constitution— and this has been jerked out by subsequent speakers—was dealt with reasonably by the Minister when he said:
The reality is that it has not been so suspended and will not be so suspended by adoption of the present resolution. The protection from constitutional challenge which would be afforded would extend solely to laws expressed to be for the purpose of securing the public safety and the preservation of the State.
The Minister then went on to say:
The Government's decision to introduce this motion and the Bills which are before the other House was taken following two events which issued, in a new and menacing fashion, a direct challenge to the authority of the institutions of State and to their ability to discharge the functions entrusted to them under the Constitution.
Clearly he was answering a question subsequently posed by Senator Lenihan concerning the purpose of this pretty drastic step. The Minister went on to say:
The need to secure the public safety and to preserve the State at the present time arises from the armed conflict in Northern Ireland and not from the armed conflict in Europe, referred to in the 1939 Resolutions.
We ought to be realistic about this. Either we have a national emergency, as the Government have stated, or we do not have a national emergency. Senators on both sides of the House have expressed their revulsion at what has been happening both North and South of our Border over the past seven years. They have rightly condemned the murders, the destruction of property, the attacks on helpless people, the robberies, and so on, that have happened both North and South of the Border. Everybody in this House appreciates that some drastic and firm steps will have to be taken if the situation is not to get more out of control or more impossible than it is. As the Minister said, the final and ultimate horror in this seven sad years of horror was the murder of the British Ambassador, and his secretary, and the bombing of the Green Street Courthouse. These were the final steps that decided the Government that some more drastic and more definite steps would have to be taken to deal with a situation that had got out of hand. That is what is being done today.
I do not want to be a scaremonger contrary to what was said earlier. Some astonishing things were said to which I must refer. It was stated by two Senators, one of whom I think was Senator Lenihan—I hope I am not attributing all the critical remarks to him—that if this motion was passed the subsequent legislation would have a very serious affect on investment here. For a man who is a lawyer and is identified with substantial business interests, I thought that an astonishing situation. I would have thought the reverse the truth, that unless this situation is tackled firmly and quickly, investment which has tended to go down because of the situation North and South over the past six or seven years, would get even worse and that our efforts to secure investment from inside sources and outside the country thereby expanding the economy and create employment would be inhibited if the existing situation was allowed to deteriorate any further.
Another Senator, I believe from this side of the House, said that if this legislation went through the tourist industry would be adversely affected. Again, I thought that a most astonishing suggestion. I would have thought the adverse situation which has been affecting the tourist industry for the past two or three years was directly related to happenings North and South of the Border. It is true that the number of tourists from Great Britain and the United States has gone down. While there has been some increase in the number of tourists from the Continent it is not enough to make up for the other loss. Apart from the economic considerations of their own countries, most people believe, myself among them, that one of the reasons for the dropping off in the tourist trade in recent years—this is borne out by statements made by Bord Fáilte and regional tourist organisations—has been the violence in the North and, more recently, the bombings and other outrages in our part of the country.
If we accept that that is the situation then the Government have to do something about it. The steps they had to take were inevitable. I am as jealous of the constitutional and civil liberties as other Senators but I believe firmly that at times it is necessary to restrict the civil liberties of a small minority who are not prepared to adopt constitutional means or abide by law and order in order that the vast majority of decent law abiding citizens will enjoy civil liberties. It may be a sad thing to think that we have to do such a thing here but it is a question of the greater good of the majority. In this instance the Government have taken the right steps although their steps may be open to criticism. Part of our job as Senators is to be critical, but at least in a positive sense and not to be dragging in red herrings which have nothing whatsoever to do with the situation in hand.
The Government have been accused of taking certain steps which would mean the death in due time of various organisations which stand for liberty, justice, and so on. It has been suggested that trade union organisations will be the next to be threatened, and that the freedom of speech in this House will be threatened. We have been told that there is no ending the awful horrific things which can happen if the Government continue to have their way and maintain a majority in this and the other House. Again, I come back to the fundamental thing, no Government in their right senses would introduce punitive legislation, would disrupt the liberties of the people or seek to suspend the Constitution knowing that within a matter of a short time, one, two or three years, they would have to face the people and look for a mandate to be returned to power. Unless they have good cause, no politician, no political party which had any regard for their chance of return to power, would take such steps.
These measures, unpopular though they may be—and I am not convinced that they are that unpopular with the majority of the Irish electorate, but maybe the grass roots I listen to are different to the grassroots other people listen to—should be passed by the Government. The people want the Government to be firm; they feel that it is the Government's duty to govern and, even if they must pass unpopular legislation which will result in some restriction on the civil liberties of some, it is their duty to do that. I hope this House, and the other House, will back the Government in these measures.
The problem in examining fairly and honestly the proposal before the House today is that it tends to be seen as part of a highly political package and that it is viewed as much for the tactics and timing surrounding it as for the substance of the resolution itself. The debate so far has tended to confirm this by concentrating on subsidiary aspects, on the question of tactical timing, on emotive language and emotive aspects of it. It would be a great pity if the basic questions were not put in this House and if the fundamental issue was not faced squarely by all Senators and answered or met by the Government when the Minister replies.
As a Legislature we have a right and duty to ask for clarification and to seek specific and detailed information on why the Government have come to both Houses, sitting in special session, recalled during vacation, to seek this extension of State power. In so far as possible it would be useful to keep the question clear, basic and very specific and to ask the Minister to do what he said he would be prepared to do in his opening speech, to clarify in specific detail what powers he seeks and why these powers are necessary in the particular circumstances.
It is not an easy time in the political, economic and cultural life of this country. I accept, as most Senators do, in general outline the gravity of problems facing us described by the Minister and the particularly serious issues which he identified. Anybody who denies this is not facing the reality of the current situation here. Against this background it is not easy to argue for a deep concern about our civil liberties and our democratic structures. Never-the less, it is our duty to do so and do so all the more firmly and specifically when a Government Come before the Oireachtas asking for powers which go beyond the normal constitutional provisions and law of the land.
A good deal of comment has centred on the question of what is meant by the proposed state of emergency. I intend, in my contribution, to deal first with this question, what is meant by the resolution of a national emergency? I then propose to ask whether this government package—in isolation and in the way in which it is being put—is the appropriate response to the very serious situation which is facing this country. I will then examine the implications of the particular measure which is linked to the resolution declaring an emergency, the Emergency Powers Bill, 1976, and refer in general terms to the Criminal Law Bill. I appreciate that these measures are not specifically before the House, they are before the other House and we are dealing purely with the resolution. However, it would be unreal and, indeed, not legally appropriate to deal with the resolution for a national emergency in total isolation. We are not passing an abstract resolution for an emergency; we are being asked to pass a resolution which is linked to a specific measure. It may not be the only measure but at this point there is that measure. The Minister has fairly said that he is prepared to answer specific questions on this. I certainly intend to ask specific questions on it having examined, in some detail, the implications of the powers which he is looking for. Finally, I propose to suggest minimal safeguards which I do not believe are contained in the package of measures and which should be contained in it before it is acceptable in a democratic State and in the situation in which we find ourselves in Ireland today.
I should like to begin with the first matter: what is meant by a resolution of a national emergency? The resolution of the Government is, in fact, a twofold resolution. The first part of it would resolve to bring an end to the national emergency created by the armed conflict referred to in the resolutions, pursuant to the said Article, of Dáil, Éireann and Seanad Éireann of the 2nd September, 1939, and to provide:
that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.
A resolution seeking a declaration of a national emergency is a technical legal device. It is not a statement about how serious the situation is in this country. Obviously it is a technical legal device which may flow from an appreciation of the seriousness of a situation. But it is open to the Taoiseach and members of the Government, to individual Senators and to anybody in this country to state the seriousness of the situation and to call for a whole range of measures responding to that situation. This would not involve using the technical legal device of declaring a national emergency and asking for unconstitutional powers, powers that go beyond the Constitution. That in essence is what the Government are doing and what the Constitution itself provides for. It provides for—and I choose those words and I will elaborate on them—suspension of our Constitution, extra-constitutional powers. The net issue before this House is, is it warranted by the present situation? Is it justified by the present situation? Must we, like misers with gold, reluctantly say: "All right, you can have powers that go beyond our Constitution and normal laws which are provided for in a particular section of the Constitution which suspends the normal operation of the Constitution". We should be like misers. We should examine specifically and in detail any proposal by a Government which says: "Please give us powers that suspend the normal operation of the Constitution and judicial review by the courts so that a person cannot challenge the constitutionality of the measure and the courts cannot safeguard in the normal way the fundamental rights and civil liberties of the citizen". That is what a resolution to declare a national emergency is. It is not a statement of how serious the situation is in this country. That is different and separate. It is a technical legal device and it should be approached by Senators as being that. I do not think we differ very much on an appreciation of the seriousness of the situation facing us in this country. What we have to face is the next step of whether it is specifically serious enough for the technical legal device which allows laws to be passed which are outside the scope of any constitutional control and which suspend the operation of the Constitution.
I should like to refer to the attitude of the inter-party committee which was established in 1967 to report on reform of the Constitution because it is useful to have a fairly objective, all-party political view on Article 28 of the Constitution. This committee sat in 1967 and brought in its recommendations. It reported prior to the worsening situation in Northern Ireland, which I think most people would date from 1968-1969 onwards but certainly not in 1967. Therefore I think this is perhaps a more detatched view than we can have at the moment where we are faced with the horror, tragedy and trauma in Northern Ireland and the accelerating violence and difficult situation in this part of the country.
The report of the committee considers Article 28 on emergency powers and states at page 37, paragraph 102:
Article 28.3.3º of the Constitution as adopted in 1937 provided, in effect, for the suspension of certain provisions of the Constitution in time of war or rebellion. By an amendment made in 1939 the expression "time of war" was amplified to include a time of armed conflict outside the State provided each House of the Oireachtas resolves that a national emergency arises out of such conflict. By a further amendment made in 1941 the period during which these powers can be availed of was extended to go beyond the end of hostilities until such time as the Houses of the Oireachtas resolve that the national emergency has ceased to exist.
The Emergency Powers Acts were founded on these constitutional provisions. Those Acts have now gone out of force but the relevant resolutions by the Dáil and Seanad still continue in being. The Oireachtas could, therefore, enact into law at the present time Emergency Powers measures similar to those which were in operation during the war. In effect, this means that the Government has power to suspend certain provisions of the Constitution in peace time, although it must be borne in mind that the approval by resolution of the Seanad as well as the Dáil must be obtained. This situation has given rise to a good deal of criticism particularly on the part of constitutional lawyers and we have carefully examined the views offered in this connection.
We think it relevant to explain, in regard to the fact that resolutions of the Dáil and Seanad declaring a national emergency during World War II are still in existence, that international conditions have influenced successive Governments on this particular subject. In the absence of formal peace treaties between the contestants involved in the war, it has always been deemed prudent to maintain a state of readiness for emergency conditions in this country. The annulment of the resolutions might, possibly, also have given rise to some political misunderstandings in relation to some of the belligerent countries and this was regarded as a further reason for leaving the matter rest. We are of the opinion however, that the time has now come to devise a formula which will answer in some way the complaints which have been made against the continuance in effect of the relevant resolutions.
We considered, in particular, a suggestion that provisions should be made for allowing judicial determination of the question whether or not an emergency has ended. We have come to the conclusion, however, that the matters at issue here are of such a nature that the involvement of the courts is unlikely to provide a satisfactory solution. In our view, political rather than judicial considerations are relevant here, and if any improvement in Article 28.3.3 is to be effected, it must be on the basis of a political formula. We recommend, accordingly, that consideration should be given to the question of adding to Article 28.3.3.º a clause providing that resolutions declaring an emergency shall have effect for a period of three years only unless renewed by further resolutions of the Dáil and Seanad. Some special interim arrangements would of course have to be made in relation to the existing resolutions. It would probably also be necessary to make some provisions for a situation in which the Oireachtas is unable, because of emergency conditions, to meet at the end of the proposed three-year period.
In a more detatched time you had an all-party committee of the Dáil recommending—and the recommendations that are inserted in the report are, as I understand it, unanimous recommendations—a change in the attitude towards this technical device of declaring an emergency which would ensure that it would lapse within a period of three years. Of course, this was not taken up either by the Fianna Fáil Government, which was in power at the time, or subsequently by the Coalition Government when it came into power. It is fair to say that the real problem in trying to discuss and identify the erosion of this formula of a national emergency is the fact that it has been on our statute books and has not been repealed by successive Governments. Unfortunately, in Ireland we have not got a deep concern with civil liberties. That we have not valued our democratic structures and the fortifying of these structures in our system is unfortunate. Therefore we have cheapened the currency we are dealing with and we have cheapened our values in that regard.
However, there is a difference between the latent possible invocation of the national emergency dating from September, 1939, and a declaration made by this House in current times related to a specific measure, the Emergency Powers Bill. That is concrete evidence of implementing the concept of the emergency. Therefore one must judge the two situations very differently. In giving an assessment of the impact of the use of this technical device of declaring an emergency, I should like to turn to what I think is regarded by lawyers in this country as a classic examination of the effect of declaring an emergency, that is the effect described by Deputy John Maurice Kelly in his book, Fundamental Rights in the Irish Law and Constitution. I quote from the second edition, page 31. He recites the text of Article 28 and then goes on:
These provisions give unequivocal answers to the questions "Where does the ultimate power of the Irish State lie?" and "Suppose a serious conflict took place between legislature and judiciary, could the legislature win by constitutional means?" This subsection not alone withdraws every constitutional restraint from the Oireachtas when legislating "for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion", but, in addition, makes the question of what is "time of war or armed rebellion" entirely one for the Oireachtas, and one on which the courts can have nothing to say. Thus it is perfectly possible in time of war or armed rebellion for the Oireachtas, by prefixing to any Act the declaration that it is for the purpose of securing the public safety and the preservation of the State, to withdraw the contents of the Act entirely from the control of the Constitution, even where the contents of the Act, or some of them, have manifestly nothing whatever to do with such a purpose; and the objection that no civilised legislature could behave so unreasonably is much weakened in this instance by the extraordinary fact, not generally appreciated, that the resolution of national emergency passed by the Oireachtas on 3rd September, 1939, has never been rescinded, so that in Ireland a national emergency still exists.
If the Oireachtas refrains from making use of the "emergency" to pass Acts which are repugnant to the Constitution, it refrains for the same kind of reasons as those which prevent the British Parliament from decreeing the slaughter of blue-eyed babies. In considering the value of the Fundamental Rights Articles, therefore, one must bear in mind not only the serious limitations contained within the Articles themselves (which will be indicated presently) but also the fact that it is, ultimately, by the grace and goodwill of the Oireachtas alone that those Articles, together with the rest of the Constitution, remain cognisable by the courts at all.
Deputy Kelly was making the point that the latent state of emergency dating from 1939, now in its thirty-seventh year, remained dormant owing to the goodwill of the Oireachtas under the same checks and balances that prevent the British Parliament as a sovereign parliament from bringing in arbitrary and aggressive laws. That is the only check on the abuse of power in our State. When Deputy Kelly wrote this it was at a time when the checks were there because there was less of a threat to the institutions of our State than we have now.
As always the crunch comes when there is a serious threat and use of violence with people prepared to try to undermine by violence the institutions of that State. It is at that point we have to try to rely on the structure of our society, the democratic structure, the texture of it, the checks and balances that are in it. I believe that we have undervalued the texture of our democracy by allowing successive Governments to maintain a latent state of national emergency for 37 years using various cheap political reasons. That is something we stand accused of as a country and as a people. We have cheapened the value of our democratic State by allowing an unreal state of emergency to remain for reasons of political convenience. Now it makes it all the more difficult now to try to spell out when we revoke one state of emergency and proclaim another, the true purpose of the resolution before us today. We must spell out the real significance of this to the citizens of this country and to try to think it through ourselves as legislators.
I should like to elaborate a little further on the difference between the technical device of a resolution declaring a national emergency arising out of an armed rebellion or an armed conflict outside the State itself, as provided in Article 28, and an appreciation of the difficult urgent and even emergency situation in this country. It would be helpful to separate these two issues. The Government are entitled at the moment to say that the situation in this country is very serious indeed, entitled—though I do not intend to elaborate on this—to do so for more than just security reasons, to say that the economic situation is extremely serious. The Government are entitled to take a whole broad range of measures in response to that. They can, for example, certainly increase the burden on the ordinary taxpayer by increasing very considerably the police force, the Defence Forces, the sort of radio equipment and so on that they have, and to ensure more visible presence of the security forces. The Government can respond in that way, calling the situation an "emergency one. I am afraid that to the man in the street it is in that sense that they see this resolution of a "national emergency". It is very important that we declare that that is not the situation. The Government are not proclaiming the urgency of the situation and responding to it. They are doing a different thing qualitively. They are proclaiming that the situation is so urgent that they need powers that go beyond the Constitution and that they need to suspend the Constitution to exercise those powers. That is why——
Certain Bills referred to by the Senator are coming before us. Was it necessary to do anything at all in regard to the existing resolution to deal with these Bills? Could the existing resolutions of 2nd September, 1939, not still continue as the basis for these Bills? Are we not, in fact, facing a Government which is looking at the realities of our situation, bravely cleaning them up and getting a secure basis for the Bills which they are recommending to the House? I do not want to interrupt the Senator beyond that. Of course, in the United Kingdom I do not think that we would require any resolution.
Let me meet the precise point put by Senator Alexis FitzGerald. I had said that the problem about trying to identify precisely what is meant by "national emergency" is complicated by having a latent national emergency for 37 years. We have cheapened the value of the Constitution in our system. There has always been the potential of bringing in legislation which suspended the Constitution in relation to it. It has not been done during that period——
Certain Acts depend on it.
It is a specific question that merits a response. A considerable body of legal opinion, of constitutional opinion, and at least one Supreme Court Judge's view in private conversation, would be that, since the whole substance of the national emergency of 1939 is not there, there is not a valid continuing declaration; that it is without substance, without reality, and that as a figment it could not survive judicial construction. I would tend to think that there is very considerable validity in that opinion. Perhaps the Minister would clarify whether this is the reason for revoking a rather dubious state of emergency, seeking a new state of emergency and the powers that follow from that, and the right to bring in legislation which is beyond the reach of any constitutional provision.
The tabling of this resolution and the recall of both Houses to deal with it is a formal indication by the Government that they require special legislative powers which would otherwise be unconstitutional, which are beyond the reach of the Constitution because they are related to the resolution of a national emergency and recite in their title that they are for securing public safety and the preservation of the State in time of armed conflict in respect of which there has been a resolution in both Houses.
I have read with care the introductory speech of the Minister. I have noted, and agree in very large measure, with his identification of the seriousness of the situation, of the problems, of the tensions in our society. In my view he has not used emotive and exaggerated language. He has used precise and fair language in filling in the background.
I have not seen a specific explanation of why the Minister requires, or the Government requires, the power which is proposed in the Emergency Powers Bill, which, if it were not for the state of emergency and formula in the title, would be unconstitutional. They are unconstitutional powers unless they come within this formula. Why do you want them? Why does the Government need to pass legislation allowing for detention of a person for seven days? I will come back to that in more detail when I look at the precise measures. That is actually the key question and it certainly determines my attitude towards this legislation, not general statements about an urgent situation which can be met in all sorts of ways and which have nothing to do with this technical legal device, but a very precise identification why this power is felt to be needed by the Government and why we, as misers, must say "Right, you have convinced us that it is necessary to allow the Government to bring in powers that go beyond constitutional checks. You have convinced us of its necessity in a particular form. We concede it, perhaps with safeguards, a tightening-up of the duration, but we are prepared to concede it." That burden has not as yet been discharged in any way by the Minister. I will make the questions much more specific when I come to deal with the wording of the Emergency Powers Bill, which has to be taken with this declaration of emergency since it is not an abstract declaration but a declaration related to that measure as the first of the Emergency Powers measures before the House.
In trying to identify and describe the technical device of an emergency I should also like to deal with its duration. The likely length of time in operation is a very important aspect in the decision of the two Houses whether to accept the resolution and declare the emergency. Here we have that unhappy precedent of the 1939 Resolution. We have an emergency that continued as part of the law of the land for 37 years. It is a very sad reflection on our concern for democracy and civil liberties, on our real concern for the basic fortification of the structures of the State. What is likely to be the duration of this new national emergency for which we are asked to pass this resolution? It is a resolution related to the situation in Northern Ireland. The wording of the resolution is:
That Seanad Éireann hereby resolves, pursuant to subsection 3º of section 3 of Article 28 of the Constitution ... that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.
Does anybody in this House believe that there is going to be such a dramatic change in the life in Northern Ireland in its broadest sense as to end a concept of armed conflict there in their life times, in my life time, in all our life times? How long do we propose to introduce this national emergency for? As the situation stands, as the Constitution stands and as the Emergency Powers Bill recites, it can be ended by a resolution of both Houses. As it has taken us 37 years to end the declaration of a national emergency after World War II, when will we end a declaration of a national emergency related to Northern Ireland? I would have to take a very pessimistic line on that. Unless we were to adopt the recommendation of the Committee on the Constitution in 1967, that it would have a duration of only three years—that there would be a built-in terminal period, that it would lapse after a certain period, we are taking a decision to declare for our lifetimes that this country is in national emergency. This whole language is cheapened by the fact that we negligently and politically, in a devious and dishonest way, allowed a previous national emergency to exist as a blatant factor in our law for the last 37 years. It is difficult to bring home precisely the sort of step we are contemplating taking. If Senator Alexis FitzGerald feels that it is at least courageous and straightforward to end one emergency and declare another one, I would say to him "Would you also declare a limit to that emergency unless it is actively and positively renewed? Will you provide that it lapse unless renewed so that we are not putting ourselves for the duration of all our lives into a new state of national emergency where the Constitution is only a document subject to the will of the Legislature and not a fundamental document which protects the citizen against the use of power by the State and ensure instead that it cannot be eroded by the legal formula that I have described?
I do not think that legislation would be in accordance with the Constitution.
I certainly agree with the Senator, it would require a constitutional amendment to write in that automatic termination. It is envisaged that we will be having a constitutional amendment on another matter in relation to family law. If we could combine the two and save on expense we could still provide for a terminal period on a declaration of national emergency.
The second matter which I should like to deal with in some detail, in considering the resolution asking this House to declare a new national emergency, is whether this is the appropriate response—I mean that in a very basic way, not in a superficial political way—for the people of this country in the situation in which we find ourselves. The Minister said in his speech when introducing the resolution, "The Government have faced the situation head on. We have met force with the legitimate force of the State and of the law." He proposed to meet force with the new force that he wants, new powers of this sort contained in the Emergency Powers Bill and the Criminal Law Bill. Is this the appropriate response to the tensions and seriousness of the current situation? Is it the appropriate response in that it appears to be a response in isolation?
I am posing hypothetical questions because I do not know the answers myself. I think a question about the adequacy of the Government response needs to be posed. In particular, it needs to be posed because the real battle is a battle for the minds, the hearts and the trust of the people of this country. One is talking, for example, about an 18-year-old or 19-year-old unemployed person. One is talking about those people whom we hope to rely on to support the structures and existence of this country, not as a static thing but as an evolving country which expresses the personality, the aspirations, the feelings, the humanity of the people of this country. If the response is to meet "head on" with further penalties and with new and expanded powers, my real question is: is that the appropriate response? Is it the appropriate response in isolation? I would welcome some indication from the Minister of the range or possible options that might have been considered and, in particular, the possibility of political initiative.
This is a very key issue at the moment in the light of the sort of political developments taking place in Northern Ireland. The women of Northern Ireland are getting out on the streets and marching. They cannot fill a political void because they are not in a position of power to do it, because they are not equipped to do it, because it is not their role and function to do it. All they can do is get out on the streets and march, and walk, and ask. It is the politicians of this island, both North and South, and the politicians of Britain, who have to come out with a response. The more we make a statement of the difficulties facing this country, the more we identify the seriousness of the situation, the more crucial it is that we ensure that our response is an adequate one, and not one which can be faulted as being too narrow, and too specifically related to meeting force with force.
Apart from the question of seeking to fill the political void, and seeking to take a political initiative, we must strive for a more imaginative and courageous response to the very complex difficulties facing the country. I also believe any measures which the Government bring in which are of this sort, meeting force with force, should be accompanied by measures which reinforce the very structures of the State which it is contended are at risk.
