A Chathaoirleach, last night I began by examining what is meant by this motion resolving that there is a national emergency. I emphasised that this is not to be regarded as a statement of how serious or how urgent the situation in Ireland is today. That can be done, and is being done in various other ways, and there is nothing to stop a Government Minister, or the Taoiseach, either on television or in either House of the Oireachtas, from saying this and emphasising it. I am sure many people feel there is a very urgent situation. The resolution before us is a technical legal device, specifically provided in an amendment to Article 28 of the Constitution, to allow the Government to come before the Oireachtas and ask for power to bring in legislation which would otherwise be unconstitutional. Therefore I believe the focus of our discussion, and the focus of our questions to the Minister, should be to elicit from the Government why, in responding to a serious problem and a serious situation, they want power which would otherwise be unconstitutional.
There is a very substantial onus on the Government to spell out fully the specific details related to the type of power contained in the Emergency Powers Bill, to say why this power is deemed to be necessary to meet the precise threats, or urgency, or difficulty in the country.
In his opening speech the Minister did not do this. He has indicated that he would be willing to make his views more specific and to deal with the provisions of the Emergency Powers Bill. I propose this morning to spend some time identifying the precise nature of the legal powers the Minister is looking for which would otherwise be unconstitutional, the precise situation this would leave, and then to pose very searching questions to the Minister about the necessity for this, and the desirability of extending the scope of our law in a way that infringes the fundamental rights and civil liberties of citizens but comes within this technical device of proclaiming a national emergency.
This is a very grave type of step for the Oireachtas to take because any such legislation is immune from constitutional challenge. That is the effect of Article 28. It cannot be challenged in our courts. The individual is without the protection of the courts in relation to that legislation and, therefore, we must be very careful, indeed, in taking any decision and we must be fully aware of the implications of it. I pointed out last night that the problem in identifying the nature of this motion declaring a national emergency is that we have cheapened the concept and devalued the concept of our fundamental law, of our civil liberties, and of the exceptional nature of a national emergency, because there has been a latent declaration of national emergency proclaimed in 1939 which has remained there and has never been revoked by the Houses of the Oireachtas. Successive Governments bear a very substantial measure of deep responsibility for this, because they employed political attitudes and excuses which do not carry any weight to continue latent powers which go beyond what should be acceptable in a democratic society. This has resulted in a cheapening of the quality of our democracy, the quality of our structures, our concern for civil liberty. We are all the poorer for that. We now pay a price for it, even in debating this measure, because it is hard to find meaningful words to express concern about what is meant by declaring a national emergency.
I should like to turn to the amendment to the motion before us proposed by Senator Lenihan and Senator Eoin Ryan on behalf of Fianna Fáil. The net effect of this amendment would be to delete the part of the Government motion declaring a new emergency but to retain the terminating of the 1939 emergency and to add a hortatory formula calling on the Government to use every means to ensure order and security in the State. I have now been seven years in the Seanad and I think this is where I reach the lowest ebb of cynicism in my reaction to the amendment put forward by Fianna Fáil.
The effect of it is that Fianna Fáil now ask both Houses to end the state of emergency declared in 1939 which they left on the Statute Book during 30 years of being in a position to do something about it. The way in which they have come to this decision has been commented on sufficiently. Whatever else Fianna Fáil may be accused of in relation to the state of emergency and, indeed, in a whole range of civil liberties, they cannot be accused of consistency. They cannot be accused of having a firm position which they will identify and stand over.
I do not propose to deal at any length with this amendment. I regard it as a cynical political piece of nonsense. The only reason Fianna Fáil put down an amendment to a motion which brings to an end the state of emergency is that they know it will be defeated. It is as cynical as that. It is not worthy of consideration or examination in any detail.
I should like to return instead to the implications of the motion before the House.
Before looking at the particular sections, both of the Emergency Powers Bill and the Offences Against the State Act which are relevant to the nature of the power the Government are looking for, I should like to develop a little bit the theme I had just started on last night when the House adjourned. That was the question as to whether these sort of measures, the package the Government are bringing forward, in isolation, are the appropriate response to the very serious and critical situation here. I mean that not only in relation to the use and the threat of violence, and the increasing incidence and evidence of violence, but also the serious economic situation, the serious social and cultural challenges that will face this country. There is a need for an imaginative political initiative to fill a gap which will only get worse if the response is one of meeting force with force face on, as the Minister said in his introductory speech. That, without any political attempts to break deadlocks and create possible political solution to the problems in this island North and South, could be a very bankrupt policy of continuing confrontation and violence, breeding further reaction from those who are prepared to resort to violence.
I should like to see more willingness, not just by the Government but by the people of this country, to consider the sort of political initiatives which can be a real response to the women and now the men of Northern Ireland—the ordinary people who are getting out on the streets and marching. They are entitled to more than this type of package legislation to meet the specific security problems. They are entitled to ask all of us to think much more seriously and much more openly about political initiatives on this island which can resolve the crucial problems and which can allow us to build and to stop destroying the country.
As well as the need for a better political response, I believe there is also very grave need here in the South to fortify and to make respectable our institutions and our administrative processes. We should not allow, however regretfully, continuing erosion of our civil liberties, increase in penalties, increase in this type of legislation, without the strong complementary introduction of increases reinforcing our democratic institutions and our administrative processes which must continue to attract the allegiance of the citizens of this country. Our structures must be attractive to the people and evoke their loyalty and respect.
In this regard, I would ask the Minister to consider the absolute necessity to introduce an independent police authority so that there cannot be an alienation of the Garda from the people of Ireland, so that there cannot be rumour built on rumour of either actual abuse or allegations of abuse. Rumours are nearly as bad as the reality. Justice must be seen to be done. Allegations of brutality must be seen to be impartially investigated. The people who will need evidence of this are the young—the 17-, 18-, 19-year-olds a significant proportion of whom will be unemployed, who will have to face personal crises and difficulties over the next few years. We need institutions and administrative processes that bind them in loyalty and trust to our State. The Government, by meeting force with force face on, are not building the sort of structures which will reinforce the allegiance and trust of our people. That is a very significant danger.
We must also ensure that the morale of the Garda is at a high level. It is my understanding that the morale of the Garda at present is at a very low level. I do not know enough about the details of this to be able to comment authoritatively on it. There is substantial unease, frustration, and there is even the possibility of the Garda deciding, in the absence of having the right to strike, that they will go on sick leave for a single day to demonstrate this bubbling frustration and discontent. This discontent is a discontent with personnel at the top, with conditions and with various other aspects. That undermining of morale is highly relevant to the ability of this State to maintain its democratic structures, to maintain the allegiance of the people of the State, to the ability of our society to resist the undermining threat of the bullet and the gun and those who are prepared to use force and violence. It is not easy for a democracy to maintain its equilibrium and its balance. This package alone is not a balanced response to the very serious threats to our institutions and to our State.
Another appropriate response would be to process a little more rapidly the establishment of an ombudsman type of structure for complaints against maladministration. The Government are asking for very extended power, State power, to cope with the difficulties before the country. They must compensate by ensuring responsibility, by accountability, by independent investigation, by accountability to an ombudsman type process. As well as that there should be in the economic and social fabric of our country a great deal more participation and devolution in decision making. These factors are not unrelated to the current situation. They form part of a much broader response we should have to the difficulties of our country.
I should now like to turn to the specific details of the proposed power the Government are asking for, which would be unconstitutional if it were not for this technical device of resolving that there is a national emergency thereby making it immune from constitutional challenge within the terms of Article 28. I should like to turn to the Emergency Powers Bill, 1976, which is directly linked to the resolution of emergency. It need not be the only Bill in this category but it is the only one at present which we have to consider. By reciting in its Title that it is:
An Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a Resolution on the —— day of ————, 1976, pursuant to subsection 3º of section 3 of Article 28 of the Constitution.
it will have this immunity from constitutional challenge.
I should like to refer to its duration. Section 1 can be misunderstood, and has been, by some commentators on this Bill, as appearing to provide that the second section allowing for arrest and detention for seven days will lapse after 12 months unless extended by Government order. It has to be clear that this section will only lapse in the sense of not being operative, but it can be revived and reactivated again at any time, in ten years' time, in 15 years' time, in three years' time, by an order of the Government, not by these two Houses being recalled in special session but purely by Government order.
There is some control by the Oireachtas. In my view it is too little. There is the fact that the order will be placed before both Houses and a resolution annulling the order can be passed within 21 days. The order will then be annulled without prejudice to anything done in the interim. All of us who have been in this House for any length of time know that this negative motion procedure is a very minimal control indeed. It does not involve the Oireachtas in an assessment of whether it is necessary to revive the powers of arrest, custody and questioning under section 2 of this Bill. It leaves that decision purely to the Government and then provides the power to table a motion annulling subsequently, knowing the very slim hope there would be of an actual possibility of such annulment.
It would be an improvement if the section would allow the Government, to lay the order in draft before the Oireachtas and so to need to come back to both Houses in order to revive this power. In those circumstances I would accept that it has, in a sense, a duration of 12 months, unless there is the legislative will for it to continue. I am trying to identify minimal safeguards which should be in this Bill if the Minister can satisfy us that he needs powers which would otherwise be unconstitutional. There is that onus on him, in replying to the debate, to try to so satisfy us.
Looking then at section 2, relating to arrest, custody and questioning of persons suspected of certain offences, this Bill provides:
A member of the Garda Síochána (on production of his identification card, if demanded, where he is not in uniform) may without warrant stop, search, question and arrest any person, or do any one or more of those things in respect of any person, if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence under the Offences Against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act, or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information, relating to the commission or intended commission of an offence.
That section is very like section 30 of the Offences Against the State Act, 1939, except that there is the substitution of the word "question" for the word "interrogate" which is used in section 30 of the Offences Against the State Act. Obviously it is not a nice piece of legislation. It is the sort of legislation that a society like ours is faced with and has had on its Statute Books, necessitated to counter the violence and threats of those who would use force to achieve their objectives. The section then goes on:
A member of the Garda Síochána (on production of his identification card, if demanded, where he is not in uniform) may, for the purpose of the exercise of any of the powers conferred by subsection (1) of this section, stop and search any vehicle or vessel ...
Again this is not a novel type of power. Subsection (3) is the one which necessitates a declaration of a national emergency because it would otherwise be unconstitutional. It provides:
Whenever a person is arrested under this section, he may be removed to and kept in custody in a Garda station, prison, or other convenient place for a period of 48 hours from the time of his arrest and may, if an officer of the Garda Síochána not below the rank of chief superintendent so directs, be kept in such custody for a further period not exceeding five days.
This provides for a person being kept in custody by the Garda in either a Garda station, prison or a convenient place for a maximum of seven days.
The first very substantial point of principle in regard to that sub-section is that it blurs a distinction which I regard as important between the investigatory role and powers of the Garda and the custodial function and powers of a prison officer. The Garda, in our system and our type of administration, are not custodians. They have very limited custodial powers, for example, in relation to a person who is seriously mentally ill. They have some very limited custodial power before a person can be placed in proper custody. Indeed, there was a very undesirable abuse of the custodial power of the Garda in relation to holding juveniles in the Bridewell as the only appropriate place because there was no institution in our State to which they could go. That was undesirable for all sorts of reasons, not the least being that the Garda are not a custodial authority. They are the investigatory organ of the Executive. They investigate and decide if crimes have been committed. The DPP or the Attorney General then decides whether a prosecution will be brought. It is in our prisons and other institutions geared for formal custody that the necessary safeguards and minimal protections of the individual apply. I should like the Minister to elaborate in some detail on why he is going to give an extended custody power of seven days to the Garda.
I should also like to ask him why we have the formula "Garda station, prison, or other convenient place." What is meant by "convenient place" there? To me it engenders a vision of a place which is, perhaps, not even known to the citizens of this country. Whether this would be a reality or not, it could certainly be the subject of a rumour that there was some "convenient place" somewhere where people could be held for seven days by the Garda. That is very undesirable and I would welcome very specific elaboration by the Minister on why he feels it is necessary.
Reference has been made to the fact that after the period of 48 hours, which is the present law, it is an officer of the Garda Síochána not below the rank of chief superintendent who can decide that the person can be detained for a further five days. This does not compare favourably with the position in another jurisdiction, namely, Britain where it has to be done by the Home Secretary, an accountable political figure. It again reinforces a possible suspicion that the Garda are being given very dramatic powers in this section. For that reason too it reinforces the possibility of rumour, disquiet and alienation between citizens and the Garda.
There is no indication in the section as to whether a person so detained would have a right to a legal adviser. Unfortunately, this right to a legal adviser has not been clarified or resolved in our law. It is not something therefore on which one can give a very precise answer. If the Garda are to be given power to detain persons, it should be expressly inserted into any such provision that they would have a right to the presence of their legal adviser. Nor, indeed, is it in any way stated here—and therefore it is difficult to know whether it would be the fact —that relatives would know where the person was being held. Again a denial of that goes far beyond anything that would be necessary in our State in proposing to extend the powers of the Garda and thereby diminish the liberties of the individual.
It could cause great distress and apprehension and immense heartache to a family if they did not have the right of knowledge and access. There must be a right of knowledge of where the person was and access to that person. I should like the Minister to clarify whetherhabeas corpus proceedings would apply to persons detained in this way. If there was no reasonable ground for such detention, or if there was some malpractice in relation to extending the detention, would habeas corpus proceedings apply?
So much for the circumstances surrounding this power which the Minister is seeking. It is unacceptable that the Garda will be exercising this extended custodial function; that the venue can be a Garda station, a prison or "a convenient place"; and that there is no express provision guaranteeing access to a lawyer or even a doctor. If people have a particular illness or want their own doctor, will they have access to their doctor during this period? Will there be information given to a relative of where the person is?
Another basic question is what will the Garda be doing in this extra five days that they are not doing in 48 hours? What are the powers of the Garda in this regard and in what way is 48 hours insufficient and seven days necessary to the discharge of these powers, and is it desirable that the Garda have seven days to discharge these powers? To answer that one has to look at the relevant sections first of all of the Offences Against the State Act, 1939, and then of the Criminal Law Bill, 1976, which is not actually before this House but which, I think, is relevant to trying to understand the scope of the power being requested by the Government.
Section 30 of the Offences Against the State Act, 1939, provides that:
A member of the Garda Síochána (if he is not in uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid.
So section 30, which has been on our statute book for a very considerable time now, since 1939, gives the Garda power, without warrant, to stop, search, interrogate and arrest any person on suspicion of an offence under the Offences Against the State Act, 1939.
Normally in our criminal law the police when arresting can question a person and the person is not required to answer those questions. There is what is called the right to remain silent, the privilege against self-incrimination, the right to say "I do not wish to make a statement, I do not wish to say anything", and our criminal law carries a presumption of innocence and says: "The silence of the accused will not be interpreted as in any way evidence of guilt, evidence of something to hide". There is a presumption of innocence. In the normal processes of our law, in that careful balance between the forces of the State and the individual accused or suspected of a crime, there is the right to remain silent. However, that right itself has been seriously curtailed by another section of the Offences Against the State Act and that is section 52 which provides that:
(1) Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Garda Síochána may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence.
(2) If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the Garda Síochána, fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.
Therefore there is a very different position in relation to offences under Part IV of this Act, which includes offences such as membership of an unlawful organisation. The fact that any member of the Garda Síochána can require a person to answer questions, can demand a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence, is very far-reaching legislation which has been on our statute books since 1939.
This section is very relevant to considering the extension of the time for which the Garda may hold a person from 48 hours to seven days. In the normal process one would say our law does not allow legal interrogation, and yet under the terms of section 52 our law allows prolonged questioning by any member of the Garda. One could presumably legally interpret that as being capable of extending to a succession of members of the Garda. There is a requirement that the accused respond. He cannot remain silent. If he refuses to reply or gives misleading information, he commits an offence and he can be convicted and get a prison sentence of six months. So there is as part of our law as it stands at the moment the right of the Garda to question extensively, to interrogate and to convict of an offence if there is a refusal to reply or misleading information given.
The Minister has a responsibility to clarify to this House to what extent the powers of section 52 support the proposed extension from 48 hours to seven days. Is it thought necessary that there be extensive questioning of an individual over a period of seven days by the Garda in a Garda station, prison or convenient place? Even if this is not the reason for wanting this extension of power, must it not be an accusation that will be levied that the police are interrogating over a period of seven days and are legally entitled to do that under our law at present if we pass this Emergency Powers Bill? What are the implications and what are the possible dangers that this might pose to the concept of civil liberties and to the protection of the individual?
There is one other measure which is directly relevant to the powers of the Garda and that is section 7 of the Criminal Law Bill, 1976. Again I am aware that this is not properly before the House but I think it is linked to the resolution and certainly linked to any attempt to identify what the powers of the Garda will be. The explanatory memorandum to the Criminal Law Bill states explicitly that section 7 refers only to section 30 of the Offences Against the State Act, 1939, and the new sections of the Emergency Powers Bill, 1976. The explanatory memorandum says:
Section 7 gives the Garda Síochána certain powers in relation to persons in custody "under the provisions of any enactment ... under which persons may be arrested, kept in custody and questioned". At present, section 30 of the 1939 Act, gives power of arrest, custody and questioning and such a power is also proposed in the Emergency Powers Bill, 1976. Section 7 of the Bill is intended to apply to persons in custody under either of these provisions. Subsection (1) sets out the proposed Garda powers. Subsection (2) relates to obstruction of the Gardaí when exercising such powers ...
Therefore the explanatory memorandum would lead one to believe that it would be stated expressly in the section that it was confined to section 30 of the Offences Against the State Act and the Emergency Powers Bill itself. However, when one looks at section 7, this is not the case. There is at least ambiguity, if not a more serious lack of clarity in the situation.
Section 7 (1) says:
Where a person is in custody under the provisions of any enactment for the time being in force under which persons may be arrested, kept in custody and questioned, a member of the Garda Síochána may do all or any of the following in respect of him:
(a) demand of him his name and address;
(b) search him or cause him to be searched;
(c) photograph him or cause him to be photographed;
(d) take, or cause to be taken, his fingerprints and palm prints;
(e) make or cause to be made any tests designed for the purpose of ascertaining whether he has been in contact with any firearms (within the meaning of the Firearms Acts, 1925 to 1971) or with any explosive substance (within the meaning of the Explosive Substances Act, 1883) and for that purpose take swabs from his skin or samples of his hair;
(f) seize and retain for testing anything that he has in his possession.
Subsection (2) provides that any person who obstructs shall be guilty of an offence.
This constitutes a considerable extension of the investigatory powers of the Garda, both in a questioning sense and in a physical detection sense. The explanatory memorandum may have indicated they were confined to section 30 offences or to section 2 of the Emergency Powers Bill, but the particular formula adopted is open to the interpretation that it applies to the whole range of arrestable offences where persons are in custody under the provisions of any enactment for the time being in force "under which persons may be arrested, kept in custody and questioned". There is a whole range of arrestable offences, a very broad range—anything that is not a minor offence is an arrestable offence for which a person can be arrested, kept in custody and questioned.
I think the Minister would try to make a distinction between such questioning and either what is called in section 30 "interrogation" or what is called in the Emergency Powers Bill "questioning". I would submit that is not a valid distinction which can be drawn. Any accused arrested and taken into custody can be questioned by the Garda and therefore he can be classified as "arrested, held in custody and questioned". This is clear from the Judges' Rules which apply to the whole range of criminal offences in this country. I would like to quote the Judges' Rules in this regard because they are not intended only for the exceptional case, they are for the whole range of our criminal law. They are set out in a case reported in the 1972 Irish reports at page 312 called The People (at the suit of the Attorney General)v. Cummins, and I quote from page 317 of that report:
The Judges' Rules which are mentioned in the judgment of Walsh J. are in the following terms:
1. When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, for whom he thinks that useful information may be obtained.
2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such a person before asking him any questions, or any further questions as the case may be.
3. Persons in custody should not be questioned without the usual caution being first administered.
4. If the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words of such caution should be omitted, and that the caution should end with the words "be given in evidence".
5. The caution to be administered to a prisoner when he is formally charged should therefore be in the following words: "Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence." Care should be taken to avoid the suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person making a statement which might assist to clear him of the charge.
That is enough reference to the Judges' Rules to make it clear that, when a person is charged with an arrestable offence and taken into custody, then he can be questioned. Therefore you have an offence for which a person can be "arrested, taken into custody and questioned". That formula applies to the whole range of serious criminal offences. To me the effect of section 7 of the Criminal Law Bill as it stands at the moment would be to open up the possibility of any such a person being searched, photographed, having fingerprints and palmprints taken and also swabs of skin and samples of hair taken from him. When we consider this Bill it will be necessary to put down and seek considerable amendment to prevent that type of intrusion.
The relevance of this section to my basic argument is that it defines the sort of power that the Garda have: power to investigate, power to question. In the normal range of offences the Judges' Rules allow a person to remain silent and limit strictly the powers of the Garda. I would like the Minister to clarify the limits on the powers of the Garda to question persistently over seven days. What are the checks on that power in light of the terms of section 52 if we allow detention by the Garda over that longer period? What are the legal checks, the constitutional checks? We are not concerned about the Constitution in this; it is outside the scope of the Constitution. What are the checks that will ensure that there is a protection of the individual in that position and that there are proper safeguards? To what extent can the Government ensure that the checks, if there are checks, are enforced? What power of supervision is there, what power of accountability from members of the Garda? What possible power of supervision on accountability will this House have over that activity? We know that the courts will not have judicial review because individuals cannot challenge the constitutionality. The courts might have some control if the individual can bringhabeas corpus application, I should like clarification of that aspect.
These are very important questions because they identify the particular power which the Government are seeking. The onus is a very severe one of justifying the exercise of that power, justifying whether it conforms to minimal standards of protection of the individual in our State. My difficulty is that nothing in what the Minister said or what the Taoiseach said bears in fact on the precise scope of this power. Their contributions have not as yet related to it, so I have to wait for the Minister's response to the questions I am putting. I would have thought that, if the Minister does feel it is absolutely necessary to have the power to hold a person for more than 48 hours, to hold a person for seven days then there are ways of doing it that would be less objectionable than the type of formula in this Emergency Powers Bill.
First of all, the type of custody should be custody in a prison and only in a prison. Members of the Garda in discharge of their investigatory functions could have access to that person; access for the purpose of questioning, access for the purpose of fingerprinting, photographing, taking swabs of skin, hair and so on; but at the same time the person would have the security of being in a place that is a place of custody, an equipped place with the safeguards of prison regulations, and an identifiable place, not a place of "convenience" somewhere.
The importance of this cannot be underestimated. The real battle is a battle for the minds and hearts and allegiance of the people of this country. If the people begin to believe, and begin to get rumours of the fact that people can be taken and kept in unknown places of detention for a period of seven days during which, legally under our system, they can be questioned by a succession of members of the Garda and are not allowed to remain silent but are supposed to answer these questions and commit offences if they give false or misleading information not only about their own activities but about the activities of others, it will lead to sharp alienation from the Garda. That is getting very close to what we would condemn in any country as going beyond the bounds of what is acceptable. It is not possible to have a satisfactory definition of torture, but persistent questions over a sustained period must come within the possible definition of undue harassment and intimidation of an individual. We must ensure that whatever power the Government feel they need in this situation does not make that type of harassment legal and therefore create a climate where it is feared and apprehended it might be taking place.
I am concerned at two levels. Obviously there is a concern that harassment might in fact take place. I believe that there has been evidence of some brutality and intimidation by our Garda, that it is very small, but any element is regrettable. I am much more concerned about the apprehension or belief or rumour that these powers will be abused, and when I say abused what worries me is how far one can go and still be perfectly legal. One does not have to "abuse" in the sense that the individual Garda is authorised, apparently to question extensively over a period of seven days. That is very worrying.
Let me get back to what would be the very minimum that I believe this House should approve if in the event of the Minister justifying the need for a power of detention for seven days, which would be an unconstitutional power unless it were within this formula of a national emergency and an Emergency Powers Bill, the absolute minimum is that the person be detained in a prison with people whose function and duty and responsibility is a custodial function, not an interrogatory function; that access be allowed to the Garda to discharge their investigatory functions; that there also be right of access by the person's lawyer, the right of the person to have his legal adviser present, in particular in view of the scope of Article 52. If a person must answer the requisition — he must answer the questions, and commits an offence if he answers in a false or misleading way — he should have his lawyer present. That is again a minimum safeguard to the individual in the circumstances, and I see nothing in the presence of the lawyer that will undermine the effectiveness of this power, whatever the reasons and the possible scope of reasons for this type of measure. A person should have his legal adviser present during questioning and it should be clear that a person would have right of access to a doctor and to relatives in the same way as any other person held in custody over a period would have. These are the minimal safeguards in what is not at all an attractive proposition, but which the Minister may be able to argue for and justify or try to justify: that a person be detained for a period of seven days instead of for a period of 48 hours. I cannot speculate usefully any further on that in the absence of any attempt, as yet, any effort at all by the Minister to justify precisely the need for that power.
I would like to conclude then by saying that to me the essence of what we are doing in this and the other House, in considering this resolution for a declaration of national emergency is this we are considering a proposal from the Government that they want power to bring in legislation which is beyond the bounds of our Constitution, for which our Constitution is supended, because of the urgent and emergency situation in the country. This is quite distinct and different from statements about the seriousness of that situation. It is a technical legal matter and our function is to try in as miserly and as careful and as cautious a way as possible to identify precisely what the power is, to ensure that we give only the power that is necessary, not a broad power that may be abused or may be thought to be going to be abused, so that it would undermine substantially the very structures and processes and respect for the law and for the courts system the Minister is concerned to protect and to strengthen at this time.