Seanad Éireann debate -
Wednesday, 15 Sep 1976

Vol. 85 No. 5

Emergency Powers Bill, 1976: Second Stage (Resumed).

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

Ruairí Quinn

This is the first occasion on which I have had an opportunity to address this chamber, and it is rather sad in a way that someone has to speak in this country at this time to a Bill of this kind. It has certainly been for me a baptism of fire and a very sharp reminder that democracy is not something that can be easily taken for granted. It is not something that is ours by right or by some automatic self-continuing process, something that does not need constant vigilance and constant attention.

I am very wary of this package of legislation that has been offered to this House and to this country. I am very wary, not because I do not trust the Government which has come to us to implement it or is seeking these powers, not because I do not trust my own party and the party with whom we are in Government on their bona fide concern with rooting out what they consider to be the causes of the emergency, but because it opens up for us a way of dealing with elements in our society who manifest themselves as being violent which is counter to the whole democratic tradition that many of us have fought long and hard to achieve in the first place.

There is a lot of concern in this country about the implications of this legislation, about the possibility that if it is introduced now it might readily be extended at some date in the future to cover other kinds of subversives. A lot of concern has been expressed directly to me that the people charged with enforcing this legislation, under considerable provocation as we know they have been in the past, will be subject to suspicion and abuse that will do them no credit and will make the task of maintaining democracy in this country all the more difficult. I say these words not lightly and not without care and consideration; but I feel that I am voicing the concern and alarm of a large number of people who by no manner of means could be identified with supporting what have come to be described as the men of violence, either from the Provisional IRA, the UDA or any of the other illegal and undemocratic organisations. The most recent voice that has been added to express criticism rather than withdrawal of support or opposition has come from the Glencree Reconciliation Centre, and the last thing they could ever be described as being is subversive.

Having stated that, I want to go back to the opening speech made by the Leader of the Opposition in this House, Senator Lenihan, in which he queries the whole validity of the Government's attitude in coming to this House, seeking these powers and attempting to squash the idea that there was an emergency in this country, attempting to put forward the idea that the Government had enough powers to deal with such emergency, saying that anyway it was a bit late in the day to be coming back now, and that basically it is a problem of incompetence on the part of the Government and not one of legislation. Senator Lenihan said that, other than Greece, we were the only country seeking derogation from the European Convention on Human Rights on this matter and that our situation was somehow analagous to the Greek situation. I had the opportunity to live in Greece for a year when the Colonels were in power. I had the opportunity to sit on a balcony with someone one night and that person coldly and calmly told me that he never told his wife what his political views were because by doing that he would ensure that they—the Colonels—would never be able to extract it from her. By "extract" I mean the aside that Senator Alexis FitzGerald referred to yesterday of lifting toe-nails and all.

I know Senator Lenihan was making a point by exaggerating it, but it is untrue and damaging to this democracy even to suggest by implication that we have reached by the remotest path that kind of situation. We have a democracy in this country and we will retain it. The question in the future is: can we and have we the courage to defend democracy without giving the ultimate victory to the terrorists by resorting to counter-terrorism? I believe there is an emergency. I believe that that emergency has been here since 1969, that it has exploded and erupted in the Northern part of this country and that it has subsequently had an extraordinary effect upon our domestic politics in the South and indeed on our political parties and our political history in the recent past. Senator Lenihan and the Fianna Fáil Party must be very well aware of this. That emergency effectively destroyed the last Fianna Fáil Administration, disrupting them in mid-stream and contributing in no uncertain way to their ultimate defeat.

I suppose that emergency convinced members of the Labour Party that an alternative Government was necessary in order to provide a democratic alternative in the face of what was then and is now an armed conspiracy against the democratic assemblies of this State by people who insist that they have a mandate from somewhere, from the grave or from some tradition which they claim exclusively to be their own and which they refuse at all times and consistently to have tested at the ballot-box by the people.

The republican tradition is a very fine and honourable one in this country. It does not belong exclusively to any political party, although many have attempted to claim it as their own. It belongs to an attitude of mind and to many people in different political parties and they are represented in all three parties in this House who feel that the problems confronting our society require radical and fundamental solutions. The vast majority of the people who inherit that tradition —and I count myself among them— have at all times validated that tradition by constantly going back to the ballot-box and saying "This is what we want to do; do we have a mandate to do it?" We run the risk of allowing people who describe themselves as republicans and as being in the mainstream of the inheritance of the republican tradition to villify completely and to destroy that tradition so that our children in the future will want to disown what for me is a critical and important part of the history of this country.

I am part of that tradition and proud of it, and in my knowledge I have no recollection of people being knee-capped as part of the republican tradition. I am not aware that assassinations and murders of innocent workers who happen to be in the way is part of that republican tradition. I am not aware of tarring and feathering, of constant refusals to go before the public as part of that republican tradition.

It is one of the great tragedies of the current emergency that, in order to distance ourselves from the men of violence in the Provisional IRA and in the UDA, but particularly the Provisional IRA, we appear to throw out the baby with the bath water. I would suggest to those people who are keen on analysing history in that fashion that such a tendency denies a part of our history which is rooted in democracy and which has brought to this chamber a constant tradition of democratic radicalism without which this State would be very much the poorer.

On the Second Stage I do not propose to discuss in detail the provisions of this Emergency Powers Bill, with which I am very unhappy. I know the Minister himself has received deputations and has heard arguments regarding these provisions. I would propose at that stage to make explicit the reservations I have, particularly on section 2 (3) which refers to the detention over seven days and the form of access that will be open to people who are so detained.

We should look at the background against which this emergency legislation was brought in. Senator Lenihan again suggested that it was some kind of political gimmick, that somehow or other this was one way in which the Coalition Government might cover up their actions in other areas by producing this post-summer smokescreen. I do not think a situation which since 1970 has effectively destroyed the Fianna Fáil Party to the extent that we now have two Fianna Fáil parties in the other House——

Mr. Garrett

There are two Labour parties in this House and the other House.

Ruairí Quinn

I might add that this House is much the richer for that duplication.

I would suggest that that emergency not only has had disastrous effects, which are self-evident, for the members of Fianna Fáil but it has had disastrous effects for the people of this State who wish to see the Government of the day, irrespective of their political complexion, exercising their time and energies in resolving or attempting to resolve problems which confront us as a people. The fact that since the present Government have come into office approximately 40 per cent of their Cabinet time, as far as I can assess, has been devoted to issues related to either security or to the North has been one horrible symbol of the victory that terrorism has had over the southern part of the island in that they have forced the elected Executive of a democratic assembly to devote a disproportionate amount of their time in attempting to come up with a range of measures that will ensure that democracy can continue.

My colleague, Senator Robinson, made a very fine speech yesterday. Unfortunately much of this debate tends to be a lawyers' debate and I am not going to even attempt to follow the Senator on it. She argued that the Government had not made an adequate case for the bringing in of these emergency powers from the point of view of law and that the implications in legal terms of these powers were enormous. I would accept generally the Senator's legal analysis of that statement, largely because I trust her judgment, and frankly I am not capable of following the intricacies of the legal argument. However, I put to all the lawyers of this House that the reaction that I have had over the last two weeks from consistently talking to ordinary people has been somewhat as follows: they are uneasy about the implications as they understand them, such as they can read from the newspapers. They trust basically the Government's attempts to do something about the situation and they reluctantly, but consistently, say any measure or any package of measures that might go some way to solving this problem, even without a guarantee of success, is worth a try.

The Minister has said consistently that the major new power in this Bill, the extension of detention from 48 hours to seven days, has been sought by the Garda and that he has reason to believe that he should support this request. It comes back again in this instance to the Minister trusting the judgment of the law enforcement agency and to the Members of this side of the House trusting their own Minister. I am the sort of person who believes a passenger in a car is allowed to give some kind of discretion to a driver when they are driving. I am very much aware of the dangers of back-seat driving, but the journey does not go on interminably. The fact that this Bill is not itself going to go on interminably, that it has to be renewed by order of the Government, allows us to look at these measures for a certain length of time and have them reviewed when appropriate.

The various bodies that have objected in principle to the details of much of this legislation are bodies who, in all of their preambles, have stated that it is the right and the necessity of a democracy to defend itself. Therefore, what we are concerned with here are the details and the implications of the legislation rather than the principle of it. This is my reading of the situation. I would like this House and the Minister to be very clear that what we describe today as subversive is rather clear in many people's minds; it refers to the obvious enemy with the bomb in Grafton Street and Nassau Street; the obvious enemy with the assassin's bullet who is declaredly against this State.

This and the accompanying legislation we will have, presumably in a couple of days time, will remain on the Statute Book possibly long after the time in which, hopefully, the present troubles in the North subside. There are undoubtedly people in this House who feel that anybody who challenges the established order of our society is in some way subversive, and that if they take action by way of demonstration or riot or picket or any other fashion they may be violently subversive. I am very apprehensive that in the next five to ten years the combination of population growth, the continued failure of our mixed economy to provide the level of employment we require for our population, the reality that emigration, as the great safety valve for conservative Ireland has now finally disappeared—all these social pressures are going to create the sort of tensions that in many other societies have produced social violence.

If we have within society people who want to capitulate and to use that social violence for their own ends then we are heading into a situation in the next ten years when we are going to have many situations where people could be described as being subversive because they wanted, for example, to question the basic right to private property in many parts of our society.

As a member of Dublin City Corporation—I think the only member in this House—I am constantly confronted with the reality that the level of physical violence in the streets is rising each year. That has nothing to do with the unfortunate problems in the North. In other cities which are undergoing the kind of change and transition that Dublin is undergoing and that have, somehow or other, progressed longer along that process than Dublin has the level of urban violence and depravity is very high. The ingredients that created that level in those cities are exactly present and mirrored in our own society.

To conclude, the great danger in this kind of response to a problem is that the basic value of democracy in resolving problems and effecting change by discussion, negotiation and compromise, is going to be set aside in what could very well be the greatest monument to the terrorist in that they would divert the whole course of a democratic tradition over to solutions which were themselves repressive, themselves resorting to terror rather than negotiation, resorting to detention, imprisonment and other forms of physical intimidation rather than effective social changes, effective legislation regarding social reform. If this legislation goes through in the way in which it is designed at present without very explicit instructions from the Government regarding the operation of the legislation, without the establishment of an independent complaints commission for the people at large in our society regarding the function of the law enforcement agencies, we run the very serious risk of alienating a substantial section of our people who today are either unemployed, poor, badly housed or uneducated, not because they choose to be so but because this society has consistently and constantly failed to provide them with the basic human rights which are enshrined in the Charter of Human Rights in the United Nations. Not only that, but this society and both Houses of the Oireachtas have consistently refused to implement the kind of radical social legislation that is necessary to effect democratically and peacefully a transition from the rural, poor agricultural society that we were to the mixed urban, rural and industrial society to which we all appear to aspire. There is a gap and a lack of will in both Houses to respond with the democratic tools and implements which we have to create the kind of legislation that we need. If that gap continues and widens and if our response to problems is to batten down the hatches and flood the place with police or whatever, I fear very much for the future of democracy in this country.

Mr. M.D. Higgins

I must say last evening I was encouraged by the tone of the speech of the Leader of this House, Senator Michael J. O'Higgins, in his willingness to draw distinctions between different kinds of criticism and opposition to the two pieces of legislation which have come before us. He drew a distinction between those who criticised because they want no restraint placed on people who are involved in violence, who invoke republican aims for acts of violence, the opposition of those who oppose because they had brought in repressive legislation, and the position of the Fianna Fáil Party. He then had a residual category: the civil libertarians—a term which has been affording Senator Alexis FitzGerald great amusement for at least a fortnight. Above all else, Senator FitzGerald is a man who is consistent, as we must acknowledge, so the term will probably amuse him in the future. In his treatment of the civil libertarian category Senator O'Higgins was extremely fair and sensitive. He allowed that there was indeed a basis for feeling concerned about the legislation which was positively different from the other kind of criticism.

Having said that, it is one of the disquieting things about the debate so far, particularly when people see the force of the civil liberties argument, that people are willing to concede its essential logic at one stage in their remarks and then proceed to disregard it altogether in another part. Let me put this rather bluntly. Civil rights in the latter part of Senator O'Higgins's remarks were regarded as something abstract—I will give his exact words in a moment—and legislation, on the other hand, was presented as something practical. We were told that we are not living in a Utopia; that we are living in a real world of crime and violence, in a world in which we cannot be seen to be soft on issues of violence themselves which threaten democracy.

The general assertion therefore is that the civil liberties argument concerning this legislation is somehow weak. It is rather like saying that we are similar to those harmless old ladies who were just knitting socks and were not really part of the war effort. We are vaguely concerned people. The civil libertarians cannot be opposed because they have logic on their side. We must listen to them because it looks bad if we batter them because they are innocent, harmless people. Indeed, one person suggested, that, God help him, Senator Noel Browne had never harmed a fly. That is just not good enough.

The argument that is being presented by people who have been associated with civil liberties in this House so far has not been some kind of vague, fuddy-duddy argument. It is an argument that has been presented on clearcut logic and it is an argument that is being presented because we feel there are principles involved. Unfortunately, it is because people relapse into this kind of condescending treatment of the civil liberties case that it becomes necessary to return, very often, to the very principle upon which that case is based.

I would begin by reminding the House of the point which I made two weeks ago. Civil liberty is not a luxury. Civil liberty is not a residual kind of feeling that exists in a population, a feeling that it is some kind of fantasy recreation to be visited on occasion. Civil liberty, if one believes in a certain theory of the State, is the stuff of democracy itself. It allows the State to develop, to change and to operate within a system of guarantee and fairness. There are very concrete and urgent questions which derive immediately from this and to which answers must be given. I reiterate one of them which I made two weeks ago. What are the implications for a democracy when constitutional guarantees are replaced by ministerial intention?

Now unfortunately I have to disagree here with what my colleague Senator Ruairí Quinn, in a fine speech, has said. I do not think it is as simple as that you trust the Government of the day or simply that you are unwilling to accept Ministerial good intentions, or that by showing concern for guarantees you suggest that the Ministers are inadequate to fill their particular offices. The crunch question is: how valid is a ministerial good intention as a substitute for a constitutional guarantee? In the history of law, that is a very important transition, and it is quite ridiculous to try to ignore the implications of it. Here I want to remind this House that we have been given advice in making this kind of assessment.

So far I have been saying the principle of balance is involved. In what circumstances can we suspend an aspect of individual guarantee in the Constitution and replace it by ministerial intention? It is suggested that you can trust the Minister of the day, you can trust past experience, it can never be abused and so. I have been saying that intention itself is not an adequate substitute for guarantee. I now say something else as well, something I have said before, that present circumstances offer evidence—the many people killed, the many people injured. People will say that all of this justifies taking a short-term measure coming down heavily thereby on the side of the suggestion that you can have a ministerial discretion and that you can have law that will deal with situations at the present time.

In the other House the Parliamentary Secretary to the Taoiseach, Deputy John Kelly, had this to say, at column 337, Volume 292 of the Official Report for 2nd September, 1976, and it is an instructive passage coming from a distinguished jurist:

History will not be too sophisticated in sorting out people in the way they behave in this crisis and historians will not be too careful in reading politicians' histories, as to whether they had good reason for this sentence or that sentence. They will be looking for the large lines of history, to see who in this moment of crisis stood up to violence, who condemned violence unreservedly, who threw his moral weight, whether heavy or light, into the balance against it, who tried to bring his constituency organisation with him in facing up to it and condemning it and in never temporising with it or making excuses for it; and who did not. That is what history will be interested in.

That version of history is a kind of a cross between history written in the time of Carlyle and the cowboy comic. It is the notion that anybody who has managed to persuade anybody else that violence condemned in any way under any fashion by any number of people will be what will interest people. There is a very good line in his speech. At column 338 he said: "They will be looking for the large lines of history to see who in this moment of crisis stood up to violence." I would rewrite that sentence and I suggest that people will be looking to the large lines of history and the test will be as to whether the legislative response was over-reaction or whether it was being calm and keeping one's nerve.

To return to some more close terms that have been used in the Bill, one Senator has correctly suggested that many terms are used which should be given more definitions. The Minister in the course of his opening speech said:

This is the only emergency measure considered by the Government to be necessary at present to enable the Garda to deal more effectively with the problems created by the activities in our society of subversive groups.

Now already we have had quite a discussion as to what constitutes a subversive group. Last evening I think we had a long, perhaps too long, quotation by Senator Noel Browne from the Minister for Justice's speech in St. Anne's. I think that that speech was unfortunate. It saw university organisations, students' organisations, infiltrated by subversive groups and individuals. It was almost a McCarthyite speech, and I know it probably is not a fair selection of the Minister's thoughts but just one of those unfortunate speeches that are quoted. I do not want to dwell too much on it, but it highlighted the arbitrary nature of his definition of the word "subversion". To someone like myself, who has for all his political life attacked the private enterprise system and the related institutional arrangements that prop it up, for example, the way the notion of profit is inculcated in children, is that subversion? If I write on the many ethical and social advantages of having a socialist society, is this not to subvert the minds of people in a different way of life?

This legislation is felt by the Government to be necessary at present to enable the Garda to deal more effectively with the problem created by the activities in our society of subversive groups. Even if one agreed that the word was a useful one, which it is not, who in fact is to give it content? Again here there are many social implications: those from middle-class backgrounds often see a mixed school as a major threat to their life style. Again, people who believe in right-wing Catholic orthodoxy think that they can best advance Christianity by having schools which are separate from Protestant schools. Then we come to the class differences. It may be a particular class content who makes this definition of subversion and this will be shown in the definition itself. It is a bad term and it is a bad term to use in law. I offer this opinion as a non-lawyer, but my opinion is that it is a bad term.

Another word which has been used loosely again and again in the debate in this House and in the other House has been the word "order". What is order? Take, for example, the latter day Chinese development around the time of the Cultural Revolution. The orderly development of Chinese political consciousness just after the Cultural Revolution would be that groups would never crystallise so that social change would never take place or that a leadership group could never become so harmed so as not to be amenable to change. In other words, the notion of there being a continual dynamic was their version of order. But if we mean by "order" the protection, willy-nilly, in any form of institutions which are regarded as being immune to criticism and which are wrongly but carefully and systematically imagined as serving the majority when in fact they serve an élite, then no social change can take place in society.

Or is it that we are going to have the notion that extended good works will replace adequate social change and social criticisms and political reflection of that social change? We will be told there are plenty of things to do, visiting the old, visiting the young. The way we are going, if you will excuse my being amused by it, there will be so many of the young with a lot of time on their hands that they will be indeed able to visit the old with greater frequency, which may be a good thing. The notion here, then, is that "order" is a word which is used in a very restricted sense.

To turn to the Bill in detail. It is acknowledged that most of all the issue raised in this legislation, this very short document which comes before us, is section 2. Most Senators have confined themselves to discussing the implications of section 2 (3) which deals with detention for seven days. One need not be a lawyer to make a judgment on this. I think that Senator Mary Robinson raised a question which is not only important legally but also socially and politically: what is the purpose of this detention for seven days? Is it to remove people from circulation and, if it is, she dealt then with its test for adequacy for that purpose. Or is it in fact to find out something else, to enable the police to investigate in a particular way? Then this raises other questions. My own view is one that goes beyond this necessary legal distinction, and it is a question I think that must be answered in the reply as to what will be happening during these seven days. I think that in practice— and after all here in this House we have to deal with the totality of our experience, not only what is legally possible—it would be extremely difficult to ever monitor a detention so as to ensure that it would either cleave with one definition or with another definition of purpose. It would be practically impossible. Therefore I must react to the period of seven days or rather the increase of five days in the light of what it is, the extension of the period of time in which a person can be held.

In making one's assessment a number of considerations immediately arise to mind. If one was to say there are people who are perhaps directly involved in committing acts of heinous murder, dreadful crimes, people who have fired shots and people who are involved in kidnapping and so on and that by keeping them out of circulation one could prevent these acts, one could say that some kind of a case had been made. But in the absence of one being able to conclusively show this, what one must do is take this legislative action in Ireland and set it against actions that are taking place elsewhere. One must say to oneself where has seven days detention been applied before in the free world, under what circumstances, and what has happened in general during those periods? We may feel a great concern, but if we feel concern we should show an adequate legislative response to the number of people killed and the number of people injured. But it is necessary, too, that we take a cognisance of the reports that have been published which show an abuse of periods of detention, and it is unfortunate that we are considering this extension precisely at a time when there is a growing volume of evidence in the world about the abuse of persons and the abuse of freedom while persons have been held in detention.

To return to a point that I mentioned at the outset, people will suggest this is all very fine but this is to deal with what the Leader of this House referred to last evening as "academic niceties." He said people who indulge in "academic niceties" deal with violence with, and I quote him, "cottonwool softness." With respect what I am suggesting is this— precisely in the same way that Senator Ruairí Quinn saw it—that to react with over-repressive measures, to indulge in counter-terrorist activities, is in fact to give a present to the terrorists themselves. I am suggesting that the effect of suspending or circumscribing civil liberties in any way is wrong. We are not willing to be stampeded into eroding what are our essential liberties because we are being threatened, and I want to promise the Minister here that when it comes to murder, when it comes to robbery, when it comes to intimidation—and in my speech on the emergency motion I went much farther and said when it comes to spreading fear—any Government and any Minister who come into the House will have my unconditional and full support. However, I am speaking as someone who is concerned purely from the point of view of freedom. At the present time we are creating an atmosphere which will play into the hands of the very people who are committing these acts of violence.

People have been speaking of public opinion. Some Senators say that public opinion is with them; others say that public opinion is with someone else. As someone who has been involved in carrying out polls professionally I would never accept the result of a poll. I do not believe in them. From the people who have been talking to me about this legislation, and before that from general conversations I had with members of the public, my impression was that there is a great disgust in this part of the country for the Provisional IRA and for their action. I think that there is a disgust for them in Northern Ireland. It is true that it is difficult to change people's attitudes to change, over the age of 40 or 50 let us say, and there are people who will support these people, these murderers, in any circumstances. But I think that there was a growing popular opinion against them. But by showing your anxiety to circumscribe civil liberties, you are giving them an opportunity to incur some sympathy from the public, however indirect and however vague. As well as that the arguments that have been made from genuine civil libertarians are being fired willy-nilly into the Provisional camp and this is unfortunate.

Senator Browne last night made a comment which I think is quite valuable. It is something that we discussed at some length in the debate on the motion and need not concern us here, but it arises in the next legislation in extense and it arises to a lesser extent here. He asked the question: looked at historically what has been the positive response of legislation which might be in the category of repressive legislation, what has been its result? He asked what had been the result in the '20s and '30s and '40s and '50s and now in the '70s? What effect has this kind of legislation had in practical terms? If you heap repression on repression on repression on repression, what will you achieve? He made a suggestion in reply to that rhetorical question. He suggested that the roots of the problem may in fact lie in the guilt with which all of us carry.

I think we carry a very great guilt in not having been more critical about the influences that have shaped us in our experience, through educational forms and through other social forms —in being willing, for example, to put up with intolerable social and economic conditions in this part of the island. I think this just answers the question which I might pose: is there any such thing as a legislative measure which can deal with the fear and the terror and the threats that exist in this island at the present time? The straight answer to it is that there is no legislative response. The only legislative response that would adequately root out fear and intimidation and terror all over this island would be primarily an invitation to a positive philosophy of life with the related practical—eminently practical because it deals with life—philosophy that would deal with social and economic relationships from a communal rather than from an individual perspective; and to have an educational system which taught those values.

You might say: does this not interfere with freedom in some way? I will come back to the principle of balance again. If we are asked to strike a balance as to whether or not we will ever interfere through the spirit of our legislation with individual liberties the answer is not simple. Is it not a real argument that, when we come to take the longer view, maybe we should interfere with economic liberties so as to ensure the economic and social survival and development of the community as opposed to individuals or an élite. I will be honest to this House about that. That is a time when I will willingly indulge in a debate as to what is an appropriate balance, and I hope we will have to do it sooner rather than later.

The next Bill is one which raises more questions concerning the social background to the commission of acts of violence themselves. This brings us to a valid point raised by Senators Owens, Robinson and Browne: the threat posed to those workers who are not protected under the Trade Disputes Act, 1906. By the placing of a picket, the people not protected under this Act could find themselves in some danger.

It was Senator Robinson who suggested—I am not quoting her— that the trade unionists should be adamant in trying to ensure that section 7 of the Conspiracy and Protection of Property Act, 1875, was removed from the Schedule which enabled members to be so placed under threat in so far as they had not got the protection of the 1906 Act. I agree wholeheartedly with the Senator here. Indeed I share her wonderment that the trade union movement did not react in 1972 when this section was included. I mentioned in my speech two weeks ago two aspects—I will refer to them for short term purposes as the two Gardiner aspects—of this kind of legislation. In his criticism of this type of legislation Lord Gardiner suggested that there were two tests by which we could assess such legislation. First of all, how sensitive is it in its scope. Senator Robinson has dealt with this in some detail. The second criterion he had was that of duration. Obviously that point has been made again and again as to when these measures will lapse. There is a refrain going through this debate which is insistent. It is the more interesting in that it is coming from some of the more distinguished Senators.

Here I return to Senator Alexis FitzGerald who referred at the outset of his speech yesterday to the timidity of western governments in standing up for democracy. The Senator suggested western governments were becoming timid; the general idea was that you would wake up one day and democracy would be gone. This relates to part of the argument I was making some weeks ago concerning the liberal position. It was always an old flaw in liberal political philosophy that at the end of the day the liberals would take the most repressive measures to defend what they called liberalism. Thus in every democracy where constitutions have been suspended, it has always been invoked in the name of the common good. People have said: "We need to suspend the Constitution and individual liberties because the common good requires it at this time". We have always been told that the Constitution would come back. It has happened in every State in Latin America where this type of activity has taken place.

Ruairí Quinn

It has happened in Europe.

Mr. M.D. Higgins

Yes, but it is the crucial dilemma of the liberal position. I have never been a liberal; I am a socialist. My view on human and civil rights is quite definitely developed within a socialist perspective and not within the liberal perspective at all, one that has so many very bad flaws that I do not think one could hold to it. This is what is happening at the present time. People are criticising the timidity of western governments in standing up for democracy and asking for repression to bolster democracy—a great error.

The obverse of timidity is temerity, and that is a very interesting word. Who will be timorous in standing up and defending democracy? For example, if people said that you had not a real democracy that what you had was a phoney democracy, then you would have armies of the timid representing different versions and armies of the timorous going around suggesting that they would push it down everybody else's neck. With the greatest respect, I say it is a dangerous notion. It is interesting that it is developed by those who have often left a particular political regime without subjecting it to adequate historical or economic analysis. This, in fact, shows very heavily the influence of Solzhenitsyn or, more particularly, Solzhenitsyn's more popular commentators, being as they are people who are not too interested in the historical development of the monster of the modern Russian State, who are more interested in description and emotional reductionism. More of that again.

I was fascinated by the arguments concerning habeas corpus yesterday evening, particularly the rather unusual version of this argument presented by Senator Brian Lenihan and the later thinking of Senator Mary Robinson. Some of the provisions of Article 40 were seen as being limited by the proposal to invoke Article 28 to suspend the Constitution. This is undeniable, in my opinion. However, it raises a question to which I should like us to address ourselves on another occasion, as to how one can take one Article of this Constitution and set it up as prior to or as more important than another Article. I have always had the opinion that those Articles in the Constitution which dealt with individual guarantees—we have spoken about liberties and certainty in the law—had a greater status than the other provisions of the Constitution which were rather more loosely worded and which were social-aspirational in character.

Similarly one could even draw a further distinction and say that within the category of guarantees, those Articles which spoke about guaranteeing individual freedom and due process as such, were prior also to administrative Articles, Articles which indicated how the State might administer its different agencies. It is very important that the spirit of Article 40 be retained. That spirit is affected by the invocation of Article 28 in a particular way. Again I fid that very disturbing.

I want to refer once again to what I think is the most unfortunate provision in this Bill, section 2 (3):

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 a member 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.

I have said that the taking of powers in general and particularly this power must be judged against a longer historical period. It will be judged as over-reaction. I have said that it must be judged in a wider context, one in which we have had more and more evidence of periods of detention being abused, people suffering physical abuse, also the different guarantees which have been made for people in such custody having been ignored.

I am not attacking the Garda Síochána. In university communities people teach. There may be one or two bad teachers but the majority of the people who teach may work well. In any community of workers there is always a small minority of people who are attracted to the work because of the type of personality they have or who develop a personality attitude because of the work itself. The public needs to be protected from excessive power being placed in the hands of such people.

The placing of a person in uncertainty for such a long period in the atmosphere in which we live at present, with all the techniques of interrogation developed to their present level, is unsatisfactory, given that at a time when we are told it is unsatisfactory people do have recourse in law when anything happens to them. This is not an adequate substitution. From the outset there should be a clear code available as to what could be done. This business of removing people from society for seven days is unsatisfactory.

We are all appalled at the crime of kidnapping. It has been suggested that the penalty for such a crime should be life imprisonment. How can one have such a horror of kidnapping and at the same time accept it as a necessary procedure that a person be detained for seven days? In the event of a person being wrongly detained, he is removed and his destination is unsure. I think we could have managed without this and I think it unnecessary.

What appears peripheral and tedious is often what is true. Senator Robinson in a speech two weeks ago said that the battle was for the minds and hearts and wills of people. Last night she suggested that it was of crucial importance for us that we secure the allegiance of the young citizen. I would go a little further and say that, far from being seen to meet force with force in an atmosphere of over-reaction and giving the impression of insecurity, we should be developing a deeper analysis of our society so that we could turn the existing economic and social crisis into a benefit. It is an immensely exciting task for people who are young in politics to see that all the old economic order is falling apart, that new social forms are now not only necessary but inevitable.

A distinguished Front Bench Senator has suggested that it is no longer a matter for argument as to whether socialism will happen; it is only a matter of when. How much more exciting it would be to subject all the sources of institutional repression and all the sources of institutional violence, including those who have created the gunmen of the IRA, to systematic examination and to develop an alternative conception of life and institutions in this country. Positive politics could be offered, politics in which the community would be stressed rather than the individual. That would attract the allegiance of the young citizen. But we are faced with this: given that that does not take place, what will happen? The population is increasing. In the 1980s there will be more young people, particularly in our cities. What are the choices facing people in the industrial sector? It is my opinion that they will react more and more and they will put pressure on the unemployed.

An alternative response, which is a socialist response, is that in joint action with the State we would move towards a socialising of the economy and make impossible all of the social horrors that are likely to happen. If this was to take place everybody would realise the monstrous thing it is to take the life of somebody and by such an action to impede the new social and economic progress which this State is all about.

But to ask for this legislation— not having turned one's face towards a new economic and social order— leaves one with a real fear that, in the reaction to sustain the old bankrupt economic and social order, these pieces of legislation will remain to be used at the end of the day. They are a threat in the short-term to people not protected by the 1906 Act, but they are more fundamentally and generally a threat to people who form the vulnerable working class seeking to build an alternative society.

Dr. West

I have been very impressed by the two last speakers, Senator Quinn and Senator M.D. Higgins. I agree with a great deal of what they have said and feel that I will not have to spend too much time going over the ground again. Senator Higgins said he was not a liberal and spent a lot of time explaining what a liberal is. He said he is a socialist but he gave us little idea of what he meant by that. Perhaps he could develop this theme at length next week, because in my mind the terms, socialist, liberal, conservative and so on, become more and more meaningless as they are applied in such wide-ranging fashions.

One has only to look at the many countries that call themselves socialist and practise repression on a great and grand scale. Their system is based on repression. That is not to disagree with Senator Higgins's point that there are many countries that call themselves liberal countries or democracies in which repression is also practised on a grand scale. Perhaps the next time he uses the term socialist he could tell the House what he means by socialist and tell us what his philosophy is. The terms are so wide-ranging now that they mean different things to different people.

Mr. M.D. Higgins

I will be very glad to explain to the Senator.

Dr. West

Perhaps we may be recalled on a day on which there is no other business and Senator Higgins can have the floor. It is a pity he did not get an opportunity last week to philosophise.

My feelings about this Bill are very much those I expressed on the emergency powers motion which was discussed some time ago. These feelings have been put very cogently by a number of other Senators. I am firmly in favour of any measures which are clearly seen to deal with the situation in which we have an increasing number of bank raids, hold-ups, hijacks, post-office robberies, gunmen wandering around taking large sums of money from business people, payroll robberies and so on. I find it hard to see how the measures that we are discussing will lead to larger numbers of these criminals being caught and put behind bars, where they certainly belong.

Although many people are coming before the Special Criminal Court quite a number of them appear to be on charges of membership of illegal organisations. I should like to see a higher detection rate of crimes such as bank robberies, payroll robberies and so on. Our detection rate is low but I hope it will improve so that we can deal with these offenders. I would have preferred to see more positive measures aimed at strengthening the hands of the Garda, giving them better technical facilities, voting funds for the improvement of detection, rather than the measures we are discussing, which are rather negative. It is said that they may serve to scare off people who are contemplating committing such crimes but one wonders if they will, I find it hard to believe.

The Minister for Justice made a point in the debate on the emergency motion and it was the only point which meant anything to me in deciding how I would vote on this package of legislation. The point was that in the course of the investigations by the Garda when they took people in for questioning for 48 hours and then released them, these people —whom they strongly suspected— went around the country intimidating possible witnesses and those associated with the crimes which had been committed. The Minister said that by increasing the period to seven days it would take these suspects out of circulation and would allow the Garda to go about their investigations unhampered. That point is fair enough if the Minister had backed it up with some further evidence but the blanket reason of security was invoked for not giving more detail. That is very unsatisfactory because it amounts to a situation in which the House is asked to support these measures without any concrete justification. After all, we are here to make decisions and we can only make decisions of this kind basing them on the facts available; if the facts are not available then it is extremely difficult to accept the good faith of the best-intentioned Ministers in Government.

There are two aspects of this legislation which one must consider. First, there is the actual form of the legislation and, secondly, there is the manner in which the legislation will be applied. Many of the Government arguments have centred on the operation of the legislation. The arguments have been put forward that the legislation will not be abused and the Government can be trusted to use the legislation in a reasonable way; because of the respect one has for the Minister for Justice and for the Government as a whole, one can trust that there will not be widespread abuses of the legislation. As a legislator, one should not be thinking on this at all but purely on the first point, that is, the legislation before the House. We should consider that in a legal manner and should not be asked to make acts of faith which imply that we must trust the Government of the day in the way in which they operate legislation.

I trust the Minister for Justice, he is a person for whom I have considerable respect and he is a man of honour. He is operating in very difficult circumstances but I believe he will ensure that abuses are kept to a minimum. I would say that the same could be said of his predecessor and that abuses were kept to a minimum. But this is not the way in which we should consider the legislation because there is no guarantee that a Minister of this calibre will be in office for very long or that a Government, such as the present Government, would be in office for very long. One must consider the worst possible situation in which there might be a shift in political balance resulting in people with considerably less scruples coming into power and being able to abuse this legislation. One hopes that this will not occur.

The legislation is open to abuse and therefore it was heartening to see, in the other House last night, that an Opposition amendment which would tighten up the provisions for the rights of the individuals involved was accepted by the Government. It was not actually an amendment which tightened up the rights of the individual, it was one which more expressly defined the term "incitement". It defined it more clearly and therefore restricted possible abuses.

I have had two clear reactions from my constituents on this legislation. On the one hand, people want measures taken to deal with the criminal violence which these Bills are designed to restrict and on the other, there is the real fear—it is not just confined to the so-called civil liberties group but to a wider group of people—that legislation such as this can be counterproductive. If it is abused, it will play into the hands of the subversives.

I suggest to the Minister that when this legislation is on the statute book and when the Government are implementing it, if there is widespread abuse of the legislation, it would be made into an issue on which the Government of the day would be brought down. There are sufficient people in the Government benches who feel strongly enough about this legislation that, if there were widespread abuse, they would be quite happy to vote with the Opposition on that issue, thereby bringing the Government down and forcing a general election. That is an important point and the Government must face up to it. It is one of the things which one hopes will safeguard the manner in which the legislation is operated. These have been the two reactions, on the one hand the very strong desire that something should be done about robbers, hijackers, kidnappers, but that it should be done fairly, and on the other hand, the feeling that this legislation is not really going to do this, that it is a legislative reaction by a government to the fact that, in crude terms, the IRA have been making a monkey out of the security forces and, therefore, of the Government, in their various operations and that the over-reaction will play into the hands of the subversives. There is a balance. I find myself somewhere in between these two feelings which have been expressed to me, these opposing feelings, by my constituents. I want to see these crimes being dealt with and the criminals brought to justice. I am not at all sure that the measures which we are discussing are going to do this.

I would urge the Minister to give us some more concrete information upon which we can make a judgment, a little more than say, a couple of lines which say that if we take these people out of circulation then the Garda will be able to make successful investigations into many of these crimes. That is much too bland a statement and we really want something more from the Minister in his summary upon which we can make a judgment. As an Independent who does not have any party axe to grind I am going to support the legislation if it is good, fair and just and is going to be successful. I will not support this legislation if I do not believe this is so.

I end up appealing to the Minister, as I did on the emergency motion, to give us some more information, perhaps some facts and figures about this. I would certainly like to have some figures on the present detection rate for crimes of violence which have been committed—my feeling is that they are low but I would like to have the actual figures over the past number of years—and to give us something on which we can make a rational and unemotional judgment of this very difficult and critical issue.

Mr. Connolly

I indicated in talking on the motion on a national emergency that we in the Labour Party would reserve the right to ask for certain assurances on this measure. I desire now to bring to the Minister's notice very briefly just one of these assurances that would, in my opinion and in the opinion of Members of the House, expedite very much and make easier the passage of the Bill through the House.

This refers to section 2 and the extended time that the Garda have under this for their powers of detention. This section, as we all know, has excited certain fears among members of the community and more particularly I should stress that it has excited fears among trade union officials. It has disturbed many of them and it has disturbed many of us to think that the Garda should have these powers. Generally speaking we may have objection to it from the point of view of civil rights, but more particularly we are concerned that some gardaí who are not properly trained or who may have an individual predilection for overstepping their duties—because there are such gardaí—may interfere with the lawful activity of trade union officials in the pursuit of their business. This is a matter that causes serious concern to many of us.

It may happen that many gardaí are not sufficiently familiar with trade union activities to be able to distinguish between activities, strikes and unofficial strikes and other activities, and some of them may find it difficult to distinguish between subversive activities, on the one hand, and trade union activities, on the other hand, such as wildcat strikes. On the other hand, they may concern the unemployed.

In the situation which we have at present where the unemployed are at the highest level ever in the history of the State, when the economic position is very serious, members of the unemployed will—as they have in the past—tend to congregate and organise themselves together. The unemployed organisation will take part in marches and demonstrations and no doubt these will attract the attention of the Garda and rightly so. We want the Minister, and I am sure he will find it no great difficulty in this, to assure the House that every possible measure will be taken to see that the Garda do not overstep their duties, that they will permit these demonstrations and these organisations of the unemployed to protest against economic measures that assail them and the consequences thereof, to protest against governmental measures or measures which they think stem from the Government, and that the unemployed should have full civic rights in order to protest and in every way to bring to the notice of the public their rights and their difficulties at present.

I would earnestly ask the Minister to give an assurance to the House that there will be no interference with the lawful—and I stress lawful—activities of trade union officials and with the lawful activities of any of those who organise and lead the unemployed for a just presentation of their rights.

Mr. O'Toole

I would like to welcome this Bill and in doing so it must also be said it is regrettable that such a Bill has to be produced at this time. This kind of introduction might sound contradictory, but I will try to explain in a few words what I mean.

To me the first and primary duty of any Government is the protection of the citizens and this protective umbrella, if it is to succeed, must include the protection of life, of property and indeed of our democratic systems and institutions, which were put there not by this Government but by the people for their own protection. Any threat to these institutions or any attack on them must be vehemently repulsed and I assume that this principle is accepted by all Members of this House and indeed of both Houses of the Oireachtas.

There is an idea abroad, no doubt created to some extent by the attitude adopted by the Opposition, that there is something wrong or evil, or something which is totally unacceptable about this legislation. In introducing the Emergency Powers Bill the Minister is simply invoking a section of the Constitution which was put there to deal with the type of situation which now confronts the Government and every person in this country.

Article 28.3 is being used by the Government. It is not being abused as some people would have us believe. The Government have a clear obligation to take what most people regard as appropriate action as they see fit, if they consider that the prevailing circumstances warrant that action. As in the past, and I suppose the situation will always be with us, we have small but vociferous sections in the community who are asking that the Government should show reason for the introduction of this legislation and why it should be necessary now. The Opposition have repeatedly demanded that positive action be taken to alleviate hardship and to allay fears brought about by the barbaric violence being perpetrated by individuals and by subversive organisations. To me this Bill is positive action. The circumstances necessitating its introduction are to be regretted. I am sure the Minister and the Government would much prefer to be dealing with other legislation in this House at this very moment. However, the Government have faced up to their responsibilities in this case. I am quite sure from my contact with the people that they are quite happy that the right course has been taken and that the Government are living up to their responsibilities in this matter.

This is not to say that people are not concerned. People are concerned; we are all concerned that such legislation is necessary but we must ask ourselves which is the lesser of two evils: to allow a situation to prevail and persist where literally nobody is safe, where subversives, through their organisations or individually, are prepared to go to any lengths to tear down the democratic Government and the democratic institutions of our country. To me the answer is very simple. We should face those people head on and use all the resources at our disposal, resources put there by the people to handle this type of situation. The concern shown by many people is what one might expect. To me it is a very healthy sign because, as we know, no matter what Government are in power, people must be always vigilant. they must always guard jealously their hard-won liberties and freedom. This is what the people are doing at present. They are probing, they are asking questions and they are getting answers and I think this is the important thing.

Having expressed that concern, which is their right and obligation, they should also accept the logical answers given by the Minister. In giving answers in this sphere of security we all appreciate the delicacy of the situation. Much of the information sought by people cannot be given because of its security nature. It is not like giving figures for unemployment or housing. We are dealing with a situation in which all information cannot be given for security purposes. The Minister—and indeed the Leader of the Opposition—did state in the Dáil that he had no qualms about allowing this Government invoke Article 28.3 but—and he was quite right in saying so—there are circumstances in which some Government might in the future, having this power, misuse or abuse it. However, in the Bill itself, both in the Title and in the body of the Bill, there is written in a date which is a very definte safeguard for the termination of the special power.

The abuses in the implementation of the powers which this Bill gives can be over-emphasised. The result of this over-emphasis could lead, by implication at least, to a loss of trust and confidence in our Garda and Army. It can be said now that since the foundation of this State no finger of suspicion could be pointed at either the Garda or the Army. They are forces of which we can be justly proud. They are our own people and they are able and willing to do the work as directed. Any suspicion which might, by implication, cast a doubt on these people is very dangerous. These people are human beings. They can make mistakes but their past record will indicate that we can have full confidence in their activities in future under this legislation.

The Opposition have stated that there was no necessity for this repressive legislation. The Opposition, when they were in Government—and the situation at that time was not as serious as it is now—issued a statement that they would introduce internment if threats made by subversive organisations of the day were to be carried out. We all recall threats made on members of the present Government and on Members of this House. The reaction of that Government was that internment would be introduced if these threats were put into action by subversives. That was the reaction of a Government whose members come in here and say that the situation as we see it now does not warrant this type of legislation which is a far cry from internment.

Many people are showing concern about the umbrella effect of this legislation in that it might eventually suppress the activities of legitimate trade unions and their members. This has been stated in the context of unemployment which is very high at present. To me-and to many people who have talked to me about this-it seems that if we are to alleviate the hardship caused by unemployment, if we are to create employment, the first thing we must do is to preserve the security, the laws and the institutions of this State. We are dependent to a great extent on outside capital. In order to entice these people to set up factories and so on in our country we must have stability of Government, security, liberty and freedom and the right of people to express themselves as they wish. That is what this Bill—and, indeed, the Criminal Law Bill—is about. It is trying to ensure that the so-called liberty sought through the barrel of a gun by subversive organisations and individuals is suppressed.

It is a question of priority. It is a question of which comes first the hen or the egg—stability of Government and institutions or employment. The Government have acted rightly in seeing that the security of this country comes before anything else.

Mr. Horgan

Much has been said during the ongoing debate in this House and in the other House about the spectacle of persons wrestling with their consciences, especially people in the party to which I belong. I feel impelled to say a couple of things about this. The first and most obvious thing that must be said about it is that Parliament in general, and political parties in general, would be very much the poorer if people did not wrestle with their consciences from time to time. The accusation comes very oddly from people who make it as if they had never wrestled with their own consciences.

I am quite sure that one of the people who might be anxious and ready to agree with this would be the Minister for Posts and Telegraphs who, in a recent interview on RTE, was being questioned about the necessary compromises involved in joining a political party. He quoted on that occasion, with some approbation, the statement of the French philosopher, Simone Viel, to the effect that every statement beginning with "we" is a lie. All of us who are members of political parties experience this tension on a more or less permanent basis. Those of us who have left the heady atmosphere of independence for the stricter disciplines of a political party probably experience it even more so.

I remember Peadar O'Donnell once saying about his own political views that he always knew there was one political party in Ireland he belonged to, even though he could never find any other member of it except himself. Even at that, he said, opinion within the party was not always unanimous. This is, by and large, the position of the Independent; it is not the position of a person who is a member of a political party. For people who are members of political parties, these problems—to call them problems of conscience is, I think, to overstate the case—arise quite frequently and I think the country would be poorer if they did not arise. Having said that, it is also in order to draw attention to the other aspect of the problems of conscience, that is, that the actions to which they give rise have their own consequences, whether inside the party to which one belongs or electorally, or, indeed, in terms of public opinion. So, exercising one's conscience or one's political judgment —it may be no more than that—is something which has consequences which one may not be able to predict and with which one simply has to live. It is not a sort of luxury the critics would often suppose it to be.

Senator Alexis FitzGerald went into considerable detail to indicate areas of misunderstanding that he thought affected the Bill. He went at some length into what the Bill did not contain. In so far as his exercise was a clarifying one, it was very useful for this House and, I hope, for the public as well. I should like to follow him down that road a little bit because a number of accusations have been made about this Bill that I would like to reject while, at the same time not modifying my own disquiet about it.

First, it is often said that this Bill is being brought in by the Government as a sort of smokescreen to divert attention from the serious problems affecting the economy. Senator O'Toole has already referred to that argument and, indeed, I would endorse much of what he said. I do not believe that the Ministers, the Cabinet and the Government who have brought in this legislation intend it as any such thing. I do not believe that they intend it as a smokescreen, as a diversionary tactic from the economy. For one thing, I am quite sure that the time they have spent preparing, drafting and defending this legislation would, in their own estimation, have been far better spent if devoted to the problems of the economy and the need for economic planning. Secondly, there is the crucial fact that if we do not have any security we can throw our hats at the economy as well.

The second accusation that is often made—and this is a rather more personal one—is that this legislation is an exercise in hypocrisy by people who said other things in 1971, 1972 and so on. I do not accept that. I accept the bona fides of the people who have introduced this legislation just as I would trust, and I believe I know, that they accept mine.

The third thing that is sometimes said is that this legislation is a general election gimmick, that the Taoiseach is only waiting for an opportunity to go to the country on a law and order ticket and take advantage of the very palpable anti-IRA sentiment in the country to come back with a hugely increased majority. I do not believe this is the case. I do not believe that the Taoiseach would be that irresponsible nor do I believe that the members of my own party, who see in this legislation a particular lever they would like to use to break the National Coalition Government, are in any way insensitive to the very deep political issues involved. Anybody with two eyes in his head will recognise that for the Labour Party, to break any Government at this time on this issue would not only be political suicide for that party but would be grossly irresponsible in view of the total circumstances, economic as well as political, in which we find ourselves.

Having said all that, I must criticise the Bill on a number of grounds. Perhaps one of the main grounds on which I should like to criticise it is a political ground and not one which can be readily met by amendment or improvement. This Bill represents something of a lost opportunity, especially in so far as the Labour Party is concerned. I do not believe that the Labour Party have ever been a part of Government at a time when a threat of this magnitude was posed to the State and its institutions. I accept that it is a threat of some magnitude and I accept that remedial action was called for, especially in the light of various incidents which have taken place recently.

The Labour Party is traditionally a party which is very properly and rightly concerned with civil liberties, not only in terms of its own socialist tradition but in terms of a justifiable reaction against the very authoritarian society in which so many of us have been brought up. The Labour Party's political tradition is not one which is anarchic. It does not believe, and no sensible political party could believe, in total liberty for everyone all the time. No, the Labour Party's political philosophy, as I understand it is very deliberate. It believes the activities of some should be controlled so that all should be free. It believes that because it finds itself constantly confronting a society in which the activities and very often the welfare of all is controlled, so that a very small and privileged minority might be free. It finds itself in confrontation with a society in which market forces, economic forces, the various explicit or implicit mechanisms of social rejection and acceptance, all operate to ensure the continued existence of a majority of people whose rights are severely circumscribed so that the rights of a privileged minority may thereby be less fettered.

This is why the Labour Party—and I feel I speak for some members of the Labour Party on this—are inherently suspicious of any legislation which purports to control everybody, and this is fundamentally what this legislation does. It is an actual or a potential control on the civil rights of every citizen of this State. It could have been possible for the Government, had they given more thought to this exercise and given perhaps more care in its drafting, to have produced the kind of legislative package which would have won a wider and more whole-hearted acceptance from the Labour Party and the labour movement. I regret very much that this has not been done because it is the loss of a political opportunity. It is not absolutely critical, but sad nevertheless. One of the aspects of the failure to grasp this political opportunity has been the almost complete lack of regret for the necessary infringement of civil liberties this particular legislation entails. Government Ministers and others have been understandably at pains to defend the legislation and to defend the incursion of civil rights which is represents. It would have been quite possible for this defence, spirited though it may be on occasion to have included an expression of the regret which I know is genuine at some levels of Government for the substantial invasion of rights that this legislation involves.

With regard to the contents of the Bill itself, I have a number of points which can be made fairly briefly. The first is that I should like wholeheartedly to endorse the very serious questions and doubts raised by Senator Owens with regard to the positions of trade unions under this legislation. For some years I have been actively pursuing the need to change trade union legislation in order to bring the unions which she describes under the protection of the Trade Disputes Act. It is a great pity that it is only a crisis of this magnitude that has suddenly exposed the need again. I would urge the Government to take very speedy action to remedy what must be one of the most glaring deficiencies in our trade union legislation, which has been exposed by the debate in both Houses on the Bill.

The second point I should like to make on the Bill itself is related to the question of access to persons who are held in detention. Like other Members of this House, I am concerned at the lack of clarity relating to the possibility of access to persons held in custody by legal representatives and by members of their family. I have searched the debates of both Houses and have discovered nothing that gives me any real clarity. We are told time and time again that a person would have the same rights under this legislation as he would have had before it was passed. That is not satisfactory if we do not know what those rights are, if prisoners do not know what they are, if they cannot or will not be told and if the Garda will not and cannot be told how to clear up any ambiguities that may arise.

Nevertheless, I have a slight difficulty with the proposals that have been made to insert specific access provisions into this Bill, for two reasons. The first is that we may be accused of being willing to give greater protection to people who are suspected of terrorist offences than we are to people suspected of ordinary offences. This is an argument which was used very successfully in Britain by the Home Secretary to reject similar amendments to their Prevention of Terrorism Act. The second reason I am unhappy about the proposals is that this Bill is, after all, designed to be, very hopefully, temporary in its existence and its application. It will last for at least a year. We do not quite know how long it will last after that. I would be sorry to see specific provisions for access and so on written into this legislation which would die with it. To my mind the place for specific provisions on access is in the other piece of legislation which is not yet before us.

I would urge on the Minister while that legislation is going through the other House, and the possibility of amending it there exists that he should think in terms of clarifying the access situation in that Bill which would be a permanent part of our law and which would be permanently available to all persons held in custody by the police, whether under this enactment or any other. I do not believe in creating separate categories for persons held in custody. One of the deficiencies of our criminal system for a long time has been this ambiguity about the rights of persons held in custody. I believe we should clear up this ambiguity, not just for people who are suspected of terrorist offences but for all people who are suspected of any offence and who are held in custody by the police for that reason.

The third point I want to make about the Bill relates to the time limit under which it operates and the method of renewing it adopted by the Government. Again, for purely political reasons I could wish that the Government had taken another decision and had decided that the Act would lapse automatically unless it was renewed by an affirmative resolution of the Government in one or both Houses of the Oireachtas. My reason for this should be obvious to people who think of the political consequences of the course of action that has been adopted. At the moment if we pass this Bill as an Act the Government will be able to renew the legislation simply by putting down an order. This order may then be made the subject of a motion in either House of the Oireachtas by one or two, at least by two, people. In other words, if two people in the other House- and it is quite easy to see where they might come from—or two people in this House decide to put down a motion to attempt to annul a Government order made under this Bill, the Government will have to come into this House or to the other House and defend themselves. They will have to adopt a defensive posture in order to keep this Act in operation. It would be far more politically wise for the Government to adopt a more positive attitude, to say that this Bill lapses unless it is renewed by a positive act of the Government such as an affirmative parliamentary order. If the Government come back to us after 12 months—a period of which I would be much in favour, however large my disquiet about the Bill —with a year's successful operation of this Act, a great improvement in the detection rate, no proven complaints of maltreatment at the hands of the police, and, with that record, asked for parliamentary approval for continuation of the Act, they would be very likely to get it and to get it without a great deal of the hassle that has characterised the debate in both these Houses up to now.

This of course is one of the main differences between this legislation and the Prevention of Terrorism Act in Britain. Senator Alexis FitzGerald, who spoke about this at some length, said that the similarities between the two Acts were far more important than their differences. I do not agree. The British Act was first introduced for a period of only six months although it was later renewed for 12 months, and the British Government in their wisdom adopted the mechanism of going to seek positive parliamentary approval for its extension rather than relying on extending it by Government order and fighting maybe a pitched battle in Parliament to defend it.

There is one other dissimilarity between this Bill and the British Act, which Senator Alexis FitzGerald may not have adverted to and which as a lawyer he should be very conscious of, and that is the decision by the Government to make the exercise of the power to detain people for an extra five days an exercise of the Garda Síochána and not of the Minister for Justice. This may seem like a trifling point. If a person is going to be locked up anyway does it matter who signs the order? I contend that it matters very much who signs the order and it matters very much in the constitutional sense and in the sense that it is very important for the democratic institutions we are trying to preserve. We have not, to my knowledge, in this House been given any reason for the decision to put this power in the hands of a Garda superintendent rather than in the hands of a Minister of State. I imagine, for example, that it is not true that the reason this power is given one way rather than the other is simply that Ministers would be afraid of perhaps the personal consequences to themselves if they were to sign such orders. I have confidence in our Ministers' capacity to resist the intimidation which I believe many of them are suffering at the moment.

It might be argued that one of the reasons for giving this power to the Garda rather than the Minister is that it would be more publicly acceptable if exercised by a Garda officer than if exercised by a politician because of a long-standing suspicion in Ireland that when politicians are given powers which they can use selectively there is always the temptation to use such powers selectively. If this were the argument made, and I speak in total ignorance of this, I would be absolutely horrified because when we are talking about defending the democratic institutions of this State it is plain that the democratically elected Government of this State is the institution chiefly concerned. If we are now going to pass into law a Bill which says in effect that we are going to give this power to the Garda because the people would not be happy if it were given to a Minister of the Government we are betraying our own lack of confidence in the elected Government.

I have no hesitation in saying that I would have no qualms about giving this power to a Minister of this Government. I believe that it would be possible for a Minister of a Government to abuse this power but I do not believe that such a person and the Government of which he was a member would long remain in office if he did this. What we are talking about here, the right to confine persons for five days longer than the two days which is currently the norm, is fundamentally a political decision, an exercise of executive power, and as such, should be sanctioned by a member of the Executive, not by a member of the Garda force. It may come to exactly the same result in the end. The same number of people may be detained, exactly the same people may be detained in point of identity, but the important constitutional principle would have been maintained—the principle that the exercise of force on behalf of the people should wherever possible, especially in exceptional circumstances like these, be directly exercised by somebody who is directly responsible to the people themselves. The formula which is adopted, for whatever reason, in this Bill runs the risk of at least enhancing this idea that Government Ministers may use their powers selectively, and also perhaps undermines the need for a consistent and solid reputation for impartiality among the Garda Síochána.

One further thing which I would like to raise on this section is the question of whether we or anybody are to know exactly who has been detained and who has been charged. Is there any mechanism for knowing this? Will it be possible for the Minister for Justice to direct the Garda Síochána in their annual report every year to state explicitly the number of persons detained under this legislation and the number of persons so detained who have subsequently been charged? There is a real danger that in throwing out this very far-flung net we may be doing a considerable violence to the principle that it is better that one guilty man should go free than one innocent man should suffer a penalty. The experience of the operation of the British Act is a concrete fact with which we have to contend here. In the first 12 months of the operation of the British Act more than 1,100 people were detained under it. Of that figure of more than 1,000 people the tiny number of 51 people were finally charged; that is, that less than 5 per cent of those who were detained were eventually charged by the police; 95 per cent or more were let go on the presumption of innocence or at the very least because there was no evidence which would even sustain charges against them. Of the 5 per cent who were charged a substantial minority, perhaps as many as a third, were charged with offences that had absolutely nothing to do with terrorism at all. They were charged with offences like wasting police time and conspiracy to defraud the Inland Revenue.

I would recommend to Members of this House who are looking forward to the operation of this Bill to read the debate in the British House of Commons on the renewal of their emergency legislation there and see those figures, figures which would give all of us pause. I would hate a similar situation to arise here, a situation in which the number of people we are locking up for extended periods of time bears less and less relation to the number of people we are charging. I would hate to have it said of us in ten or 20 years' time that we have passed from being a pre-liberal into being a post-liberal society without experiencing any of the compensations of an intervening period.

Business suspended at 12.40 p.m. and resumed at 2.00 p.m.

Mr. Mullen

I want to support the pleas made here and in the other House asking the Minister to take another look at this Bill. I was pleased to witness the former secretary of the Labour Party advocating the setting up of an impartial and independent method of investigating complaints against the Garda. That is not to be regarded as a reflection on the Garda. If such a system was instituted it would afford a great deal of protection to the Garda from malicious rumours, mischievous comments and indeed irrelevant complaints.

During the course of the presentation of this legislation the Minister has been at pains to say that there are ordinary remedies of going to court to obtain redress. The Minister knows very well that in this part of our country we have no system of legal aid to enable ordinary people to bring actions in court. Until such time as that is done what the Minister is saying is absolutely meaningless. It is very much in the interests of everybody that a dialogue be established between our Minister for Justice and the community. If this is done there will be a greater understanding and appreciation of the intentions on one side or the other. It is not good enough for the Minister to say that only the guilty need worry. One has only to have regard to what is happening even now without the introduction of this legislation. I would like to refer the House to the front page of the Evening Herald of the 1st September which read:

Slogan Shock For City Worker

The Special Branch was accused today of manhandling an innocent worker as he was cleaning a Provisional IRA slogan from a city centre wall.

Jimmy Byrne was carrying out his employer's instructions in cleaning the slogan from the wall on the Marlborough side of the Dublin School of Catering. He got the shock of his life when first a squad car and later a Special Branch car pulled up beside him as he was beginning to tackle the job.

I need not read the whole article. It was also reported in the Evening Press, and its heading on page 5 was: “Garda Swoop Grabs Wrong Man”.

Something very significant happened about that time. The colleagues of that working man went out to advise, in the first instance, the uniformed members of the Garda that he was only doing what he was told. He was not writing it up; he was taking it off. The Garda then appreciated that and let him go. When the Special Branch came along and took a hold of him they told his colleagues to "f—off" or they would do the same with them. That is not the type of dialogue to have between our police and the people. Something would have to be done about that kind of thing. Again it is not good enough to say you have redress through the courts. It takes too long, apart from anything else.

In addition to this, many organisations and individuals have expressed fear and anxiety about the Emergency Powers Bill. I do not have to spell them out. We read about them in the various newspapers. They include such a body as that appointed by the Catholic bishops to the Commission of Justice and Peace, the well-known and respected Incorporated Law Society, and the Irish Congress of Trade Unions. What did the Irish Congress of Trade Unions find it necessary to say in connection with this matter? They issued a press release which reads:

The Irish Congress of Trade Unions is totally opposed to armed subversion and terrorism from whatever source it emanates and under whatever guise. It recognises that the fundamental liberties of citizens and the democratic processes are threatened by the activities of groups that resort to terrorism. Such groups are not only anti-democratic in the fullest sense but treat with contempt the will of the people as expressed through the ballot box.

The methods of bombing, shooting, torture, intimidation and threats are repugnant to all that the trade union movement stands for. The destruction of lives, limbs and propenty by these groups shows a callous disregard for elementary human decency and human rights. Congress is aware too of the enormous economic cost in terms of jobs lost as the campaigns of violence have involved the workers of this island. Nevertheless Congress must be concerned that the means used by Governments to defeat subversion and end terrorism should not be such as to pose a threat to civil liberties.

Whatever may be the intentions of the authorities, it is essential that emergency legislation should not interfere with the basic rights of citizens. For this reason Congress wishes to express its grave concern about some of the provisions contained in the legislative proposals at present before the Oireachtas. As regards a declaration of a state of national emergency, Congress has not been convinced that the present admittedly serious position, with the threat to democracy and freedom that is posed by subversion and terrorism, is such as to require the extreme powers being vested in the Government.

Certain other provisions of the proposed legislation could have serious implications for our trade unionists. In a period of acute tensions arising out of economic, political and security difficulties, the trade union movement must be particularly aware of the need to protect workers' interests and especially the rights guaranteed by the Constitution. Freedom of association and freedom of expression must not be put at risk by legislative measures. Congress strongly urges the Government to review these proposals about which serious misgivings have been expressed. To do so would not be a sign of weakness but rather of genuine concern to ensure the maintenance of democratic freedom even in the face of threats from those who would destroy it.

Senator Owens, who is a very well-respected Member of this House, found it necessary to highlight the effect that this emergency legislation would have on the class of workers with which she is associated. It should be known to the Minister and the Government that the Trade Disputes Act, 1906, gives protection to a certain number of workers. It protects their right to enter into trade disputes, but that protection does not extend to what is generally described as service workers or people who are not employed in business for trade or commerce, such as civil servants, public servants, corporation workers and so on.

Senator Owens gave an instance as to what could happen under this legislation to members of the Rates Section of Dublin Corporation who because of a dispute refused to collect the rates. Under this legislation they can be dealt with. Similarly, it could happen to ESB employees in the matter of collecting bills. It seems to me that there was not sufficient consideration given to this legislation.

On 11th August this year the Parliamentary Party of the Labour Party, of which I am a member—I am not a member of the Parliamentary Party for obvious reasons—decided to support new legislation that would be introduced. What Deputy Halligan and Deputy Desmond have found necessary subsequently to say convinces me that they were under a wrong impression about the intention behind this whole Bill. In the 1976 Bill reference is made to the 1939 Emergency Powers Act. In the Offences Against the State Act, 1972, there is reference to a Conspiracy and Protection of Property Act, 1875. I am satisfied that it is not the intention of this Government to use this section of the Bill against trade unionists, but there is no point in saying it is not the intention. It has to be spelled out. It is the function of the Government to see that that is done so that there will be no misunderstanding. We can ask if the Bill was really necessary. I say it was not. The Government have over-reacted to a situation. It is extremely unfortunate that they did not react to the other situation in existence which is more serious—the state of our economy and the mounting unemployment figures. Are we to centre all our attention on people who believe in bombing and shooting and forget about the institutional violence being carried out day after day through the economy?

We should ask ourselves the question: is this Bill limited in scope? We have been referring to its possible effects on the trade union movement. It can be seen clearly that this Bill is far too wide. It would not be an admission of defeat if the Minister had a look at this matter. There must be no misunderstanding about the Government's intentions in connection with this Bill. It is not even limited in duration. We heard the scoring off that was indulged in over Fianna Fáil's delay in removing their emergency powers. Let us not fall into that trap. I do not believe that what I have been saying can be described as contentious. I do not believe that the earnest appeal made by the Irish Congress of Trade Unions can be regarded as supporting subversives, but I do believe that if the Minister takes into consideration the entreatment that is there from the Irish Congress of Trade Unions he will be doing a good job.

Professor Quinlan

I want very briefly to welcome the changed approach of the Government in listening to reasoned amendments.

An Cathaoirleach

The Senator should not comment even favourably on the proceedings in the other House.

Professor Quinlan

Except that in the proceedings here we have had a great deal of unnecessary misapprehension about the situation, about the emergency which is a technical one. This could have been eliminated if the Government had listened to appeals that were made in the past to set up an all-party committee on national security. That is an absolute essential. Stripped of the newspaper headlines and all the distortions, there is no difference between any group in the Seanad or Dáil. We are all united in that we want to see subversion dealt with. We want conditions created to try to resume the building of the country. In other words, we want to overcome the disastrous setback that has occurred in the last two years with world depression.

A situation should not be created that would put groups into false positions where, because they argue certain defects or certain possibilities about legislation, they may be made to appear as if they are soft on the legislation. The Government should make practical use of that united approach by creating an all-party committee on security.

I do not intend to vote for any other package introduced under the Emergency Powers Act, invoking section 28, unless the recommendation comes to us endorsed by an all-party committee. I have consistently asked for an all-party approach on many things including Northern Ireland. I have pleaded many times in the past both to the Fianna Fáil Governments and this Government but all to no avail. I have asked that the same appreciation of an all-party approach be shown by a party now that it is in Government as it showed when in Opposition. When we were in Opposition we saw the need for an all-party approach. Why then when they have the opportunity in Government do they not take it and set a headline for the country? We cannot afford to have this divided front. A united front is now more important than ever now that we are members of the European Economic Community.

I appeal to the Minister, who many times supported my pleas for an all-party committee, to support it in the Cabinet. Let the next newspaper headlines we read be of the setting up of an all-party committee on national security. Let that be a prelude to an all-party approach to many of the other problems including the glaring, depressing and most urgent problem of unemployment, especially that of the school leavers who are aggrieved at having institutional violence done on them at the moment. For God's sake and the country's sake, let us tackle that job together.

Mr. Deasy

I will be brief. I wish it to be known that as a public representative I am fully behind these measures. The people with whom I am in contact every day are also fully behind these measures. From listening to the media one would get the impression that there was strong opposition to these measures throughout the country generally. This is completely untrue. The overwhelming majority of the people are 100 per cent behind the Government in what they are doing. I have noticed that, since these measures have been introduced, this message has got across to many politicians. The Opposition's attitude has become muted and has almost died away completely, because the politicians and the other commentators who protested so loudly have been left in no doubt about the people's views.

The people want to see the Provisional IRA put down once and for all. They are sick to death of them. They are willing to back any legislation which will see an end to their evil campaign. People ask why we do not protest loudly against the UDA, UVF and other such bodies. We do. We regard them as every bit as despicable, but the Provisional IRA emanate from our society; therefore, it is our job to see that the threat which they pose, both in Northern Ireland and here, is eliminated.

We are told that it is wrong to introduce this legislation because if people with evil intentions assume power they can misuse the legislation. Surely, we as public representatives are always under an obligation to the public who have elected us. I could never visualise our public representatives misusing this type of legislation. I have every confidence in the Government seeing that it is operated in a just and proper manner. It is a smokescreen to say that it could be misused. It will not be in this day and age, and I doubt if it ever would.

It has been said that the legislation is a threat to free speech and democracy; it is anything but that. It is designed to ensure our right to speak freely and to continue to live as we do today. We have one of the freest societies in the world, if not the freest. There is no other country in which it is possible to speak as openly or to carry out one's normal, lawful activities as in Ireland.

I took exception to a remark in reply to a statement by the Parliamentary Secretary to the Taoiseach, Deputy Kelly, last week when he stated that nowhere in the world was there as much freedom of speech as in Ireland. Deputy Haughey made the glib remark "Russia". This type of remark is anything but helpful. This country is suffering quite a bit economically, due to the impression being created abroad. There are many industrialists who will not come to set up industry in the country and there are many tourists who will not come here because they feel they are not safe.

Mr. Lenihan

That is because a state of emergency is declared at the drop of a hat.

Mr. Deasy

It is not. These people feel they are unsafe due to illegal activities by a very small minority. The impression that this feeling is due to the state of emergency is completely untrue. The Emergency Powers Bill is being framed to eliminate the type of activity we have seen in recent years, the type of activity referred to by the Taoiseach in the Dáil, the assassination of the British Ambassador and the civil servant——

Mr. Lenihan

That is murder.

Mr. Yeats

How would this Bill have stopped that?

Mr. Deasy

The Emergency Powers Bill is designed to apprehend people such as those who committed these crimes.

(Interruptions.)

An Cathaoirleach

Senator Deasy without interruption.

Mr. Deasy

As I was saying, great damage is being done to the country by the impression abroad that life in Ireland is unsafe. This is completely false and the sooner we put down these elements the sooner we can return to normality. The Opposition, of late, have started harping on the theme that the Government should not merely talk about security but should divert their resources to economic issues, that this Bill is only a facade. Again, this is an entirely false view. If the economy is suffering somewhat, the cause could be largely attributed to the security situation in the country.

Mr. Yeats

"Somewhat" is a great word.

Mr. Deasy

Perhaps it could even be largely attributed to it. Industry has taken a battering because foreign industrialists are loath to invest when they feel their money might be in jeopardy; tourists likewise would be loath to come. We have had to increase the number of the Army and gardaí to a degree unknown before. All this leads to a tremendous drain on our financial resources, which are limited at the best of times.

Today, we heard Senator Mullen telling the House that we should deal first of all with institutionalised violence. What a lovely expression. So, we take on the Provisional IRA and deal with them. Of course, we must deal with the Provisional IRA because they have let it be known in no uncertain terms that, as they see it, when they are finished with Northern Ireland, they will turn their attentions to the South. These people's intentions are not a bit clouded; they may have been initially but their one objective is to take over the country in its entirety. Then we will see what tyranny is all about and those people who were squeaking about these Bills will be down on their knees wishing that democracy ruled again. Thankfully, we will never arrive at that situation. This type of Bill being enacted by a Government such as we have at present will make sure of that.

I do not wish to be unduly critical of the Opposition. Their tone in both Houses has become a little more conciliatory. The Opposition and the Government are seeing eye to eye at last. That is to be welcomed. I have stated that I always had the highest regard for the Leader of the Opposition. When he was Taoiseach he showed a fine example in dealing with certain elements, namely, the Provisional IRA. The present Government have done likewise and have even increased their vigilance. We also owe a debt to the minority politicians in Northern Ireland, namely, the SDLP. I condemn certain elements, the Provisional IRA, UDA, UVF and the politicians on the majority side in Northern Ireland. Those people, by and large, have shown themselves to be terribly weak and have allowed themselves to be manipulated by ignorance and militancy and I have no time for them. But let us give credit where credit is due. Let us support the reasonable politicians in Northern Ireland. Let us support the present Government in its measures and we can defeat the common enemy. That is all I have to say.

Minister for Lands (Mr. T.J. Fitzpatrick,

Cavan): First of all, I would like to thank the Seanad for the reasonable debate to which I have been privileged to listen. That is not to say that I agreed with everything that was said during the debate. The Seanad is to be complimented on the manner in which it tackled this piece of legislation and for the manner in which it conducted this Second Reading debate. I would like to get down to earth and tell the Seanad what I feel is involved in this piece of legislation.

During the debate led off by Senator Lenihan it has been suggested that in some way or another the Government, through this measure, are attacking the Constitution, are undermining the Constitution, are abrogating the Constitution. That is not the case. This House and the other House passed a resolution under Article 28 of the Constitution some time ago and that resolution passed by both Houses did not take away from anybody or any citizen of the State any constitutional right. It did give the Oireachtas the right to pass legislation which might otherwise be unconstitutional.

The Supreme Court many years ago held that the right to detain or keep in custody without charge for 48 hours was constitutional. There was some doubt as to whether an enactment which gave the statutory right to hold people without charge for longer than 48 hours might be held to be constitutional and it was for that reason that the resolution I have spoken of was passed. As I said, that resolution did not in itself take away anybody's constitutional right. The constitutional rights laid down by the Constitution are being taken away only to the extent that they are spelled out in black and white in this measure.

Mr. B. Lenihan

That is agreed.

Mr. T.J. Fitzpatrick

(Cavan): I did not interrupt the Senator and I would like him to permit me to state my case. Constitutional rights are only taken away to the extent that they are spelled out in black and white in this measure and the sum total of the infringment or of the alteration of the constitutional rights of the individual during the duration of this Bill is that he may be held without charge for up to seven days, instead of up to 48 hours.

The next thing I want to say is that we are not invading the Constitution. We are not abrogating the Constitution. We are working the Constitution, because Article 28 of the Constitution was written in by the people who drafted it and enacted by the people in anticipation of a state of affairs where more than ordinary powers would be required to safeguard the institutions of the State and the liberty and property of the individual.

Mr. Yeats

In anticipation of a world war.

Mr. T.J. Fitzpatrick

(Cavan): That was seen by the drafters of the Constitution and was written into the Constitution so that in certain circumstances—world war being one of them, an armed conflict outside the State which spilled over in here being another—the Oireachtas might have available to it powers to protect democracy, to protect the institutions of the democratic State and to protect the property and lives of the people. I say that we are using the Constitution as it was intended to be used.

It is right, of course, that there should be a wide-ranging debate about legislation like this. It is right, indeed, that that debate should take place in the House and, indeed, outside the House and it is also right that organisations and associations who take on themselves the responsibility of being watchdogs of the people's rights should speak and make their views known but it is not right that responsible associations or organisations should indulge in groundless scaremongering or that they should misrepresent the legislation in order to terrify the citizens of this country into believing that it is something which it is, in fact, not.

I regret that in that context I have to refer to a document which I got from the Irish Council for Civil Liberties and on page 11 I read this:

Duration of the emergency powers. Although the powers, including seven-day detention, drafted under the Emergency Powers Bill are to remain in force for only 12 months, the Act itself and the state of emergency are more likely to continue. This means that these emergency powers may be renewed and others may be introduced by the Government by Government order without further reference to the Oireachtas. The public would be most unwise to assume that the duration of the emergency powers will be limited only to 12 months.

With the greatest respect and subject to contradiction that paragraph means and is intended to convey to the people to whom it was addressed that this measure may be renewed without any reference to the Oireachtas. You may have an argument with me about that.

Mr. Lenihan

That case was not made by us in the House.

Mr. T.J. Fitzpatrick

(Cavan): I wish Senator Lenihan would not interrupt. You may have an argument with me as to whether it is strictly correct to say that it can be renewed without reference to the Oireachtas. I say it cannot because the order renewing it must be laid before the Oireachtas. We can have an argument about it.

Mr. Lenihan

That is agreed.

Mr. Yeats

Like thousands of others every year.

Mr. T.J. Fitzpatrick

(Cavan): But surely to goodness this is a blatant fact. This means that these emergency powers may be renewed and others may be introduced by Government order without further reference to the Oireachtas. That is fantasy. That is misleading rubbish and I regret to have to say that the copy that I received bore a complimentary slip from a lady for whom I have the height of respect, Senator Mary Robinson. I do not know if Senator Robinson read this paragraph or not. It is a pity she did not. She undertook a heavy onus in her capacity as a Senator, bearing the reputation that she does in this House and in this country with her powers of persuasion and national appeal, to let loose on this country with a complimentary slip under her hand that most misleading paragraph.

Mrs. Robinson

If I might just intervene on the point, because I am on the executive of the council. I did not in fact draft it but I do accept responsibility for the statement. I think the Minister has some measure of the right here. There is an unnecessary ambiguity in the statement. I would submit that the Government, because they can renew or revise emergency powers without reference to the Oireachtas, have too much power as the Executive—we can deal with this on Committee Stage—and that it is not enough that this matter can then be laid before the Oireachtas.

The Government can extend the scope of the Emergency Powers Bill because the Government, and the Government alone, can schedule offences, and we can see in section 7 of the Conspiracy and Protection of Property Act, 1875, the schedule of offence. Tomorrow the Government, by ministerial order, with no reference to the Oireachtas, can schedule a whole range of offences and then people can be arrested and detained for those offences. It is not necessary to have any reference to the Oireachtas for that. That is an extension of the scope of the Emergency Powers Bill. That has not been sufficiently clarified in the section. I accept that it is to some extent ambiguous and I would regret that.

Mr. T.J. Fitzpatrick

(Cavan): I do not want to have a prolonged debate on this; I do not want to be unfair to Senator Robinson, nor do I want to take advantage of the fact that she sent out this circular. But I think that she and myself understand the same language. I think it was unfortunate that Senator Robinson did not draft this document. I thing it was unfortunate that she had not a close look at it before she sent it out because I want to say this—and I say it convinced that I am correct—this means that these emergency powers may be renewed. These are the emergency powers contained in this Bill and the only emergency power contained in this Bill is the right to detain for seven days instead of two.

Mr. Lenihan

After arrest on suspicion.

Mr. T.J. Fitzpatrick

(Cavan): This means these emergency powers may be renewed and others may be introduced. Nothing could be more misleading than to say that other powers, foreign and unassociated with the powers conferred in this Act, may be introduced by the Government without further reference to the Oireachtas. I know that we are very busy and sometimes we sign our names to things we do not study as closely as we should. The Minister for Social Welfare here a few years ago withdrew social welfare from half the country. I do not believe he knew he did it but he found himself in a very awkward situation as a result. I do not want to labour this, but it is unfortunate that this ballyhoo was loosed on the country because I believe it created an anxiety in people's minds and perhaps misled other people in high and exalted positions to join in this debate and start a sort of scaremongering in the belief that this was right.

Is there any precedent for invoking the Constitution, Article 28, about which I have been speaking? Of course there is a precedent for it. A state of emergency was declared as far back as 1939, and I do not have to labour the fact that it has only been suspended since these measures were introduced here. It is true to say, as Senator Yeats has said, that that was in the time of a world war. This country was not involved in that war. The effects of that world war were overspilling here and certain people living in this country wanted to avail of the conditions created by that world war to make things impossible for the Government of this country. There is a great difference between those circumstances and the circumstances prevailing here at the present time.

Mr. Yeats

There is a question also of starvation.

An Cathaoirleach

The Minister should be allowed to conclude without interruption.

Mr. Lenihan

He might talk about something other than the declaration. He might talk about the Bill also.

Mr. T.J. Fitzpatrick

(Cavan): These measures were introduced by the previous Government, of which Senator Lenihan was a member, or at least his party were in Government. They introduced very severe measures in the early days of the emergency. They introduced internment, and internment is still on the Statute Book.

I hear Senators professing to be terrified because somebody is to be deprived of his liberty for five days. They do not seem to object at all to the fact that on the Statute Book and part of our statute law is the right of the Government—conferred on the present Government by the Fianna Fáil Government—to intern people indefinitely. That right is there. We do not have to come to the Seanad; we do not have to come to the Dáil; the Government can operate it by proclamation, by passing a resolution. That right has been given and it is there. There is not a word about it. Senator Ryan says that I dare not do it. A very short time ago the Leader of his party in reply to a parliamentary question said he was about to do it because important personages in this country were threatened with kidnapping and because there was a scheme afoot to rob banks. That happened as late as December, 1970, when the Fiana Fáil Government said they were going to introduce internment.

Dr. Browne

In Opposition we said this was an outrageous thing to do.

Mr. T.J. Fitzpatrick

(Cavan): Somebody reading the debate on security since the beginning of this State says that there is one thing common to all the debates, and that is that anybody in Government had to eat his words on this subject when in opposition.

Mr. Yeats

It would be fascinating to hear the Minister on section 2 of this Bill.

An Cathaoirleach

We can do so when section 2 comes before the House.

Mr. T.J. Fitzpatrick

(Cavan): There is precedent here, created and put on the Statute Book by the last Government, for introducing far tougher measures when the state of the country was far more peaceful and when there were fewer threats to the institutions of State than there are at the present time.

I was invited by Senator Trevor West to spell out here the reasons why this legislation is necessary. He wanted concrete justification for the introduction of these measures. I believe that the measure I am dealing with now is absolutely necessary and more than justified. I will start a few years back, and I will put on the record of this House why I think these measures are necessary. We have had in the country over the last number of years, not threatened bank robberies, but actual bank robberies taking place daily and we have had bank robberies aggravated by murder of police officers who seek to prevent those bank robberies. There were two instances, Garda Fallon and Garda Reynolds. They were done to death because they discharged their duties in trying to apprehend bank robbers. If Garda officers happen to come on the scene of a bank robbery the likelihood is that they will be killed.

Senator Michael O'Higgins mentioned yesterday the tragic death of Senator Billy Fox, a Member of this House, a Senator representing my native constituency. Since then Castleblayney, Monaghan, Clones, Belturbet, Swanlinbar and Blacklion, all in my present constituency, were razed to the ground or, if that is an exaggeration, very considerably damaged by bombs and some considerable loss of life was involved.

We had the kidnapping of a foreign industrialist, Dr. Herrema. He was not detained for seven days. He was detained for over a month in subhuman conditions to the terror of himself and the absolute terror of his wife and family. It would not be out of place at this stage, when one does speak about the Dr. Herrema kidnapping, to put on the record a compliment that is more than well deserved to Dr. Herrema's wife, a brave lady, a perfect lady, a lady whose courage and appreciation of what was involved in this terrible crime was an example to the rest of the world.

Mr. Lenihan

There is no doubt about that.

Mr. T.J. Fitzpatrick

(Cavan): We had the bombing and blasting of prisons both from within and without. We had prisoners rescued from prisons by helicopter, the first time, I suppose, it has happened anywhere.

Mr. Yeats

None of which will be affected by this change to the slightest degree.

Mr. T.J. Fitzpatrick

(Cavan): I have been asked by Senator West, who is not unfriendly to the Senators, to put on the record of this House the reasons why I think this measure is necessary. If the Senator will bear with me for a little while, I will do that.

I know of another case where a prenuptial family party—the Senator may have been out of the country at the time—was invaded by gunmen and the family was gunned down. Three of those people were seriously injured, one of them is still suffering from the wounds inflicted.

Then there was the bombing of Green Street Courthouse. I put it to the Senators opposite—and I think there are many legal Senators there— that that was an unprecedented attack on the institutions of this State, on its own.

Mr. Lenihan

Very casual security was involved.

Mr. T.J. Fitzpatrick

(Cavan): Perhaps measures would be taken again but following up on the litany that I have given, I am sure that Senator Lenihan from his training as a lawyer shudders to think that a court in session should be bombed.

Mr. Lenihan

Agreed.

Mr. T.J. Fitzpatrick

(Cavan): A court not thousands of miles from here, not in some uncivilised part of the world but in a State in which people talk about civil liberties and the right to civil liberties.

Mr. Lenihan

How was the guy let in?

Mr. T.J. Fitzpatrick

(Cavan): Where would civil liberties end and what would one do to claim civil liberties if the courts of this country are to be bombed?

Mr. Lenihan

The man walked in the door with the bomb.

Mr. M.J. O'Higgins

Does that excuse it, that he walked in the door?

Mr. Lenihan

Where was the security that allowed him to do it? That is the whole point of the matter.

Mr. T.J. Fitzpatrick

(Cavan): Senator Lenihan seems to know more about the actual happenings there. Following on that, we had the assassination of the British Ambassador, the murder of his secretary, Miss Judith Cooke, and the attempted murder of the driver, Mr. O'Driscoll. Surely Senator Lenihan accepts that there is an absolute duty on the State and on all the people of this State to protect the family and staff of the Ambassador.

(Interruptions.)

Mr. Garrett

Tell us why the Bill was not brought in after the assassination of Senator Billy Fox who was a Member of this Oireachtas rather than after the assassination of the British diplomat? Why was the Bill not brought in then if it is necessary at all?

Mr. T.J. Fitzpatrick

(Cavan): So I take it that Senator Garrett is of the opinion that the assassination of the British Ambassador, because he was the British Ambassador, should be overlooked.

Mr. Garrett

I did not say that.

Mr. T.J. Fitzpatrick

(Cavan): If the Senator is not saying that it sounds very like it.

Mr. Lenihan

That happens to be a capital offence under existing legislation.

Mr. T.J. Fitzpatrick

(Cavan): I have given the sorry chapter over the last few years. Since these measures were introduced we have had an incendiary attack on the city of Dublin with £1½ million worth of damage done. It is due to the mercy of God that the damage done did not far exceed that amount. It was not due to the people who intended to burn the place that it did not cost £20 million or £100 million instead of £1½ million.

Mr. Lenihan

That switched the Minister in 1972.

Mr. T.J. Fitzpatrick

(Cavan): The Senator will not put me off. The bombs in 1972 had a telling effect.

Mr. Lenihan

That was a long night.

Mr. T.J. Fitzpatrick

(Cavan): These measures have solidified the Fianna Fáil Party. Official Fianna Fáil and Provisional Fianna Fáil have come together and they are now one happy party opposing these measures. There are some people in this House —perhaps I am not expected to talk about the other House—who are silent on this. I think they want to give the impression in their constituencies that they are supporting this Bill. If they are supporting this Bill, they should vote for it.

Mr. Yeats

It is patently obvious that the Minister is ashamed of this Bill and he is not going to talk about it.

Mr. T.J. Fitzpatrick

(Cavan): There are people in this House who usually talk who have not opened their mouths and I believe that they want to hunt with the hare and run with the hounds. If I am let make my speech, I will make it. If you want to conduct it by interruptions, I will not be silenced.

The only real pertinent question I was asked was to produce justification for the introduction of this measure by the Senator for Trinity College, Senator West, and I am doing that. Also since this measure was introduced and since Fianna Fáil started to oppose it, a Garda squad car set out from Trim and detected a stolen car. It set off in pursuit of the stolen car and eventually the stolen car was brought to a standstill. Two thugs got out of the car with a sawn-off shotgun. They turned the weapon on the two unarmed gardaí, took the patrol car and drove off.

Mr. Markey

What about the unfortunate sergeant who was shot down as well outside Dundalk?

Mr. T.J. Fitzpatrick

(Cavan): That was since this measure was introduced.

Mr. Yeats

Would this measure have helped?

Mr. Markey

The Garda think it would help.

Mr. Lenihan

How many charges have been brought under the Criminal Law (Jurisdiction) Act?

Mr. T.J. Fitzpatrick

(Cavan): As well as that we have had bombs in Limerick, Dublin, Galway and Killarney during the present session. I am asked why this measure is necessary. I have given the litany of horrific crimes committed during the last few years. These crimes have not been committed by people who regard themselves as criminal but by people who claim the right to commit these crimes, who claim the right to do these deeds, who do these deeds in the name of the Irish people—in Senator Lenihan's name and in mine. They claim the right to commit them and to continue to commit them. That is why there is a state of emergency here and why these measures are necessary.

I have proved to the House conclusively that we are not invading or doing violence to the Constitution, that we are operating the Constitution, that enacted by the people in the way in which it was intended to be operated. I have proved to the House as well that we have ample precedent from previous Governments for what we are doing. Despite the best efforts of Senator Lenihan and the other Senators on the front bench of Fianna Fáil, I have proved to the satisfaction of any reasonable person that there is in this country a state of emergency—call it what you will—that demands extraordinary powers.

Let me come to the Bill and see what is in it. Before I referred to the Bill it was necessary for me to deal with some of the mischievous propaganda spread by Fianna Fáil although their wilder men are being muzzled in both Houses and are not allowed to get across to the media. Their mischief-makers and rumour-mongers are busy. That is it. You had better come out and say you are either for this Bill or against it.

Mr. Yeats

This, of course, includes all the newspapers in the country.

Mr. T.J. Fitzpatrick

(Cavan): Section 2 of the Bill enacts that it shall remain in power for 12 months unless it is sooner revoked. At the end of 12 months it will expire unless it is re-enacted by a Government order which must be laid before this House and the other House to be debated if so desired by any Senators or Deputies. In any event, it will come to an end when the emergency acknowledged by the resolution of both Houses of the Oireachtas is brought to an end.

It has been said to me—and I had better deal with it here—by a number of Senators that it would be better if this Bill came to an end in 12 months' time, if it had then to be re-enacted by a full-blown Bill introduced in the Dáil and the Seanad and processed in the ordinary way through both Houses of the Oireachtas. We know how long that takes. It takes about a month. This has taken the best part of a month. That is the alternative that has been put to me. There are two points of view. I know the purist will probably say that the other is the perfect democratic way of doing it but I find it very hard to see any difference unless at the end of 12 months there might be a gap between the expiration of this Bill and the introduction of another one. With all respect, I say that that could quite easily happen. The important thing is that the Oireachtas has control over this Bill and these measures. It cannot extend beyond 12 months without a Government order which is subject to discussion, debate and annulment in both Houses. It just takes the same vote to annul the Government order as it would to enact a new measure.

Mr. Yeats

Will the Government give immediate time for such a motion?

Mr. Lenihan

We have an amendment on that.

Mr. T.J. Fitzpatrick

(Cavan): If the measure is put down by Members of the Oireachtas, it will be dealt with in a responsible way by the Government.

Mr. Yeats

It could be nine months in this House.

Mr. Lenihan

Amendment No. 1 is designed to meet this point.

Mr. T.J. Fitzpatrick

(Cavan): It has a better chance of being debated in this House under this Government than it had under the last Government because you only met infrequently then.

Mr. Yeats

That does not answer my question.

Mr. T.J. Fitzpatrick

(Cavan): Section 2 of the Bill, which is the section with the teeth in it, provides that a person whom a member of the Garda Síochána has reasonable grounds to suspect has been involved in a crime or about to be involved in a crime can detain that person for 48 hours. A member of the Garda Síochána not below the rank of chief superintendent may extend that 48 hours to seven days. There is really no difference between the provisions in section 2 and the provisions in section 30 of the Offences Against the State Act, 1939.

Mr. E. Ryan

Only five days.

Mr. T.J. Fitzpatrick

(Cavan): Exactly. The only difference between the Act of 1939 and this measure is that a person may be detained for seven days instead of two days. In fact, in this measure there is a safeguard written in in favour of the accused that the garda must have reasonable cause for believing that the person was so involved. Under the 1939 Act he just had to suspect and that was the end of it. In my opening remarks I said that that is the only individual right which is being tampered with or taken away good, bad or indifferent by this measure and no constitutional lawyer will contradict me because that is a fact. That is the only Constitutional right which is being taken away by this Bill.

Mr. Lenihan

What about re-arrest?

Mr. T.J. Fitzpatrick

(Cavan): There is no question of re-arrest and the Minister for Justice has said that time and time again.

Mr. Yeats

The Minister will not be doing the arresting.

Mr. T.J. Fitzpatrick

(Cavan): I will deal with that. That is really what is involved in this Bill. Senator Robinson was worried lest a person while held in custody for up to seven days might be questioned under section 52 of the 1937 Act. A person, of course, can be released after one, two, three or four days but cannot be held longer than seven.

Senator Robinson was worried that the person might be questioned or interrogated under section 52 of the 1939 Act.

In an amendment introduced in the Seanad provision has been made that section 30, that is the 48-hour arrest section, is suspended during the continuance of this Act. A person cannot be questioned under section 52 of the 1939 Act unless he is in custody under section 30 of the 1939 Act. He will not be in custody under section 30 of the 1939 Act; he will be in custody under section 2 of this Act. We are really putting in cold storage section 52, and I am sure the Senator will be glad to hear that.

Mrs. Robinson

I am very pleased to hear that.

Mr. T.J. Fitzpatrick

(Cavan): It has also been suggested that, instead of the chief superintendent having the right to extend the power of detention from two days to seven days, that right should be conferred on the Minister for Justice. The Government think it is preferable that this right should be conferred on a chief superintendent. Indeed, the thinking of this Government has been to take decisions of this nature from a political head of a Department and hand them over to somebody else. The first example of that was the appointment of a Director of Public Prosecutions. Until that Act was passed prosecutions were directed by the Attorney General. Far be it from me to make any reflection on any Attorney General past or present, but he was always a political figure who came and went with the Government of the day, who was subject, I suppose being a human being, to political practice. We passed an Act which transferred the right of direct prosecution from the Attorney General and conferred it on an established civil servant who has fixity of tenure, who is not a politician. We have passed through the Oireachtas, as we undertook that we would do, an Act to take from the political head of the Department of Local Government the right to adjudicate on planning appeals and to hand that right over to a judicial and independent board.

Mr. Lenihan

You had a Roman Holiday for three and a half years.

Mr. T.J. Fitzpatrick

(Cavan): With respect to Senator Lenihan, we were obstructed right, left and centre. That was the time——

An Cathaoirleach

The Minister should avoid the temptation of following Senator Lenihan down that avenue.

Mr. E. Ryan

The Minister seems to be dealing on this speech with amendments which he knows I put down. In the ordinary course of events this would be a Second Stage speech. The Minister would not know what amendments were going to be down. There should be an interval, possibly, of a week. But, in order to facilitate the Minister and the House generally, we agreed to go straight from the Second Stage into the Committee Stage. In order to do that we have printed the amendments already. The Minister is—and I do not say this in any critical way—taking advantage of the fact that he knows what the amendments are. He is dealing with them now. I suggest that it would be better to wait until the Committee Stage to deal with the amendments.

An Cathaoirleach

I should like to say that there has been a departure from the normal practice in regard to the distribution of amendments. I do not think this can be taken as indicating that the Chair would have to rule out of order all reference to amendments. It is the common practice during the making of a Second Stage speech to foreshadow amendments and to indicate amendments that might be made. The Minister is perfectly entitled in his concluding speech to make reference to amendments that have been foreshadowed in the speeches made by Senators.

Mr. T.J. Fitzpatrick

(Cavan): I note Senator Lenihan is trying to help me. I should not like to be carrying on if he was trying to obstruct me. With all due respect, a Chathaoirleach, I want to say that every point I am dealing with has been raised at least once on Committee Stage by Senators. At any rate, Senator Lenihan was saying that it took us three years to get the planning boards established. That is because we were obstructed by Fianna Fáil. We were obstructed because at that time they thought we would not be in power for six months, 12 months, or 18 months and they did not want to let the Bill through until they would get back into power and get their hands on the planning appeals.

An Cathaoirleach

The Chair would be glad if the Planning Bill were left behind and the debate would return to the Emergency Powers Bill.

Mr. T.J. Fitzpatrick

(Cavan): I could deal briefly with many points raised by Senators and I will try to be brief. Senator Lenihan suggested that these people were to be held incommunicado.

Mr. Lenihan

That is in the Bill. There is no right in the Bill to have a relative, or a solicitor or a doctor present.

Mr. T.J. Fitzpatrick

(Cavan): Senator Lenihan also suggested that the introduction of this Bill would in some way interfere with our tourist business and our industrial efforts. I want to suggest to the commonsense of the House that Fianna Fáil must be very bankrupt for an argument to make a point like that. Surely the bombing of the hotels in Galway, Limerick, Dublin and Killarney and the incendiary devices set off in this city are calculated to damage our tourist business. The tourist will see in this measure an effort on our behalf to protect them and to see that this is a safe place to live in.

Fianna Fáil can be absolutely reckless. I remember that when the Wealth Tax Bill was going through the Oireachtas a senior member of the Front Bench of Fianna Fáil sent most misleading communications to the United States of America without checking them. That act was calculated to do the same damage as this is doing. I believe that efforts to make this country safe for tourists, to prevent the kidnapping of industrialists, is the way to encourage tourists and industrialists, and I am glad I have the support of Senator Lenihan, even belatedly.

Senator E. Ryan in the course of his contribution—and we will be dealing with that later—said that 99.9 per cent of the police force were decent honourable men. I go the whole way and say that they are 100 per cent efficient and a highly respected force.

We may have an amendment to write into this Bill the right of access of people who are held to their lawyers, doctors and relatives. The Minister for Justice and I are advised that those rights are there under Article 40 of the Constitution.

Mr. Yeats

The Minister for Justice told me he had not the faintest idea what the position was.

Mr. T.J. Fitzpatrick

(Cavan): I should like Senator Yeats to get me the text of that. The rights that are mentioned are guaranteed by Article 40 of the Constitution. Every practising lawyer in this country knows that access to lawyers has never been refused, that lawyers have the right to see their solicitors, to see their clients in Garda barracks or elsewhere provided they are doing qua solicitors or barristers, not qua something else.

Mr. E. Ryan

That is a very dangerous qualification.

Mr. T.J. Fitzpatrick

(Cavan): It is not a dangerous qualification. Senator Robinson dealt with this quite fully.

Mr. Yeats

The Minister said that the legal position is unresolved and that the law may be and often is uncertain, and a whole lot more besides. It is reported at column 204 of the Official Report for 1st September, 1976.

Mr. T.J. Fitzpatrick

(Cavan): This Bill does not take from the right of detained people under the law. I have been informed by the highest authority available to the Government that Article 40 of the Constitution preserves those rights and that they are safe. I accept that. I say that here for the record of this House. Senator Robinson dealt with this in her usually efficient way but she suggested that a measure of this sort was not the measure to deal with access to prisoners in a general way, that if this necessity arose, and it has not arisen yet, it should be dealt with in a comprehensive measure.

Mrs. Robinson

Like the Criminal Law Bill.

Mr. T.J. Fitzpatrick

(Cavan): I would prefer to see it dealt with an some general reforming measure, if it was necessary. I do not accept that it is necessary.

Mr. Lenihan

We have an amendment on it——

Mr. T.J. Fitzpatrick

(Cavan): I sat in this House for two days. If I interrupted anybody I did so to ask questions and I apologised on each occasion. It is very difficult to deal with this during a barrage of interruptions from Senator Lenihan who made a speech from the top of his head.

Mr. Lenihan

I am trying to be helpful.

Mr. M.J. O'Higgins

In fairness to the Minister for Justice, the full text of the remarks that he made at columns 203 and 204 should be referred to, not merely the tailend of them. He started at column 203 by saying: "If it is an unresolved point...". and he then went on to explain the context in which he referred to matters as being unresolved. There is no question of him saying dogmatically that this was an unresolved point.

Mr. Yeats

Why not write it into the Bill?

Mr. T.J. Fitzpatrick

(Cavan): Do not play politics. The rights of prisoners or detained persons are not interfered with by this measure. I agree with Senator Robinson that this could be done at some future time. She said the complaints machinery would not be appropriate now but might be appropriate at some other time.

Mrs. Robinson

It would be appropriate now.

Mr. T.J. Fitzpatrick

(Cavan): The Senator said that it would not be appropriate now.

Senator Trevor West dealt in a general way with this matter. If I am paraphrasing him correctly, he said that no Government were ever likely to permit the sort of things that Senators are talking about but are afraid to say, that no Government would ever tolerate the abuse of prisoners in custody. That is what Senators are saying is going to happen. If it is what they are saying, they should say it publicly. But Senator West said that they would never tolerate that. He gave his reasons. He said the people would not tolerate it; the ballot box would ensure that it did not continue.

Mrs. Robinson

Would the Minister say how the public would control or know what would happen during the seven days at the moment without a complaints machinery, without access guaranteed to legal advisers and doctors?

Mr. T.J. Fitzpatrick

(Cavan): Anybody detained under this Act will be detained for not more than seven days, probably a lot less. Such people will have access to their lawyers. They must be either released or brought before the courts after seven days. One would think they were going to be shut away indefinitely and not heard of for years.

Mr. E. Ryan

It is a long time if you are detained. It may not sound much here today but if you——

(Interruptions.)

Mr. M.J. O'Higgins

They were to be interned indefinitely in 1970.

Mr. T.J. Fitzpatrick

(Cavan): And shot them when they were trying to escape.

Mr. Yeats

Is the Minister serious about that remark?

Mr. T.J. Fitzpatrick

(Cavan): The Provo vote will be looked after by official Fianna Fáil and provisional Fianna Fáil.

Mr. Yeats

Is the Minister saying that the guards shot people deliberately while pretending they were trying to escape.

Mr. Lenihan

Is the Minister trying to be a subversive? It is a very loose remark for a Minister.

Mr. T.J. Fitzpatrick

(Cavan): During the past two days I did not interrupt one Senator. I asked a question once and I apologised for doing so. Since I have tried to reply to about 14 or 15 Senators I have got nothing but a barrage of abuse, not from the back benches of Fianna Fáil but from the front bench.

An Cathaoirleach

The Chair has repeatedly called for the Minister to be heard without interruption.

Mr. T.J. Fitzpatrick

(Cavan): This Government's record in the line of reform and in the line of looking after our under-privileged people and in bringing about long overdue reforms should be sufficient evidence that there is nothing to fear from this Government. I should like to put on record some of the enactments that we have passed since we came into power. First of all, there was the reform on the law of adoption, two different Acts. We established the office of Director of Public Prosecutions to make sure that everything would be independent. We amended the maintenance orders so that unfortunate creatures were not living on sums fixed many many years ago and neglected by the previous Government. We introduced the Law Reform Commission which must be the most enlightened institution that has been brought into this country for many years. We introduced and enacted the Family Law (Maintenance of Spouses and Children) Act, 1975 which was long overdue. We put on the statute book the Family Home Protection Act, 1976, and the Juries Act, 1976, seven enactments which I am sure people of the enlightened approach of Senator Robinson were looking for for years and campaigning for for years. We put those on the statute book since we came into power. It is unlikely, extremely unlikely—it is just not possible—that this Government with that record and with that approach are likely to tolerate any of the things that are being suggested.

Mr. Yeats

The Minister forgot to mention equal pay.

Mr. T.J. Fitzpatrick

(Cavan): A point was made by Senators Owens, Connolly, Mullen and others in relation to offences under section 7 of the Conspiracy and Protection of Property Act, 1875, and I will deal with that before I conclude. I hope that I will not be misunderstood when I say that it was refreshing to hear a Senator who is as highly respected as Senator Connolly dealing with one particular part of this legislation which he thought needed to be brought to the notice of the House. It is good and encouraging for the Government to think we have people of his standing in our community to speak out for the people when he thinks it should be done and to stand up for the rights of people in general when that is necessary.

Section 7 of the Conspiracy and Protection of Property Act, 1875, worries some Senators because they say the effect of it is that trade unionists who are not employed in industry and commerce but in the service sector have not got the protection of the Trade Disputes Act, 1906, and that if they were picketing offices or places of employment they might be guilty of an offence under section 7 of the Conspiracy and Protection of Property Act, 1875. First, this offence was scheduled on the 17th November, 1972, and has lain there quietly since and we have never heard about it. I can conceive that what the Senators fear could happen in theory, but let me tell the Senators why that offence was scheduled: it was because an illegal organisation decided to picket the houses of judges without any consideration for the fundamental rights of privacy or the ordinary human rights of the judges' wives and families. It was because that illegal picketing was threatened and in fact took place that this particular section was scheduled in order to put an end to it. There was no further picketing. I want to tell Senator Connolly and others here that there is no intention good, bad or indifferent, of invoking this section against trade union officials and leaders, trade unionists or unemployed people——

Mrs. Robinson

The Minister cannot guarantee that.

Mr. T.J. Fitzpatrick

(Cavan):——in pursuit of their lawful business, none whatever for picketing in a peaceful way. I am giving that guarantee on behalf of the Minister for Justice.

Mrs. Robinson

It is the DPP who decides.

Mr. T.J. Fitzpatrick

(Cavan): No, the DPP decides on prosecutions which are brought before him. I am giving that undertaking to the House and a further undertaking that this is a section which has been scheduled— of course, it can be unscheduled—in prevailing conditions and the reason for which it was set down is to protect the private life of public servants, something which I am sure is dear to the heart of Senator Robinson—the right of people to live their private lives without molestation; the right of the wife of a public figure to live in her house without fear of being terrorised by thugs outside; the right of the children of these people to live the lives of ordinary children. There is nothing more sinister than that behind this scheduling. The Minister for Justice will have a look at it to see if anything can be done to put it beyond doubt. The principal thing is that it can be dealt with by an order. It can be unscheduled just as it was scheduled. I hope that that will satisfy the fears of those who have raised this question.

I am sorry if my concluding speech was a bit topsy-turvy but I did not create the waves; they came and I had to try and battle my way through them. I would ask this House to accept this measure. I have a list of points made by various speakers. I respect the views put forward by Senators Higgins, Quinn and others who had a contribution to make or a point of view to put forward. I ask them to sit down and think with me, and to ask themselves: what is behind this Bill? This Bill is going on the Statute Book to ensure that Senators like Senators Higgins, Quinn and Mullen can do the things they want to do without molestation.

This is a Bill to preserve democracy, not to attack it. This is a Bill to preserve free speech, not to muzzle anybody. This is not a Bill which is aimed alone at the Provisional IRA but at anybody who claims the right to rob a bank with firearms. This is a Bill which is meant to deal with anybody who puts an incendiary device into a cinema in Dublin. This is a Bill which is aimed at anybody, organised or unorganised, who thinks he is entitled to attack a squad car with a sawn-off shotgun and take the squad car away for the purpose of some other evil doing. This is a Bill which is aimed at anybody who indulges in kidnapping, bombing, shooting, bank robbing or any of the other litany of things which it was my unfortunate duty to read out to this House on the opening Stages of this Bill. That is what it is all about.

There is no use in the Opposition trying to say that there is something sinister behind this Bill. It is a Bill which is here to preserve democracy. If these people, whether organised or unorganised—and I would prefer not to give them a title—had their way they would impose their will on the people and on what they would say, print, subscribe to, on whether people would buy papers and so on. We believe, though I think it is unlikely, that there may come a time when they will be entitled to do that but they will not be entitled to do that until they get the right from the Irish people to do that through the ballot box.

Professor Quinlan

Will the Minister sympathetically consider my plea for an all-party committee on security?

Mr. T.J. Fitzpatrick

(Cavan): I will consider Senator Quinlan's suggestions and bring them to the attention of my colleagues in the Government. I cannot do any more than that.

Question put.

The Seanad divided: Tá, 29; Níl, 15.

Tá

• Boland, John.
• Butler, Pierce.
• Codd, Patrick.
• Connolly, Roderic.
• Daly, Jack.
• Deasy, Austin.
• Ferris, Michael.
• Fitzgerald, Jack.
• Harte, John.
• Iveagh, The Earl of
• Kerrigan, Patrick.
• Kilbride, Thomas.
• Lyons, Michael Dalgan.
• McAuliffe, Timothy.
• McCartin, John Joseph.
• Mannion, John M.
• Markey, Bernard.
• Martin, Augustine.
• Moynihan, Michael.
• O'Brien, Andy.
• O'Brien, William.
• O'Higgins, Michael J.
• O'Toole, Patrick.
• Owens, Evelyn.
• Prendergast, Micheál A.
• Quinlan, Patrick Michael.
• Quinn, Ruairí.
• Sanfey, James W.
• Whyte, Liam.

Níl

• Browne, Noel C.
• Browne, Patrick (Fad).
• Cowen, Bernard.
• Dolan, Séamus.
• Eachthéirn, Cáit Uí.
• Garrett, Jack.
• Hanafin, Des.
• Keegan, Seán.
• Lenihan, Brian.
• McGlinchey, Bernard.
• Mullen, Michael.
• Robinson, Mary.
• Ryan, Eoin.
• Ryan, William.
• Yeats, Michael B.

Tellers: Tá, Senators Sanfey and Harte; Níl, Senators W. Ryan and Garrett.

Question declared carried.

Agreed to take Committee Stage today.