Senators are aware that the amendments for Committee Stage have, for convenience, already been circulated.
Emergency Powers Bill, 1976: Committee Stage.
Excellent.
NEW SECTION.
I move amendment No. 1:
In page 2, before section 1, to insert a new section as follows:
"1. —(1) Unless previously terminated under subsection (2) of this section, this Act shall continue in force until the expiration of twelve months from the date of the passing thereof unless the Oireachtas otherwise determines and shall then expire.
(2) The Government may by order declare that this Act shall expire on a specified date being earlier than the expiry date of twelve months from the date of passing thereof and in that case this Act shall expire accordingly."
This amendment is self-explanatory and the reason and importance for it was touched upon by the Minister in his Second Stage reply. Basically, what is set out in section 1 of the Bill in regard to the duration of subsection (2) is that it can remain in force for 12 months and, secondly, the Government, by way of order, may continue the Act in force for a further 12 months. During the 12 months they may cease to have subsection (2) in force. Under subsection (3), every order made under the extension —and what we are really apprehensive about is an order extending the Act—shall be laid before each House of the Oireachtas and if a resolution annulling the order is passed within the next 21 days in which that House has sat after the order has been laid before it, the order shall be annulled accordingly.
It is a reasonable presumption that the Bill will become law next week and what we are talking about here is a situation where in 12 months' time we will be in the middle of September and the Dáil may not be sitting until the middle or end of October. The situation may be that the order extending the Act for a further 12 months will be lying there pending a sitting day of the House and the resolution annulling it can be laid within 21 sitting days beyond that. Time must be allocated for a debate on that order. It is a matter for the Government to allocate time and then the Opposition in the Dáil or Seanad can make their usual moves, when the sitting day occurs, to have the debate on the order. However, the Government may not allow it.
The trouble here is that, because of the negative situation which arises, the onus is placed on some Member of the Oireachtas to put down an order annulling the matter. That order can then be delayed in the manner I have described, so that the 12 months granted under this Bill can be an ongoing process of 15 or 16 months. That delaying situation can happen due to the nature of parliamentary process not being as expeditious as it might be.
We are proposing something which should meet the point of view expressed by the Minister. In his reply he took it upon himself to deal with amendments and emphasised, with a certain degree of sympathy, that he felt very strongly about the parliamentary review of the situation after 12 months. Our amendment seeks to copperfasten that expression of sympathy made by the Minister. I have described the delays, difficulties and weaknesses inherent in the situation in having the onus put on somebody in the Oireachtas to negative the order—the weakness because of the limit of sitting days and getting such matters debated and voted on. What we are suggesting in the amendment is to switch the onus the other way: to make it incumbent on the Government, who have all the machinery at their disposal; whereas what is suggested in section 1 (3) is that the onus lies on a Member of the Oireachtas.
I do not want to go over the whole thing again. The Government have gone to the extreme length of suspending the Constitution in regard to the matters contained in the Bill. They recognise the importance of the emergency nature of it—apart from the Minister for Foreign Affairs who regarded it as a mere technicality, as he told the American businessmen in Killarney the other night—and for that reason its duration is limited to 12 months. But this, in effect, could mean much longer, for the reasons I have mentioned. Having regard to the purported serious nature of the Bill we suggest that the onus should lie on the Government to suspend it. They have the machinery at their disposal. They can, if the legislation incorporates it as we suggest, have a situation where the Bill will cease automatically after 12 months. If they feel that the emergency exists in 12 months' time, they can bring another measure before the House.
We suggest that a new subsection be inserted before section 1 providing that:
...this Act shall continue in force until the expiration of twelve months from the date of the passing thereof unless the Oireachtas otherwise determines and shall then expire.
Therefore there is an automatic expiration at the end of 12 months and it does not linger on to be nullified by way of an order through the cumbersome procedure I have mentioned. The new subsection (2) we propose states:
The Government may by order declare that this Act shall expire on a specified date being earlier than the expiry date of 12 months from the date of passing thereof and in that case this Act shall expire accordingly.
The Government may if they wish declare, under subsection (2), the Act expired within the 12 months, or, under subsection (1) that the Act terminates automatically after 12 months. The onus is then on the Government in 12 months' time to introduce a Bill, declare it to be on foot of Article 28 of the Constitution, set out the preamble and bring in this emergency Bill for a further 12 months. We, as sensible members of the Oireachtas and the Government themselves, will have had a chance to see whether all this was really worthwhile. We can then have a debate at the end of 12 months in which we will be able to assess the number of cases in which this matter has assisted the security authorities. We will be able to hear a progress report, as it were, on the operation of the Bill for 12 months and the need, therefore, by reason of the progress achieved under the Bill, to have the Bill for a further 12 months, or the Bill will just hopefully die which is probably what will happen in reality.
I would ask the Minister to seriously consider this. I think it is a far better approach than the other approach which puts the onus on the people who do not have the information, the Members of the Oireachtas who are not in touch with the security situation and who do not have the files or the facts before them, to bring in a motion nullifying the Government order. That is basically what is required at the present time, that the order may be annulled by a resolution proposed in both Houses of the Oireachtas, that the annulling order has to be moved by a Member of the Oireachtas. Under our system of party Government that means, in effect, assuming the present Government will be in power in 12 months' time, by a Member of the Fianna Fáil Party or an independent Member of either the Seanad or the Dáil. That is the type of person or group of people who have to move the order annulling the order made by the Government before each House of the Oireachtas. Whoever is in opposition plus independent Senators and Deputies will not have the information before them to deem whether or not the order should be annulled. They will be people without the necessary security information from the files that are rightly private, files that are available to the Minister for Defence and the Minister for Justice. They are the people, as it were, in the saddle. They are the people who are in charge and have all the data and information available to them.
I feel very strongly that the onus should be on the people in Government with the facts available to them, to take the positive step of either letting the legislation lapse automatically at the end of 12 months or, if the information available to them indicates another approach, to bring in a Bill on these lines for a further 12 months in view of whatever security precautions appear necessary to the Government of the day. The information to prompt that type of decision can never be available to an Opposition or to independent Members of either House of the Oireachtas. Therefore, the onus should be on the Government of the day to renew such legislation, because such legislation, of course, has no raison d'être at all unless it is grounded on security matters that must, of their very nature, be private
I would like to support Senator Lenihan in appealing to the Minister to agree to this amendment. When the Minister was replying to the debate on Second Stage he referred to the fact that it would be impossible and undesirable to have a new Act each year because of the length of time it would take and so on, and he pointed out the length of time that this legislation was taking. I thought that statement was a little unreasonable in view of the fact that, from the introduction of this measure to the Dáil until the likely date of its being successfully passed through this House, no more than 14 days will have elapsed which is really not bad for legislation. Apart from that, I would remind the Minister that on the only previous occasion when there were Emergency Powers Acts in being—of which there was a number—they were in each case expressed to die after 12 months and had to be renewed each time. These were Acts of far greater substance, far greater complexity, than this one. It was, of course, possible to do so because there was a genuine emergency, a real sense of national danger, which encouraged people to pass them through with some expedition but, nonetheless, this was done and it is a pity that that particular precedent was not followed by the Government.
We are not in any event—and I do not know why the Minister raised the question—asking for a new Act each year. What we are asking for is that, instead of the Government making an order each 12 months—an order which can be debated in the usual way and can be turned down by the Dáil but which remains in force until then—there should be a positive order and that it should not be renewed until and unless the Oireachtas, by resolution, has determined that it shall.
The Minister was a considerable time in Opposition as a very welcome Member of this House and later on as a Member of the other House, and he knows perfectly well from his experience of Opposition how useless that kind of order is as a safeguard. There are thousands of these orders made each year and very few, perhaps three or four each year, are actually debated. As Senator Lenihan has said, there are 21 sitting days which can be stretched over a long period. An order of this kind would presumably be picked out of the thousands that are made each year and considered by the Opposition as one which should be debated, but it is a matter for the Government to decide when they should be debated. It would be open for the Government to insist, for example, that it should be debated during Private Members' time for an hour and a half at tea time or alternatively, that Government time should be given for a limited period, maybe one, two or three hours. The Minister knows as well as we do—better than we do because he was in Opposition for so long—that this is no kind of democratic safeguard, that an order of this kind might as well not be put in the Bill at all.
For that reason we are suggesting that section 2 of this Bill which is of such constitutional importance should die after 12 months unless there is a positive agreement by the Houses of the Oireachtas that it should continue. It is not a far-reaching amendment; it is not a far-reaching demand. It is an ordinary democratic safeguard and not one which would in any way hold up the whole legislative programme of the Government, because, as the Minister knows, there would be no question of going through the Bill section by section and putting down amendments and so on. An order of this kind is agreed to or disagreed to, and that is all there is to it. You cannot put down amendments because there are no stages. It is just the one debate. It is a relatively simple operation and even if it did take a couple of days, I do not think the legislative programme of the Government, such as it is, would be gravely interfered with. We are asking that this should be done. I think it is a reasonable request.
I might mention incidentally that section 1 is, to put it mildly, phrased in a somewhat ambiguous way. What the media and many people have not realised is that the Bill which will soon be enacted is permanent, permanent so long as the proclamation of a state of emergency lasts. It is only section 2 that remains in force for 12 months. The rest of the Bill remains in force permanently until the declaration of a state of emergency dies, in which case, under section 3, the Bill also dies. It is only section 2 which is covered by this. However, that is only a point by the way. Obviously, the crux of the matter is this somewhat ambiguous provision in the first two lines of the Bill. In the early days before people came to realise what was involved in this Bill all the newspapers printed the information—which I took as gospel until I read the Bill myself—that this Bill would die after 12 months. It was an unfortunate way of putting it.
However, it is section 2 in which we are interested. I feel that this is a kind of amendment which the Minister would have supported with considerable enthusiasm in his days in Opposition and he would have made the point that I am making—that it is not an unreasonable or excessive demand, that it is not a demand which would interfere in any way with the ordinary day-to-day legislative activities of either House of the Oireachtas. We are suggesting that instead of this procedure by order which is of very limited importance and has very little practical effect, that procedure should be brought in, as suggested in this amendment, which would at least ensure that the democratic process was gone through.
I do not see the logic of this amendment at all when it is set in the context of the arguments that have been made for it. Senator Lenihan's strongest argument —certainly the one which he emphasised to a great extent during the course of his remarks—was to the effect that the ordinary Members of the Houses of the Oireachtas would not have the information and would not have access to the information as to whether or not the Bill should be continued in operation, that it was only the Government, through secret information they had on private files and so on, who would be in a position to take that decision. I do not think that is an unfair summary of the argument made by Senator Lenihan.
What does the Bill provide? It provides that the responsibility must rest on the Government of making an order to continue the measure or not. That is exactly what Senator Lenihan argued for. The Government are the people with the information; the Government are the people with the secret files and all the rest of it who give that information and it is not available to him. So I do not see the logic of that argument at all. Nor do I see the logic of the amendment when we consider what is in the Bill and have regard to the fact that it requires that the kernel of the Bill, section 2, expires in 12 months unless it is continued. I do not think Senator Yeats was quite right in his reading of the Bill, that the measure is there for all time. It is not, of course.
Section 3 provides for the expiration of the measure when the resolution declaring a national emergency has been rescinded by this House. Compare that with the Offences Against the State Act, 1939, the relevant legislation which, up to the passing of this Bill, is the one in force. There, you have permanent legislation. There is no need for the Government or anyone else to continue it. It is there and it can only be ended if it is repealed by the House of the Oireachtas. That is the distinction between what this Government are doing and what a previous Fianna Fáil Government did in relation to legislation of this type. What is in question in that? In this, it is agreed on all sides of the House, what is involved is an extension of five days in the period during which a person can be detained in custody, arrested without warrant and detained in custody. That is what is in this Bill.
Suppose this Bill went in the morning, we are then back on the Fianna Fáil Offences Against the State Act, 1939, which still has the two-day period of detention without trial, which still has the possibility of continuous questioning and interrogation under section 52 of that Act, which is suspended as long as this Act remains in force, specifically suspended because the operation of section 30, under which a person may be arrested under the 1939 Act, as long as this Act is in being, cannot be enforced and, therefore, section 52 of the 1939 Act also goes by the board. If you took away this Act, we are then back to the Fianna Fáil Act. There is a two-day detention with a possibility of renewal and, under section 52, the possibility of continuous questioning.
The operative part of this Bill, the extension of detention from a maximum of two days to a maximum of seven days, is all in section 2, and it is laid down in section 1 of this Bill that the operative part of the Bill expires automatically after 12 months unless it is renewed by the Government. Senator Lenihan concedes that the Government are the people with the information as to whether or not it should be renewed. What is the logic of the argument?
I support this amendment because there is no doubt that, after one listens to the recitation by the Minister in his defence of the reasons for bringing in this Bill, one has sympathy with the Government that they are facing a very difficult situation. There are those of us who feel that the situation could have been met by less stringent provisions in certain regards.
Throughout the debate we have seen, both here and in the other House, a laudable measure of contrition on the part of the Government and particularly their more prominent spokesman when in Opposition. Accepting the measure of fallibility that we all must admit to in relation to the assessment of situations of this kind the general thing now, as the Minister said earlier, is that every Opposition must eat its words when in Government; to my mind, it is a very bad sort of admission but it is the admission of the present Government because it is very difficult for them to do anything else in the light of the record against them. Leaving that aside, without bothering to dwell on it, it seems to me to add to the feeling of contrition.
The other feeling that most of us learned in the penny cathecism was a firm purpose of amendment, that we would not do the like again and this is something I would like to press on the Minister that they do need help in attempting to assess the seriousness of any situation at any particular time. They were not impressed by the Government when they were in Opposition, but at the same time we had the right to say what we thought and to that extent presumably the Government was helped or they might have ignored our advice, whatever they chose to do, but at least there is this act of faith—and this is all this amendment seems to me to be—in the parliamentary process, that admittedly we cannot possibly know as much as the Cabinet know, but that is in respect of a limited part of the problem that they are facing. What we know is what the country is thinking. We come from all over Ireland, from urban and rural areas, and we hear what people are saying. We are involved in various discussions, protests, agitations, controversies and, therefore, the whole corpus of the Oireachtas, with all its defects, is the nearest things that the Cabinet get to a consultation with the community as a whole, and that is probably one of the main merits of the whole parliamentary system, this resort to the people through their elected representatives or even people like ourselves, some of whom are not in the ordinary proportional representation but, part of the Oireachtas at any rate and doing our best to help the Government in their dilemma.
For that reason therefore, I am somewhat surprised at a Government which protests its adherence to the whole concept of democracy, in particular parliamentary democracy, to seek, in some way or another, to try implicitly or directly to set aside this process which has gone on here for some weeks and which I genuinely believe has been a most valuable undertaking even if it had not achieved the objective of changing the Government's mind, which it has done. In one of his earlier speeches Deputy Donegan, the Minister for Defence, said the Taoiseach was not going to change this legislation by one iota. All right that is the kind of bombast Governments tend to go on with from time to time, but the reality has been that the bulk of the arguments put forward here and in public is that public opinion has been educated to the grave dangers implicit in this legislation.
While the Press obviously has been most influential, for its own reasons but certainly it has been most influential, in building up this, I would imagine from the Government's point of view, very frightening counteraction against the legislation, I think the Houses of Parliament have made their own contribution in the kind of opposition that has been put forward by the main Opposition Party obviously, and those of us who have made our own individual contribution. Therefore, on top of setting aside the courts and, as I have emphasised many times this is one of the things that shocks me, particularly the right of appeal to the courts. In a society such as ours, it appears that we are now getting the next step of attempting to set aside the Houses of Parliament to some extent or to reduce their importance by not giving them the right to come back to a debate at specified periods and tell the Government that this is the kind of reaction we have seen throughout the country and in the light of that then the Government must, as Senator O'Higgins said—of course they must—make the final decision. Nobody can take that authority or power or should have a right to take that authority away from them, but they are acting then in the light of what they have been told bona fide and any other way—it does not matter—by their opponents and their supporters and in the light of that then they bring in legislation, or repeat this legislation, make it work if they can, but anyway they submit it to the parliamentary process of open, full and frank debate, fully reported. We hope that that will continue in the years ahead.
One has only got to remember the case of Brian Faulkner, who is not a man to make ready submissions of his own fallibility or mistakes, and his obvious chagrin at what he realises now was a very unwise decision to bring in internment, his bona fide attempt to deal with his emergency problems. He was clearly doing what he thought was the correct thing at that particular time as the politician in charge, taking the responsibility as Senator O'Higgins has said, but it was quite clearly the wrong decision and if he had been better advised he would not have taken it.
Now that all having been said, there is something even more important here, because the debate has now shown up something particularly sinister in the background of the motivation behind the introduction of this Bill and this was first raised by Senator Owens, Senator Robinson, myself and Senator Michael Mullen, and this is the reference to scheduled offences. This means to me that this Bill could become a particularly controversial Bill. The dangers arising out of scheduled offences whereby a certain health authority or municipal authority employee may not picket——
An Leas-Chathaoirleach
Senator Browne, I think you are straying away from the amendment on the section.
I will not dwell on it. Presumably I will be able to raise it on the Bill again. My reference to it incidentally arises from the fact that I understand that the appeal to deschedule these offences has been rejected, and that is why it seems to me to change the whole complexion of the Bill, because it means the Government are quite obstinate in their determination to retain these offences as scheduled offences. In those circumstances then they become amenable——
I do not think Senator Browne heard the whole of the Minister's reply.
(Interruptions.)
If the whole thing is as simple as that, then the answer is to deschedule these offences, because from now on when this kind of legislation is introduced the Government will be trying to put into operation the seven days proposal, the various other proposals in relation to, possibly, Press control and possibly censorship one way or another, and in those circumstances the public reaction could be very considerable and that the response among Deputies and Senators would be that they would look for an opportunity of trying to put things as they see it through the community, to the Government in order to try to get them to change this legislation.
I do not see the validity of Senator Higgins's rejection of Senator Lenihan's reference to the ordinary Members not having information that only the Ministers would have. Quite obviously this is a situation which always occurs. We always come in here with much less information than the Minister could possibly have. All we are asking is that this process whereby the Minister should give us information which he feels he can permit us to have, which we have not got and which would help us to make up our minds whether he has a good case, should be retained.
One has only to see the way the Seanad divided this afternoon to realise that there were some people who shared the Minister's point of view, shared his anxiety to the extent that they voted for him, some of them abstained and some of us voted against. That reflected the whole process of debate in this House. Therefore all we are asking is that this process should be retained, that we should retain whatever we can. As a Senator said last night, every encroachment on the democratic process, on the parliamentary process, is a victory for the militarists. We should try wherever we can to resist that and to retain this process.
Whatever the arguments may be in favour of retaining this section or accepting the amendment which has been put down I think one argument that is not acceptable is the argument that is being trotted out again that nothing much is really provided by this Bill. It is only a matter of five days. It is only a matter of somebody's liberty being at stake for five days. It is only a matter so serious that the Government recognised that it would not be possible to bring it in under the law as it existed because the courts would throw it out as being unconstitutional. It is only so serious a matter that the Government found it necessary to bring in a declaration of a national emergency before they could introduce the provisions of this Bill, so that it simply is not acceptable to dismiss this amendmet as not being necessary because nothing very much was provided in this Bill. It is a serious matter. The Government or the Government's legal advisers have recognised that it is a serious matter and it cannot be dismissed as of no consequence, as being a mere technicality. What we are discussing in this Bill is a provision that seriously affects the liberty of the individual. In these circumstances should it be possible for the Government to extend it by making an order or should it be necessary for this to be reviewed every year?
I think there are very strong arguments for reviewing the position every year. This is an Emergency Bill that suggests a matter of urgency, something that is happening now, that may not be in existence in a year's time. I think it is a matter which should in any event be reviewed and renewed every year. Then, in the light of the experience of a year we would know whether the Government in introducing this Bill—with the restriction of rights proposed in it—were perhaps justified in the sense that nobody in fact suffered unduly under the Bill. On the other hand, we might find in the light of experience that the reservations and the fears of not only the Opposition but the many bodies, the many newspapers, the many people were in fact justified and that the powers provided in this Bill, even if they should be continued should be restricted in certain ways.
The arguments are very strongly in favour of ensuring that there will be a renewal of these powers every year, if thought necessary by the Government, that they will be reviewed and that the two Houses should, if they were persuaded by the Government it was necessary to continue their powers, have the opportunity of amending them, of providing certain precautions so that people affected by the Bill would not be affected even more seriously than is necessary within the provisions of this Bill. After all, what the Government are saying is that they need these powers, that the Garda want these powers and that it is necessary for security that they should be given.
The Bill has been passed. They now have these powers. What we are talking about now is no longer a question of security, it is no longer a question of whether the Government and the security forces have the powers they want, they have them. What we are talking about now is whether these powers should be circumscribed in certain ways so as to ensure that the liberty and rights of the individual are not infringed more than is necessary and that if, in fact, they appear to be infringed more than is necessary at the end of one year then we will have an opportunity of amending the situation in so far as it is possible to do so. The amendment I have suggested is a very reasonable one. It can no longer be said that those who oppose this Bill are trying to prevent the Government or the security forces from having the powers they say they want, they have them now. It is only a matter of saying whether they should be circumscribed in the certain way so as to have regard to the possible infringement, undue infringement of the individual citizens who may suffer as a result of this Bill.
I am probably in a unique position in the House in relation to this measure and indeed to the whole train of legislation set up by the motion declaring a state of emergency. I voted for that motion. I voted for the Second Stage of this Bill today. It was with certain misgivings that I voted for both. On the basis of an emergency, the evidence for and against was rather hard to assess. I made an act of faith in the Government and said, "Yes, if in their judgment the state of emergency is just, then for the moment I will go along with that". In making that concession I had a number of reservations which are very relevant to what is before us today. I pointed out, for instance, that I asked if people who are held for seven days will be allowed to have legal advice.
An Leas-Chathaoirleach
We are on section 1, amendment No. 1, at the moment.
That point is very much concerned with whether the powers given to the Government are to be renewed by Acts of Parliament within 12 months.
An Leas-Chathaoirleach
I thought the Senator was going into section 2 from his remarks.
No, it is precisely this point. In other words, I have some reservations. The second one simply had to do with whether relatives would be told. The third was in regard to where they would be detained and the fourth one was that I said I would find it very difficult to vote for that provision if it did not require reactivation after 12 months.
I have the greatest, the utmost, confidence in the Dáil, and hereafter in the Seanad, that the Government would yield to these very reasonable requests. I believe that reasonable requests have been put over and over again and have been rejected in the Dáil and of course I was in no position to know, despite the foreshadowings of the Minister's speech today, how these amendments would fare. That is why I say I am in a unique position. It could in fact be the parting of the ways for me. This far I could come because I can see that there is what is arguably a state of emergency. I do see with as much clarity, I would imagine—I do not flatter myself—as the Government, the need to put down violence, to oppose and defeat the IRA, to establish the rule of law. I am persuaded by that but I do not see nor can I be persuaded that such a radical suspension of the democratic process is needed. Therefore, I absolutely support Senator Lenihan's and Senator Ryan's amendment and I intend equally to support amendments Nos. 7 and 8 put down by Senator Mullen.
I am happy to go with the Bill as far as I have gone but if the Government reveal themselves as being intransigent on this point I will have to go into the other lobby. It is with considerable regret that I will have to do it. It looks like a divided mind on my part but I am quite clear in my mind. I have come as far as I possibly could and in a spirit of goodwill. I am astonished by the fact that the Government will not yield on matters such as this. Above all, I would like to support Senator Browne's remark about the democratic process. Of course the Minister and his Government have more information than they can safely divulge in public to us. Let them divulge as much as they can and ask for our trust from that point on. I have given my trust up to this point with regard to this Bill. If that trust was asked for from the Houses of the Oireachtas it would be given.
To make the whole thing dependent upon the will of the Government and totally dependent upon an order as distinct from a vote in the two Houses seems to me to take the thing that degree beyond the democratic process which would make me disquited. It takes it that unnecessary step closer to in melodramatic terms, what we call the police state. There is enough in the Bill and enough pretty tough things there. To be able to yield to seven days is one thing but to see that these seven days are, by Government order, going to be carried on ad infinitum as the Government wish— sin scéil eile. That is a different matter. One of the few matters which did persuade me that the thing should self-destruct after 12 months. Then it would have to be renewed. Then I would feel, as a member of a democracy, right let us see how it works for 12 months. As an ordinary man in the market place talking to his friends I could then see whether this has been satisfactory. Our views may not exactly gel with those of the Government. The Government held a majority in order to enforce it at that point. On this point I would find myself, in conscience, unable to follow the Government another inch along the line.
(Cavan): First, I want to disabuse any Senators who think that the Government are treating this legislation in a cavalier fashion. That is not the case. This is a serious piece of legislation——
It is not a technicality, is it?
(Cavan):——introduced by the Government to deal with an alarming situation outlined by me in response to the question on the Second Stage as to why this legislation was justified. I do not propose going over that again. This is tough legislation to deal with an extremely alarming situation which has prevailed here for some years back. Speaking for myself and the Government we would much prefer if we did not have to introduce it. Indeed, we will welcome the day when it is no longer necessary. The sooner the better. We believe we owe it to the citizens to protect them from violent men, whether those violent men are members of one association or another and whether organised or unorganised.
I am probably correct in saying that over 100 of Senator Mullen's members lost their jobs in a hotel in this city due to bombing. That is what the reports say. Staff was reduced by about 120. The newspaper reports stated that those redundancies were due entirely to the falling off in business due to bombing. That is the Government's position in regard to this measure. We regard it as our distasteful duty to stand between the people and violence and to protect them from violence.
The section as it stands provides that the Bill shall expire 12 months after its enactment unless within that time it is continued in force by a Government order or, if it lapses, unless it is reactivated by a Government order. In either of those cases a Government order must be made before both Houses of the Oireachtas. Contrary to what some of the Senators opposite think, if a resolution is passed by either House within 21 days the order shall be annulled and the Act shall become defunct. I am satisfied that if it is necessary to continue the Act by Government order and if such an order is put down, the Government will behave in a reasonable and responsible manner and afford time in a reasonable way to discuss the resolution. Senator Yeats said that these motions are never introduced, these orders are never annulled.
Never in Ireland, rarely discussed.
(Cavan): I can throw my mind back to the famous social welfare order introduced by Deputy Joe Brennan when Minister for Social Welfare. A motion to annul that was put down in the Dáil. There was a long discussion about it. Deputy Joe Lenehan voted against the Government and left Fianna Fáil as a result. If the Government were to take the line of refusing to make time available under another form initiated by this Government, there is Private Members' time available now every day the Dáil sits.
Ninety minutes.
(Cavan): Every day the Dáil sits there is Private Members' time available for three hours a week. That is contrary to the situation as we found it when we came into office. I repeat that if a resolution is put down and carried in either House the legislation will become defunct.
In answer to Senator Lenihan, Senator M.D. Higgins conceded that the Government would be in possession of the facts as to whether it was necessary to continue with this Bill or not. As the Senators can see, it might very well be that it would not be open to the Minister for Justice or the Government to disclose those facts publicly. At any rate, if a resolution was put down and discussed in Private Members' time, the Minister for Justice would have to come into the House, give his reasons and disclose his information.
I put it to the Seanad in a reasonable way that that is proper control. It is effective control over this measure. It cannot continue in force for longer than one year without the Members of this House and the Lower House being given an opportunity to discuss it and to call the Government to account for its operation. The process of parliamentary question is available all the time. That is the position as I see it. I put it to the Seanad that the Oireachtas have control over this measure from year to year. When it is extended, if it is, it can only be for a further 12 months.
Let us look at the amendment. I do not wish to start scoring points because I am well aware that Opposition Deputies and Senators put down amendments which they have not time to check over, and they have not available to them parliamentary draftsmen. My regarding of this amendment is that it would damage the Bill. The amendment states:
Unless previously terminated under subsection (2) of this section, this Act shall continue in force until the expiration of twelve months from the date of the passing thereof unless the Oireachtas otherwise determines and shall then expire.
I believe "shall then expire" are the effective words. It will expire after 12 months. That would involve the introduction of a measure in the Dáil to be debated there through all Stages and then come to the Seanad.
Why not?
(Cavan): I do not know what Senators opposite mean. Senator Yeats thought it was the opposite. It is very hard to answer arguments from the Front Bench when they are going in opposite directions.
It is a mere debating point.
(Cavan): I put it to the Senators opposite that if it does not mean what I say it means, it means that the Government could by order continue it indefinitely.
That is what the Bill says. The amendment states that it shall expire at the end of 12 months and that the Government can then come forward with their Bill and renew it for a further 12 months.
(Cavan): With all due respects, a Leas-Chathaoirleach, I propose to answer that argument from Fianna Fáil and to ignore what Senator Yeats has said.
If the Minister accepts the principle we will be delighted to accept his amendment on Report Stage.
(Cavan): I am quite prepared to deal with Senator Lenihan's point. The Senator is the Leader of the Opposition in the House. He says he means that at the end of 12 months the Bill would die and that we would introduce another Bill.
That is the way it was when the previous state of emergency was in force from 1939 to 1957.
(Cavan): I respectfully suggest that that is going much further than conferring on the Oireachtas the role of watchdog in regard to this Bill. In the Bill as introduced, the Dáil and Seanad have the right to control the Bill. They have the right to see that it is not continued for more than 12 months. I respectfully suggest that that is adequate and reasonable. I ask the Seanad not to accept that amendment.
There is no need to get confused about this. What we are really concerned about is making the function of Parliament as watchdog more effective than we would ordinarily wish it, by reason of the nature of this legislation operating as it will for 12 months with suspension of the Constitution for the matters contained in that legislation. The Government have recognised that fact by having this order procedure written in. If they seek an extension for a further 12 months to lay an order before the Oireachtas, it puts the onus on either House of the Oireachtas to nullify the order.
In regard to the seriousness of the legislation and the declaration of a national state of emergency, that is simply not enough. There is ample precedent for taking that point of view. A Government that was probably more concerned about the rights of Parliament and the rights of the Oireachtas in a far more difficult and dangerous time adopted precisely the procedures I am now advocating. Under the declaration of emergency in 1939 the emergency powers legislation was renewed every year and was brought before the Oireachtas in those difficult times by way of a Bill. Senator Alexis FitzGerald in the course of his contribution made that point.
We had omitted to advert to that fact that from 1946 onwards there were certain aspects of emergency legislation dealing with industry and commerce, matters of controlling imports and exports, that were renewed every year. That legislation was relatively harmless as far as individual rights were concerned. While the serious part of the legislation under the emergency powers was terminated in 1946, the other part of it, dealing with economic controls and so on, was renewed each year in the form of a Bill by the Minister for Industry and Commerce. Because the Government of the day regarded it as a serious matter, because it had in its preamble this very serious matter of the declaration of emergency suspending the Constitution, a Bill was introduced every year. Similarly during the difficult periods of the war, when the very serious emergency provisions were initiated and continued from 1939 to 1946, each year the Oireachtas met and we had the renewal of the emergency powers by way of legislation in open debate in each House of the Oireachtas.
This is not by any means a small point. This is a point where a precedent already exists. I do not think this is a matter which should be dismissed in an off-hand manner. It is a serious amendment put down to make the Government accord with the principle and precedent already established in regard to emergency legislation of this kind, on foot of the suspension of the Constitution under Article 28. In view of the serious nature of the legislation, that is the very least the Government should do by way of duty and obligation to the Oireachtas and to the public.
Senator Browne rightly said that this is a matter on which the Government have detailed information regarding security and police matters. But, on the other hand, as the Government have found out over the last two weeks, this is also an area in which the ordinary man in the street can exercise his judgment as to the need or the validity of this measure. If we regard ourselves here in the Oireachtas as spokesmen for the people outside—and that is what parliamentary democracy is all about— then I feel that we are properly interpreting the mood of the public in saying that they view this legislation with very grave suspicion. It is not the sort of legislation which they would like to see continue indefinitely by way of an order which may be very difficult to nullify. This is a matter which, if I am interpreting the public mood properly, they would like to see suspended automatically after 12 months.
The Government should put forward their reasons for a renewal of authority to introduce such a Bill for a further 12 months and hear the considered views of the Oireachtas, expressing the will of the people in open debate. It is a matter of deprivation of personal liberties and should be subject to that type of parliamentary and public scrutiny by way of full debate on the Bill. There is precedent for it already under the emergency legislation passed on foot of the 1939 declaration.
I will be very brief because I suspect that this amendment has had as much discussion as is likely to do any good.
I should like to make two brief points. First of all, regarding the Minister's query about the exact wording of the amendment, the Minister knows as well as we do that in a case like this if the Minister is not willing to accept the principle of the amendment then that is the end of it. If, on the other hand, he is willing to accept the principle of the amendment, then he has an ample supply of highly efficient parliamentary draftsmen who can bring in an amendment on Report Stage which covers all possibilities.
The second point is that this amendment, as drafted, seems to be perfectly adequate. Senator Lenihan and I are correct in our interpretation of the provision. It is patently obvious that, as Senator Lenihan has said, after 12 months has elapsed—if our amendment were accepted—the Bill has lapsed and a new Bill would be needed with all Stages and so on. Only a very incompetent Government would allow this to happen if they wished the legislation to continue. All they need to do is to come into the Dáil and Seanad, maybe after 11 months, while the Bill is still in existence, bring in a resolution to extend it for a further 12 months, and they can do this in the ordinary way without going through all the sections of the Bill. There is no difference between Senator Lenihan's interpretation and mine. Perhaps Senator Lenihan has a less sanguine view of Government intelligence that I have. But no Government who wish to continue this legislation would act in the way the Minister suggests.
On this point of the duration of the Emergency Powers Bill, would the Minister accept that the declaration of emergency and the Emergency Powers Bill are intimately linked together, that the purpose of having a motion declaring an emergency was to bring in this Bill which would otherwise be unconstitutional? In accepting that would he further accept that there is therefore a considerable link between the duration of the motion of the declaration of emergency and the duration of this Emergency Powers Bill? Therefore is it not a fair question that it is likely that this Bill will remain in annual continuance by Government order for so long as there is a motion of emergency under the present formula of the section?
If one takes a pessimistic view, as I do, about the length of time that that declaration of emergency will subsist, since it is linked to the existence of armed conflict in Northern Ireland, is it not one interpretation of section 1 that it is creating a permanent Emergency Bill on our Statute Book and that the permanence will be by an annual renewal by Government order? If that is the case, is this not a new departure in emergency legislation in the country? I would agree with Senator Lenihan that the precedents before have been for Continuance Acts and therefore involvement of the Oireachtas in the crucial decision—the decision whether to extend by Continuation Act, whether to prolong. The present formula under the section—otherwise the motion for a declaration of emergency has no meaning—is one for continuing annually by Government order the operation of this section and the existence of power to detain people for seven days. I view that as a very sad extension of the power of the Government and a diminution of the role of the Oireachtas in the protection of civil liberties.
I am deliberately trying to make my words as unprovocative and as unexaggerated as possible, but I intimately link the declaration of emergency with the fact that the Bill can be kept in operation from year to year by Government order. If one looks at the length of time that the previous declaration of emergency remained in existence—37 years—and takes into account that this state of emergency is linked to armed conflict in Northern Ireland, can we really anticipate there will be a motion terminating the national emergency in our lifetime? When will there be a degree of stability in the North which will encourage whatever Government it may be to decide to terminate the state of national emergency? What other meaning has the state of national emergency except to bring into being and continue in being the powers under section 2 of the Emergency Powers Bill?
Are we clear about what we are deciding as to the duration of the Emergency Powers Bill? I am in support of the argument that it should have a fixed duration of 12 months unless there is active Oireachtas participation in its extension, active Oireachtas participation in the criteria for extending it. That involves assessment of how it is operated, assessment of the need for it, assessment of all sort of things. The Oireachtas should be in on that assessment. It is not anything like as good a safeguard that it is the Executive that makes that assessment and that there can be a motion annulling the order as laid before the Oireachtas. We had a debate of that sort recently on the Prisons Rules. There was an opportunity to air the situation and seek annulment, and it was defeated when it came to a vote. But there was not an opportunity for the Oireachtas to hear the Minister for Justice give substantial reasons for bringing in the order and there would not be the option to hear substantial reasons for the Executive extending the order in this case. The Government and the Minister would not have to come forward with the reasons for wanting the operative section—section 2 of the Emergency Powers Bill—to continue in effect.
Because this Bill is linked with the emergency motion, I am afraid that the formula we are adopting is one of —in practice—continuance of this Emergency Powers Bill in full operation until the end of the state of emergency is declared by the Oireachtas. We ought to face the stark reality of that and realise how much we are conceding in the Bill, which is a new departure in emergency legislation, and the fact that the Oireachtas will not participate actively unless this amendment is accepted.
It is important to bear in mind that this legislation is directed at people and organisations who do not recognise the Oireachtas. That being so, I would expect the Minister to be more amenable to representations made to him by people who recognise the Oireachtas. The Minister talked in his reply about tough legislation. I can understand that, but I do not think he should be tough with the representations made to him in helping him out of an awkward situation. It is not fair and does not augur well for allaying the fears that exist in the minds of people who are not in favour of illegal organisations.
The Minister in his reply spoke about a number of people who lost their employment in a hotel because of bombing. He said he had read this in a newspaper. I was intrigued that he took serious notice of what appeared in newspapers, because they have advocated that certain things should be done in regard to this Bill and the Minister has so far not responded to what he has read in the newspapers in that connection. The excuse that was given was not the whole story. It is only right to say that a good portion of the unemployment that was mentioned can be attributed to the last budget. There is a great fear that there may be more people made redundant as a result of this declaration of emergency. This has appeared in the newspapers. We have been getting responses from abroad because of the declaration of the emergency. I would ask the Minister to reconsider his decision to oppose this amendment. As I said at the outset, it will help to allay the fears of genuine people and not subversives. We should not be attaching any labels to people because they express their concern about civil liberties.
The ingenuousness of the Government is the most striking thing about this whole debate. It appears that they came into the House originally not fully appreciating the enormity of the suggestions that they were putting to us here and in the other House. They do not seem to have appreciated the structural changes in the whole process of representative democracy which they have brought about by this legislation, that is taking the three proposals together—the motion, the Emergency Powers Bill and the Criminal Law (Amendment) Bill.
Having gone through a very traumatic experience in so far as they have come to realise that it was a monumental blunder in political terms, that they have alienated an enormous amount of support and frightened and worried people, it is possible that this may be the motivating factor in deciding that they do not want to go through it every year. It still leaves these proposals as being very serious proposals, remarkable proposals from people who purport to be defending the whole democratic process. Remember, whatever else is contained in the Bill— the extension of powers, the seven days, the imprisonment, the Army and all the other horrific measures which are proposed—this is nothing to do with what the security forces want. This is simply a request that we, responsible Members of the Oireachtas, be given an opportunity to discuss this matter and help the Government to come to a decision as to whether these measures should be extended, whether they should be attenuated, whether they should be maintained as they are.
We should not confuse the two things. We are talking now as if there was an emergency in this House. There is not. There is an emergency outside. The Garda think there is an emergency; the Army think there is an emergency; the Government believe there is an emergency in relation to what is going on outside. But in relation to this House and the whole parliamentary process there is no emergency at all. We are simply asking that we be allowed to discuss this at annual intervals. That is not going to aid any subversive organisations or individuals who want to overthrow the State. We are trying to protect the rights that the Oireachtas has. Nobody could protest that this could jeopardise the security of the State.
Is that the case that is being made by the Government, that, if we discuss this in this way each year, we are in some way jeopardising the safety or security of the State? If so, they should say so, and that they want to attenuate the powers of the Oireachtas, as they now have in relation to the High Court and the Supreme Court. Are they intent on dismantling the whole process of parliamentary democracy of the State? Senator Martin said that we are beginning a police state. They are evocative phrases. Is this what is happening? A Minister who says to us blandly that this can be discussed by a resolution and the Government will probably give us a guarantee. This is not a guarantee. I am sure the Minister gives it meaning it in every sense, but he cannot insist in a year's time that time will be given for such a resolution.
It is particularly tasteless for him to say that we could discuss these desperately serious proposals in Private Members' time. He cannot be serious when he puts forward a proposal of that kind in relation to these measures. There is no doubt that it is we who are opposing the Government's attempt to dismantle this whole parliamentary process. Nobody can say that it could have anything to do with what is going on outside.
The case I am trying to make is that we have parliamentary democracy throughout the world in which fewer and fewer powers are permitted to the members of the various parliaments. We are frightened at the positive naivety of these proposals that have been brought before us, expecting that they would pass through the House as if they were irrelevant to the lifestyle of our people as we know it, particularly in relation to their civil rights and liberties before the law. It is this tendency by the Government to underrate the seriousness of what they are doing that is the most disturbing part of this legislation.
Could I ask the Minister one question? If he has answered the question already, I apologise for not being present to hear the answer. It is a simple question which Senator Robinson asked last night. Perhaps the Minister could help us. The Minister said that it would be possible for the Director of Public Prosecutions to change what has gone on up to now, the process whereby persons who are not at present covered by the Trade Disputes Act would come under the Conspiracy and Protection of Property Act, 1875. Could the Minister give us an undertaking now that he will make sure that this will not happen but that it cannot in law happen —that the Director of Public Prosecutions cannot take it upon himself to direct at any particular time that persons at present not covered by the Trade Disputes Act can be brought under this legislation?
(Cavan): In reply to the question by Senator Browne, the first thing I would like to tell the Senator is that this offence was scheduled in 1972 by the former Government. I am not making any point of that, but the point that I am making is that Senator Browne did not even know it was scheduled until now and he holds himself as the watchdog of every cause in the country. He had every opportunity of raising it in the debates——
Will the Minister keep his cool?
(Cavan): Call a spade a spade. That is the position. It was scheduled by an order in 1972 and was not raised by Senator Browne or anybody else for one very good reason: it did not affect anybody. I told Senator Browne that it was introduced to protect the homes and privacy of judges and their families, to protect those houses from picketing and abuse. I gave an unqualified undertaking on behalf of myself and the Government to Senator Connolly that the provisions of that section, as long as it remained a separate section, would not be used against trade unionists or unemployed people engaged in peaceful picketing or peaceful marching. That is the position so far as that is concerned.
Can the Director of Public Prosecutions bring this into operation in respect of these people?
(Cavan): As I understand it, the Director of Public Prosecutions is an independent person appointed by the Government. He is independent of the Government and independent of every member of the Government.
The Minister cannot give any guarantees.
(Cavan): The Director of Public Prosecutions decides whether to prosecute offenders who are brought before him for prosecution by the members of the Garda Síochána or anybody else. He is not a policeman. He does not go out and he does not direct the police to go out. In my opinion—and I am subject to correction—he deals with offences brought before him; he decides whether or not there will be a prosecution.
Can the Minister direct the Garda to prosecute for one offence and not prosecute for another offence?
(Cavan): No. It is painful to see Senator Lenihan, as Leader of the Opposition, indulging in petty mischief. The Government could not give a direction, and never would, and that is why we appointed a Director of Public Prosecutions. We could not give a direction that the Garda were not to prosecute A for an offence but were to prosecute B. I do not see anything wrong in the Minister for Justice giving a blanket indication to the Commissioner of the Garda that this machinery is not to be used in respect of trade unionists engaged in peaceful marches or peaceful picketing.
Senator Robinson raised the question of whether there was any link between the resolution declaring the emergency and the Bill. Of course, there is a connection between the two. One school of thought suggested that it would have been possible to introduce this Bill under the 1939 resolution. Another school of thought that that would not be possible, that the Supreme Court might rule that that was not in order. The Government decided that the proper thing to do was to annul the resolution which could, and probably should have been annulled during the time of previous Governments and to bring in this resolution.
I say with all sincerity that we all long for the day when that resolution can be annulled and when this legislation can be forgotten. I do not accept the suggestion of Senator Robinson—and I do not think she is right, with all respect—that as long as the resolution is there this Bill will be renewed year after year by order. That is not so. It will only be renewed by a responsible Government as long as they feel there is necessity for it. Senator Robinson also made the case that we are trying to keep the Bill in force from year to year by order. Of course, we can have the converse of that and say that we are conferring on either House of Oireachtas the right, by resolution, to discontinue the Bill.
Let me repeat to the House and to the public, because some of these things are not understood, that a resolution of either House, a simple majority of either House will annul the order. It takes the same vote to enact a Bill, the same number of people thinking the same way.
The Opposition are supposed to oppose and they can engage in hardluck stories and can consider fantasy here and there, but the greatest guarantee that any democracy has against a malevolent or reckless government is the ballot box. There will be a general election before March, 1978. If the people think that this legislation is not right they will let us know then. That is the one day when they can talk to us not through Senator Noel Browne or anybody else. On that day they can talk direct to the Government and tell them what they think about them.
You fixed the constituencies.
(Cavan): We did not have to fix Donegal; it fixed itself. If that were so, even after the next election there would always be an election in the offing. Parliamentary parties are bound to keep their eyes on an election. Maybe that is fraternising and far be it from me to be fraternising. I can even understand the attitude being taken by the Opposition as an Opposition attitude but they are expressing unreal fears. In this Bill we, in either House of the Oireachtas, have the right to question the Government each year. That cannot be denied. In that respect we are treating this Bill as something above the ordinary.
If this was an ordinary Bill which we did not look upon as taking unusual powers, there would be no provision for annulment each year. It would simply go on the statute book as a part of our law and would remain there until some future Oireachtas revoked it. We do recognise that it is something above the ordinary, that it is seeking powers which are not normal powers. That is why we have written into this Bill the safeguard which enables both Houses to vet it and to call the Government to task on it each year.
I do not know whether Fianna Fáil want me to continue it by an order each year or whether they want me to introduce a new Bill. I have given this matter plenty of consideration and discussion and I am satisfied that the machinery contained in the section as it stands is an adequate safeguard for any reasonable person.
Amendment put.
The Committee divided: Tá, 14; Níl, 24.
Tá
- 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.
Níl
- Butler, Pierce.
- Codd, Patrick.
- Connolly, Roderic.
- Daly, Jack.
- Deasy, Austin.
- Ferris, Michael.
- Fitzgerald, Jack.
- Harte, John.
- Iveagh, The Earl of
- Kilbride, Thomas.
- Lyons, Michael Dalgan.
- McAuliffe, Timothy.
- McCartin, John Joseph.
- Mannion, John M.
- Markey, Bernard.
- Moynihan, Michael.
- O'Brien, Andy.
- O'Brien, William.
- O'Higgins, Michael J.
- O'Toole, Patrick.
- Owens, Evelyn.
- Prendergast, Micheál A.
- Sanfey, James W.
- Whyte, Liam.
Tellers: Tá, Senators W. Ryan and R. Garrett: Níl, Senators Sanfey and Harte.
Amendment declared lost.
Section 1 agreed to.
SECTION 2.
I move amendment No. 2.
In subsection (1), page 2, line 44, to delete ", or is in possession of information,".
The purpose of this amendment is to remove the possibility of a mere innocent witness being subject to the powers contained in this section. It seems to me quite possible that this section, if it is read leaving out certain lines, would read like this:
A member of the Garda Síochána (on production of his identification card, if demanded, where he is not in uniform) may without warrant stop, search, question and arrest any person if he suspects with reasonable cause that that person ... is carrying any document or other article or thing, or is in possession of information, relating to the commission or intended commission of the offence.
I am sure it is not the intention that an innocent witness of a crime should be arrested and held in custody for seven days; nevertheless that is what the section says. Intentions are quite irrelevant when we are dealing with legislation of this kind. The position is that a person could be arrested, could be detained for seven days if he was in possession of information about a crime and it is not good enough to say that it would not happen, the Garda are reasonable people and so on.
If a person were in possession of information, if he did possibly see something happening, a garda would be quite entitled to arrest him, take him into custody and keep/him there for seven days. We are putting down this amendment to obviate that possibility. If the Minister wants to amend the section in some other way in order to get the same result without the possibility of what I have in mind, then if he indicates that he will bring in some other amendment on Report Stage I will be quite satisfied. Certainly as the section stands it is capable of being abused. It is capable of being interpreted in a way which would result in a perfectly innocent person being detained for seven days and for that reason the amendment is put down.
(Cavan): The object or intention is not that some innocent witness who accidentally came across some information should be brought into custody and kept in custody for seven days. That is not the intention. That will not happen. The best way really to test a provision in an Act like this is to try to find out if there has ever been a similar position in any similar Act and if there has been such a provision to ask oneself, has it been abused, have innocent people been brought in and harassed under it? I am in the fortunate position of having a perfect precedent which shows that such a provision has been in operation for 37 years and no one has heard of it ever being abused. I will read for the benefit of the Seanad section 30 of the Offences Against the State Act, 1939:
A member of the Garda Síochána (if he is not uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or subsection of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid.
That is the Offences Against the State Act, 1939, and it was enacted on the 14th June, 1939, and has been in force since. It has been operated by Senator Ryan's party when in Government, it has been operated by inter-Party Governments and is now being operated by the National Coalition and there have been no abuses because police officers and gardaí behaved in a reasonable way. That section now goes, or at least is being suspended for the duration of the present section, and with it goes section 52. I put it to the House, and I have some considerable confidence that Senator Ryan, having put down the amendment in all good faith and having got my assurance that the intention behind the provisions in the section which are worrying them is to get at people with guilty information and not to get at innocent people, will accept the fact that an exactly similar provision has been on the statute book since 14th June, 1939, and that there is no evidence or complaint of any abuse.
I am not going to make a long speech on this but the point raised by Senator Eoin Ryan is a very valid point and the Minister has not adverted to it in that the section he refers to, section 30 of the Offences Against the State Act, is part of the ordinary law of the land and it is subject to the strictures of the Constitution. It is permanent legislation. That disposes of that point. This is an entirely different matter. It behoves the Oireachtas to be far stricter in its scrutiny of this measure because this is a measure on foot of the suspension of the Constitution for the purposes contained in this measure. We were talking about section 30 of the Offences Against the State Act subject to the supervision of the Constitution relating only to detention for 48 hours. That is one side. What we are talking about now is detention for seven days without any constitutional supervision in regard to it, and police powers relating to such a situation of the suspension of Constitution. In that situation of course it is the duty of every Member of the Oireachtas to address the Minister and the Government to the fact that every line of such a Bill must be scrutinised and parsed so that what the Executive get is the minimum they should get by reason of the very drastic and serious suspension of the Constitution involved.
Surely it is the very minimum to suggest, as we suggested in this amendment, the deletion of the words "or is in possession of information" because when the section is examined fully those six words in effect bring in the harmless onlooker and bring him within the ambit of police arrest without charge and subject to detention without charge for seven days. Other than that, the section relates only to suspicion in the garda's mind as to the commission or the intention to commit an offence. Other than those six words the section taken as a whole deals with an offender or a potential offender. The only words in it that we seek to have deleted widen the ambit of section 2 (1) to a very wide degree, indeed, to involve an onlooker who is in possession of information, a witness or harmless bystander who sees an offence being committed. All we are seeking to have deleted are the words "or is in possession of information". That type of person, by reason of these six words can be brought within the ambit of police arrest without charge and is subject potentially to detention for seven days.
The Minister is a practical man and he will appreciate that the plain meaning of those words is to widen the scope of the section to include the sort of person I was talking about. We do not want any suspicion even in this House that we are seeking to include that sort of person in a Bill of this kind, and this is not just suspicion. It is the hard reality of the language and its plain, blunt English. The onlooker in possession of information, the person who sees an offence being committed, a harmless onlooker, witness, bystander, can be brought within the scope of this section. This deletion, put forcibly by Senator E. Ryan, would make this section totally clean in that it would be quite clear that the section as a whole is dealing with arrest by the Garda of an offender or suspect offender or potential offender.
It seems to me the Minister believes that an undertaking given to us has any real value. I say that without any disrespect. It is quite clear from the intervention of the last section and the undertaking which I am sure he as Minister for Justice would give that in present circumstances the persons not covered by the Trades Dispute Act, 1906, will not be involved under the Conspiracy and Protection of Property Act, 1875. However, it is quite obvious that powers of discretion rest with the Director of Public Prosecutions and, therefore, the undertaking which Ministers give here that they will forbid it to the extent which they have that power—as the Minister talks about the independence of the Director of Public Prosecutions it seems to me rather anomalous that he should believe that he can override whatever——
(Cavan): I do not want to interrupt the Senator but I do not want it to go on the record that I ever said or suggested that I will direct or seek to direct the Director of Public Prosecutions. I did not.
I accept that point. This, of course, is the gravamen of the case which I am making, that he is not in a position to implement his good intentions, however well-intended they are. All that matters to us is the law as it stands and the structures of the State as they stand. While the Minister may not wish or have intended that in relation to the individual in possession of information, in relation to the other point which he was trying to make that for the time being, until things hot up, this Bill is restricted only to what are known as the subversives of the Provo type, it is quite clear that can change and this Bill could become a very frightening one. If there is a crime which is now scheduled, a forbidden picketing or something like that or any action taken under section 7 of the 1875 Act, people who saw the particular besetting act, picketing or whatever taking place, could be intimidated as persons with information and they then become subject to all the provisions of this legislation, the important difference being, of course, the denial of right of appeal to the Supreme Court and the daunting prospect to any individual of being taken by the Garda for a period of seven days.
That is a very frightening prospect with the possibility of one finding oneself in the custody of men who are in the minority but who we know have in the past abused the authority and power which they have.
The bystander, the person taking part in a march, protest or picket, or the person who watched a crime all come under this as individuals with information and, therefore, subject to the provision of denial of their constitutional rights and subjected to the various provisions of this Bill, including the one to which most of us took exception, being held incommunicado. If we were certain that access to lawyers, doctors, relatives and so on could be guaranteed at regular stated intervals during the seven days it might not be so terrifying a prospect. I use the word “terrifying” advisedly. The possibilities in this situation are quite unlimited for persons who want to subject an individual to the sophisticated modern torture processes of hooding, white sound, sensory deprivation and so on. Individuals having watched a crime committed, innocently of course, or taking part in one of these other scheduled offences which will be brought under the Conspiracy and Protection of Property Act could be put in fear of protest by the prospect of the provisions of this Bill. The denial of Constitutional rights and the possibility of being subjected to the terrifying experience of being simply isolated for seven days, would be terrifying to some people. Subjection to either the sophisticated or brutal types of torture becomes a very powerful deterrent against what up to now had been perfectly legitimate activities by trade unionists, workers, individuals, ordinary civilians.
Leaving aside that, saying it is not at issue at the present time, it opens the possibility of an individual being used by the Garda. I am talking now about the corrupted members of the Garda. They are a minority, and we must all accept that there is such a minority in all our professions and trades, people capable of betraying the trust given to them within their responsibilities. There is always the danger of an individual like that being used, even framed by such people, to provide evidence which is not true evidence, which is simply the evidence of an individual so terrified that he will say anything. This is the possibility as we have seen from our own experience of the recent disclosures in Strasbourg in the various torture cases.
It is very easy for us to sit here in this peaceful atmosphere but I have some experience of activities on the streets, agitations of one kind or another, protest marches, pickets and so on, and I have seen some dreadful things happening. I have seen people beaten up by members of the Garda. I have attempted to charge members of the Garda but unfortunately people were too frightened and would not let me charge them for having violently dealt with one young student. The decisions being taken here may be wrong because they are taken so far away from the action, because some people may not have a lot of experience of what can go on in a disturbed situation. I would like to ask the Minister to try to reduce to the minimum the likelihood of abuses of the kind to which we are referring.
Business suspended at 6 p.m. and resumed at 7 p.m.
The amendment proposes the deletion in line 44 of the words "or is in possession of information". The point made with regard to this is that somebody with no sinister intention, with no criminal or subversive background, somebody who committed no offence of any kind, who was guilty of nothing but being present when some kind of misdemeanour took place, could, according to section 2 of the Bill, be taken and detained for seven days. The amendment proposes that these words "in possession of information" should therefore be deleted.
I wish to support that motion for various reasons, some of them already mentioned by Senators. One of them is the humane reason that it is not impossible that somebody absolutely innocent could find himself in this horrific situation of being taken and incarcerated because he had been witness to something which was not in itself even remotely approaching a crime or a misdemeanour. The words would not be considered sinister or ominous if we had not been consistently refused the kind of reassurances we looked for, of the kind I mentioned in my initial speech when I gave my assent to the state of national emergency. That consent was provisional on certain remarks, and I refer to the Seanad Official Report, column 183 of 1st September, 1976:
...will the people who are held for seven days be allowed have legal advice?
Would this man who was deemed to be in possession of information be allowed legal advice? We do not know. The Bill certainly does not resolve that issue for us. We are assured of course of the goodwill of the Government. That is not enough.
Will their relatives be told that they have been detained?
Will the relatives of such a man, having been arrested on the grounds indicated, know that he has been detained?
The third question I asked was:
Will he be allowed medical inspection or will they, in fact, be held incommunicado for seven days in “a place of convenience”, as the phrase is, perhaps an unknown place.
We have not been reassured with regard to that either. In other words, in so far as the Bill is concerned, such a person who is deemed to be, in the opinion of a member of the Garda in possession of information, if he is taken in, is not allowed any of these rudimentary defences.
There has been a great deal of talk about the integrity of the Garda. I should like to add my voice to those of all the others who praised the Garda as a force. My sincere opinion of them is that they are an excellent police force, and I am not aware that they have committed any act dishonourable towards their cause. The point about it is that we want them to remain so. As a citizen of the State I should like to be able to hold the Garda in the same regard in which I have always held them. If the Garda are given this power, there is an implicit invitation, if not compulsion, to exercise that power, just as when in the other Bill, the Criminal Law Bill, sentences are raised there is almost a moral compulsion that sentences should be raised accordingly.
Similarly when powers such as these are given to a police force there is of course the intention that these powers be used. I do not want these powers granted in a blanket manner to the police for the sake of the police themselves and our relationship with them. The very benign relationship that exists between the Irish citizen and the Garda at present could change very quickly and drastically if powers of this kind were even suspected of being exercised by them, especially in view of the fact that the Government have already refused the reasonable request that in order to make this legislation operative after the first 12 months the Oireachtas should say "yes" to it. In other words, against the background of the three conditions I have already referred to and the fact that the Act can be renewed by Government Order, that provision is of a kind I could not support.
I find this disappointing because when I voted for the national emergency I was absolutely convinced that the Government would accept reasonable amendments. I was astonished to see them being refused in the other House, one after another. I was also astonished to see such ludicrous activity as that carried on by the Minister for Posts and Telegraphs in Washington, producing from a satchel a whole series of letters to an editor in an Irish newspaper. I was appalled by such activity. Still, I found it possible to come in today and vote for the Second Stage of this Bill in the belief that perhaps even at this eleventh hour the Government would see sense with regard to these reasonable and courteous requests for reassurances with regard to the items I mentioned. Indeed, I would not be objecting to that phrase if the Minister had in the first place granted to the House the first amendment put forward by Senators Lenihan and Eoin Ryan. In other words, if we knew that after a year we would be asked to say yea or nay to this legislation I might let is go that far. As it stands, all the reasonable, civilised demands and requests that have been made have been rejected. Therefore, I find myself in a position which is probably not unique but which I have not seen in the life of this Seanad—the position of voting for a measure on the First and Second Reading but being forced on Committee Stage to declare myself implacably opposed to it.
I am quite convinced of Senator Martin's sincerity in the attitude which he has adopted. It is an attitude which takes some courage to adopt, and if the position were as argued by him, I could have a great deal of sympathy with it. It seems to me his arguments are based on a degree of ignorance of the present position, which must be excused in a Senator who has not had any great experience in the House and who has not had occasion heretofore to do any research on this particular matter. Senator Martin very properly pays a compliment to the Garda Síochána as an excellent police force. Then he makes the case, which could be a very effective case, that he wants them to continue to be like that. While he did not use the expression, I think the cliché that power corrupts was probably what was in his mind; he wanted the police force to remain an excellent one and that is the reason he did not want them to get these powers. What Senator Martin did not know or apparently did not realise was that for the last 30-odd years the Garda Síochána have had precisely these powers.
Power to keep someone for seven days? The Senator said "precisely".
The Senator should not spoil my compliment to him by fencing with words.
It is a double-edged compliment.
They have precisely these powers of arrest where they suspect that a person has information. That is the point and that is what this amendment is dealing with. It is not dealing with the period of detention whether it be for two, five or seven days. It is dealing with the question of the power of the police to arrest when they suspect a person has information regarding the commission of an offence.
I was aware of that. I knew that the Offences Against the State Act did give that power. It was not ignorance on my part.
They have it now. This is the point I want to make.
I was aware of that.
If the Senator was aware of it, what does it make of his argument that he does not want the police to get this power because it might spoil——
The power has to be seen in the light of seven days' detention.
——the benign relations between the Garda and the public in regard to a power which they already have? Let me emphasise this because it is important that a young Senator of the genuine and sincere concern of Senator Martin should be kept right on this. It is an important matter. This is not a debating society. We are talking about State security. We are talking about something which is of vital concern to this State and to every citizen in it. We are talking about an effort by this Government to enlarge the liberties of the people by destroying a criminal conspiracy aimed at destroying this State and the people. That is what this is about. It is not any theoretical discussion about niceties in a debating society fashion, and let us keep to it.
It is all right to talk about spoiling the police by giving them powers but recognise the fact that they have those powers already and they have even greater powers in so far as information is concerned in section 2 of this Bill. Under section 30 of the Offences Against the State Act they do not have to have reasonable grounds for their suspicion and they cannot be challenged about that. Under this Bill in section 2 they have got to have positive suspicion, not a vague suspicion; they have to have that suspicion based on reasonable cause and they have to be able to go into court and satisfy a court in the event of a habeas corpus application being made that the person's detention is not unlawful because they have reasonable grounds for suspecting.
That is a very subjective matter.
The arrest of anyone is a subjective matter as far as the person who is arrested is concerned. Those are the facts. It is true that once it is proved that the arrest has been made in accordance with this section there can be no constitutional challenge to the validity of the law and the habeas corpus could not be granted on the grounds that this law is repugnant to the Constitution. It is still necessary, if a habeas corpus application is made, that the court be satisfied that the arrest was lawful. If the Garda made an arrest without having suspicion based on reasonable grounds, that would be an unlawful arrest. A court would be constrained to grant an application for habeas corpus. There is a constitutional obligation on the court, if an application is made, to inquire into it immediately. There cannot be any delay about it. Those are the facts.
I could sympathise with the argument made by Senator Martin were it not for the fact that the Garda have these powers already and have powers which are greater because their suspicion need not be based on reasonable cause, and they do not have to show reasonable cause for their suspicion. If that was the argument on which Senator Martin was relying I could go a long way with him were it not for that fact. It seems to me implicit in this argument that there is an air of unreality which must subconsciously, not deliberately, be based on the idea that the Garda or a certain proportion of them are sadists and monsters who are going to use this legislation in a way which no democratic parliament or member of a government would be prepared to stand over. I do not think that that is realistic. They have had this power since 1939. Senators are placing on record in this House their firm conviction that those powers have not been abused by the Garda. Why should we suddenly assume that they are going to abuse them now? Why should we assume, for the purpose of this debate, that a decent body of men or an excellent police force—to use Senator Martin's words—are suddenly going to be turned into a body of monsters because under this Bill they get a lesser power than they have already so far as arrest in respect of information is concerned? I say "lesser" and I say it deliberately, because they do not have to show reasonable grounds for suspicion under the 1939 Act.
They get seven days.
We are not talking about seven days.
Senator O'Higgins is not talking about seven days. That is the point.
I am talking about the amendment, maybe that is the difference between us. Some Senators apparently want to conduct this discussion on the lines of a university debating society. I do not. I think it is far too serious for that. Let us be realistic about it.
We are all agreed that we should be realistic about it.
I hope the Senator will vote accordingly. The powers are there; the powers have been used extensively in the last six years. Senator after Senator placed on record his belief that those powers have not been abused.
I would like to be an exception to that. There is evidence—it may be small—of those abuses.
Senator Robinson is an exception to many things. I do not say that in a derogatory sense. What would the procedure be? The powers being given under section 2 are powers to stop, to search, to question and to arrest, to do any or all of those. If the Garda are looking for information, is not the first thing they are going to do to question? In the event of their having reasonable grounds for suspicion that a person has information and when he is questioned and refuses to give that information, is it not only then that the next step, which is the power of arrest, is put into operation? What is the information relating to? It is relating to offences which go to the very roots of the security of this State, offences set out in the Offences Against the State Act, 1939.
We are talking about people usurping the functions of the Government. We are talking about people who, by force of arms, try to prevent the Government of this country functioning, or try to prevent the President of this country from carrying out his functions, or try to prevent any other Executive branch of Government— the judiciary, the Garda, the civil service or the Army—carrying out their functions by force of arms. That is what we are talking about here. We are talking about a person who has information and who is not prepared to disclose that information when questioned by the Garda.
All right, it may be an innocent person, a person who happened to be a witness. How far is that person innocent if he blatanly fails in his civic duty to volunteer that information to the Garda? If he does not volunteer that information to the Garda and is questioned about it, is he still a lily-white pure innocent such as Senator Martin's heart beats for? I doubt it. If that person is not innocent, what then is the most probable situation? What is this legislation directed against? It is against the conspirator who is trying to bring down this State and to harm its people, the conspirator who has information, who has knowledge that people are acting, going to act or have acted to usurp the authority of the Government by force of arms or to do any of the other acts which are set out.
A very dangerous doctrine.
The Senator can give his views in a minute. We are talking about that kind of conspirator. In order to avoid being guilty of preaching a dangerous doctrine, is Senator Lenihan going to stand aside and say that a person who has knowledge that a criminal conspirator is going to place a bomb in a hotel or a shop in this city or outside the gates of this House should be allowed to keep silent and that he should have all the protection of the bleeding hearts of this country?
Is that intended in this Bill, because that is what we should like to know about. The Minister said that was not intended.
Senator Ryan has been a Member of this House for a long time. He has been in politics for a longer time. He comes of a family that is well known in politics in this country and he is not a novice at all, and I do not think there is any value being added to this debate by that kind of interjection from him. We all know what we are talking about.
I am asking the Senator if he envisages that happening under this Bill, because the Minister said it was not intended.
Do I envisage a person being arrested under this Bill or questioned about information? Of course I do.
A witness?
And he is detained for seven days.
I am not talking about detention at the moment.
We are glad to know that. This is what can happen and, according to the Senator, is likely to happen under this Bill.
It is a very dangerous doctrine.
I will say what I have to say with my own words. I do not want any of them put into my mouth by Senator Eoin Ryan or Senator Brian Lenihan.
Be it on the Senator's own head.
Senators should remember that we are in Committee and they will have ample opportunity to speak if they so wish.
That is what we are talking about here—the criminal conspirator, the person, innocent person, if you like, who is too cowardly to give information on the one hand——
He should be kept in detention for seven days just because he is a coward?
Senator Lenihan will have to restrain himself. The Chair has already pointed out that we are in Committee.
——and, on the other hand, the criminal conspirator who has the information, who is part of the conspiracy and from whom the Garda want to get information. If we want to protect those people we can do it. We can do it with our voices. We can do it with our feet, by our votes in this House. Let that be the record by which we will be judged.
Certainly, we have had a lot of enlightenment on this section as a result of Senator O'Higgins's remarks. I am not sure of how to approach this because, first of all, we have had a contribution from the Minister which was to the effect that we need not worry about the possibility of any witness being affected by this section. We have had the exact opposite from Senator O'Higgins.
It is almost incredible that Senator O'Higgins would make the speech he did and try to avoid facing up to the reality of this Bill and this section, and not face up to the fact that what we are all talking about in this Bill is that detention which was two days is being extended to seven days. The important matter is that; it has always been that. It was necessary to have a declaration of a national emergency to increase the time for which a person could be detained from two days to five days. That has been the objection to this Bill all along.
The amendment I put down dealt with the particular aspect of that and, in spite of the fact that every effort has been made to try to confuse the issue, that is still the kernel of our objection to the Bill and that is still the kernel of this amendment. If we object to the idea that a person who is believed to have committed an offence, which is the first category dealt with in section 2, may be arrested and put into custody by a garda who has reasonable cause to believe this person has committed a crime, it is ten times worse that a person who merely has information or was a witness to something could be kept in custody for seven days. To say that because it is in the 1939 Act that there can be no objection to this section is utter nonsense because it was in the last section, in section 30. The objection to it, just like the objection to every other aspect of this section, is that when a person had information, or was a witness, under the 1939 measure the maximum period for which he could be detained was 48 hours. Now a witness of that kind can be detained for seven days. That is what we are quoting and the fact that it was in the previous measure is not relevant at all.
He could take an action if he was only detained.
The fact that there has to be a reasonable cause or that he must be suspected with reasonable cause may be of some slight help but, in fact, any member of the security forces who arrests anybody must have some kind of reasonable cause or must have some reason for doing so. This is a theoretical advantage.
I should not have to emphasise this fact but people will go on talking about this amendment as though the only thing in it was that there was a witness concerned and that because that was in the previous Bill, then it does not matter. The fact is that a witness who could only be detained for two days can now be detained for seven days and it makes it ten times worse for a person who may not be guilty of anything, whatever about a person whom a guard has reason to believe committed a crime. It is ten times worse if a person who is merely a witness is subject to these powers and subject to the possibility of being detained for seven days. That is the kernel of this section, that is the kernel of this amendment and that is why we object to it.
Now I am a little bit put off by what Senator O'Higgins has said because apparently Senator O'Higgins thinks that this is quite all right, that if a person has information then there is no reason why he should not be detained for seven days. I got the impression from the Minister that I should not be worried because, of course, that was not the intention and that would never happen. So I am not quite sure where I stand.
This whole discussion brings us back to this kind of woolly thinking, this kind of loosely-worded section which can have various different meanings and it is not good enough to say, as the Minister has said, that this possible interpretation of the section would not be acted upon, that the Minister has no intention of allowing anybody to be arrested and kept in custody merely because he was a witness. It is not good enough, as the Minister for Justice has said, that he would issue directives and guidelines and so on to ensure that the powers were not abused in that kind of way. That is quite simply not good enough. The Bill should say exactly what is intended by the Oireachtas and the Oireachtas should know exactly what it intends the Bill to contain because the Minister, however good his intentions may be, will not be there forever and it is no good relying on what the Minister's good intentions are.
The security forces are entitled to assume that the Oireachtas knew what they were doing, that the Oireachtas meant exactly what is in the Bill and the security forces are entitled to take advantage of this Bill as it stands at the present time. If a guard has reason to believe that a person was in possession of information that might merely mean that somebody might have told him where an explosion took place or that this person was merely passing by on his bicycle. On that basis, as the Bill stands at the moment, a guard would be entitled to arrest that person and keep him in custody because he is in possession of information, not in possession of information of something that was going to happen but information about something that has happened. The security forces would be entitled to arrest him and keep him in custody merely because they had reason to believe that he was in the vicinity and that he might have seen something.
Are we going to allow this Bill to go through and allow a situation where a perfectly innocent person, who was in the vicinity of something that happened and who might have information, can be detained for seven days? Of course, it may never happen. Of course, it probably will never happen but the fact is that it may happen and, according to the Bill, it could happen. It is no use talking about intentions or guidelines or anything else. That is the way the Bill reads. That is the way the security forces are entitled to interpret it and if they are in a tough spot and badly need information and think somebody has it, they are entitled to take the section as it stands there and that means that they can arrest and detain somebody for seven days because they think he might have information.
There is no use making long speeches about what we are up against in this country, terrorists and so on. We know all that. We are all in agreement on that and the measure has now been passed and the Minister has his powers. He does not have to worry any more. The Bill is passed. He has his powers. What we are doing at the moment here at this stage, Committee Stage, is not trying to deprive the Minister of any real powers but trying to ensure that the Bill which goes through is a Bill that will only affect people who really are terrorists, who really have as the guards have reason to believe, committed a crime. We are merely trying to ensure that some body who is innocent is not affected by the powers in this section. As it stands at the moment, that is a distinct possibility and if the Minister says that is not intended, then I think he should take such steps as are necessary by way of amendment. He can either accept this amendment or introduce a more sophisticated one if he does not like this one, if he agrees that this is a possibility which should be catered for. Of course, if the Minister or the Government take Senator O'Higgins's point of view that anybody who happens to have information is just as bad as the person who has committed the crime and they should all be thrown into jail for seven days, then that is a different matter altogether.
That is not my point of view.
I do not know which is the Government's view but I think the Minister said that was not the intention of the Government. Senator O'Higgins apparently thought that was good enough for anybody if they had information and did not give us any.
I should like to get some clarification from the Minister about the scope of section 2 so that I can consider the amendment being put forward. I am still slightly confused about precisely what the power is and I think it is important that we do have some clarification on it. It provides that a member of the Garda Síochána can without warrant, stop, search, question and arrest any person. Now the matter has been clarified. I welcome the clarification that section 30 and section 52 are suspended so there cannot be the sort of questioning that the section 52 powers gave, the power of requisition where one had to answer the questions and the giving of either false or misleading information was in itself an offence. I understand that power has been suspended and does not operate in relation to this.
The only other section that I can find where there is a somewhat analogous power is section 2 of the Offences Against the State (Amendment) Act, 1972, which gives power to question a person found near the place of commission of a scheduled offence which, of course, would include all offences under the Offences Against the State Act. Section 2 of that Act provides that a member of the Garda may demand of the person his name and address and an account of his recent movements and, if the person fails or refuses to give the information or gives information that is false or misleading, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.
So operating under that section of the Offences Against the State (Amendment) Act, 1972, there is power to require an account of movements and there is a fine or imprisonment for false or misleading information. If one is acting under section 2 of the Emergency Powers Bill, as I now understand it, then there is power to question and I would welcome some clarification from the Minister on what is meant by "question" in that context.
What are the powers of the Garda to question, in view of the fact that section 30 and, therefore, as a consequence, section 52 of the Offences Against the State Act, 1939 are suspended and not in operation? I had pointed out that the only other section which I could find under which the Garda have power to question for an account of movements is section 2 of the Offences Against the State (Amendment) Act, 1972 which states that where a member of the Garda has reasonable grounds for believing that a person is at or near the place of the commission of a scheduled offence or has committed a scheduled offence —which of course includes the whole of the Offences Against the State Act, 1939.
If the Garda can question but cannot question in the sense of section 52 of requisitions which the person must answer—give an account of his movements and the movements of another person and incur criminal penalties for failure to do so or for giving misleading information—what is meant by "question"? If the Garda do question and the person remains silent, which is the normal principal against self-incrimination, the right of an accused to remain silent, is it now the position that the Garda cannot further question under section 52, because that is suspended, but can detain for 48 hours and a further five days? Is that the scope of the situation? If so, in the light of the amendment accepted and the suspension of sections 30 and 52, does this part of the section have much meaning if a person cannot be required to account for the movements of another person or give information during questioning and has the right to remain silent? I think it is relevant to understanding the scope of the section.
(Cavan): There used to be a radio programme entitled “What are they talking about?” I would like to get down to that very topic here at the moment. Section 2 of the Bill enables——
A member of the Garda Síochána ...if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence...or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information, relating to the...intended commission of the offence.
I put it to the House that all those things are linked. We are dealing here with somebody who is a guilty person in connection with the thing and that we are not dealing with an innocent bystander or witnesses.
A member of the Garda Síochána may...without warrant stop, search, question and arrest any person, or do any one or more of those things in respect of any person, if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence under the Offences Against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act, or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information, relating to the commission or intended commission of the offence.
We specify the person there who is carrying an article or thing in relation to the offence. He has the guilty article or thing connected with the offence on him. Then we go on to deal with the person who has not got the article or thing connected with the offence but has the knowledge relating to the offence. I put it to the House as a proposition that that is the meaning that any court would put on it.
If a garda has that reasonable suspicion he can take that person in and that person's rights will be as they are today. In fact, they will be more favourable to him than they are today because section 52 is gone. That is the position as I see it. I do not think that any reasonable person will disagree with me.
I do.
(Cavan): I want to conclude. There is another thing or two which I feel I must say in relation to this debate. Senator Eoin Ryan said that the thing which he is afraid of—and which I say cannot happen under the Bill—and assuming for the purpose of argument that Senator Ryan is right, the Senator says it may never happen, it probably will never happen, and I go further and say it has never happened over the last 37 years. There is no use saying to me, in regard to the Offences Against the State Act, 1939, that it is 48 hours there and seven days here because I put it to any impartial person that the principle is the same and that is what is important.
When Senator Lenihan last spoke on this matter he said that the difference between the 1939 Act and the Bill we are dealing with now is that the 1939 Act is a fixed piece of legislation. It is permanently on the Statute Books.
And protected by the Constitution.
(Cavan): The Bill we are dealing with now is temporary and can be reviewed from year to year. I am reluctant to have to say this but I do not know if I heard Senator Browne correctly before the tea break. If I did not, I stand subject to correction. He indulged in a revolting tirade against the Garda. I believe that he let his imagination run riot. He talked about sophisticated methods of torture that took place in China and said either directly or indirectly that the Garda are or were capable of carrying these out. That is the impression that I got.
That is a complete misrepresentation.
(Cavan): Senator Browne nods that I am correct.
I will deal with the Minister when he has finished.
(Cavan): I did not know whether that was what Senator Browne was talking about.
A minute ago the Minister said it was.
(Cavan): I said that was the impression I got. Senator Browne will correct me. I hope the record will show that Senator Browne was not saying what I thought he was saying. I want to reject it in its entirety, in common with the other Senators of this House who have spoken in very favourable terms of the Garda. I put it to this House that we are simply following a precedent that has stood the test of time for 37 years. I am prepared to argue with anybody that my interpretation of subsection (2) is that one step follows the other: “Has committed is committing, is about to commit, is carrying a document or thing connected with, or has information relating to...”—this is all part and parcel of the train of guilty events. These are the people we are trying to get at, the people we are trying to protect the citizens of this State against.
Even if the Minister had not indulged in that piece of offensive misrepresentation, I proposed to take up the reference made by Senator O'Higgins to this. Those of us who have said that we believe that the main body of the Garda are honourable men doing a very difficult job as fairly as they can, left ourselves open to this misrepresentation. Then I dealt with the incident in which I was involved in relation to the dogs and the American Embassy. I repeated that the vast majority of the gardaí that night behaved with exemplary patience and restraint. It was a minority on that night who came in and behaved in a barbarous and unnecessarily violent way.
(Cavan): I was referring to the Senator's contribution immediately before the tea break.
I then referred to an occasion when I was in College Street Police Station.
(Cavan): I did not. I referred exclusively to the Senator's contribution immediately before tea break.
I did not hear it and consequently did not refer to it.
I said nothing before the tea break which could be interpreted as an attack on the Garda. I have always been careful because I know so well the kind of misrepresentation that can take place on these occasions. I invariably refer to the predominantly fair-minded attitude of the majority of the Garda and the fact that there are within all our professions, trades and occupations a minority who betray the standards which are observed by the others. The Minister went on to introduce the classic or effectively felon-setting innuendo in his reference to China. I was not referring to China at all. I was referring to Belfast. These are our own people. What the Government pursued in Strasbourg were charges against an Irish police force. These charges were justified at Strasbourg. This Government were so convinced of the brutality of these Irishmen in the North of Ireland—to fellow Irishmen—that they are now deciding to pursue these charges further. I do not agree with anybody who says that it is only possible for this kind of thing to happen in Belfast or China and not to happen in our own country.
Last night I read a detailed statement made by a member of the legal profession in court in respect of abuses in the 48-hour rule, which the Minister for Justice said did not happen. He said we were exaggerating when we said it did happen. I then read a statement of complaints made by this solicitor about the treatment meted out to him by members of the Garda when the young men were held. These were the charges made. As far as I know, they have not been investigated fully. If they have been investigated fully, they have not been denied on behalf of the Garda. If this has not been done, then I suggest that the Minister has failed in his duty to the Garda if he has allowed these charges to be made in open court, not by the people whom the Minister dismisses as suversives or fellow-travellers, but by a member of the legal profession.
The sententious humbug in which the Minister indulges, and which is supported so ably by Senator O'Higgins, is to suggest these things cannot happen. My contention is that they can happen. The most disturbing part is that it is now possible to do these terrible things to an individual held in custody, and nobody can prove that these things have been done. The Government and their supporters are asking for powers, which, if they must be given, should be given with safeguards. That is what we are asking for. Having had to concede the point of the seven days I am now asking for some objective authority to which individuals can appeal —some authority over the Garda in their new situation.
That is in this amendment.
I was replying to the charge made by the Minister and the Senator that the Garda are sadists and monsters. None of us said that the Garda are monsters. That is a gross perversion of the truth. The Senator has been here long enough. Having lectured this young Senator in front of me for his age and inexperience, it cannot be said of Senator O'Higgins. He has been here a very long time and he knows that this kind of imputation against myself——
I did not make it. I shall speak in a minute.
It is so easy to say. I am not fighting for my own preservation—I sincerely hope I shall never find myself in this position— but I feel it is our responsibility: we are all party to this legislation. This is the position that the average unfortunate German found himself in during the last war: if you do not speak out against these things because you yourself do not feel you will be subject to them, then to me you are being a moral coward and you are evading your responsibilities as a public representative.
Of course, the simplest thing to do is to talk in laudable terms about the Army, the courts, solicitors and the Garda and everybody else. We can all do that, but the difficult thing to do— and in my view the correct and honourable thing to do—is to draw attention to these ugly facts of life in any of our societies. It is not a special Irish evil. As we know, many countries in Europe and outside it use these methods for getting information when they are really frightened and need the information badly. The British newspapers have supported what was done by the RUC. The most allegedly responsible newspapers have supported what was done by the RUC.
I must intervene here to say that I consider that the Senator has replied at adequate length to the point made by the Minister. I would ask him to turn his attention to the amendment which is before the House.
I do not share the Minister's contention when he read out:
...or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act, or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information relating to the commission or intended commission of the offence.
Another interpretation of that part of the section is this. There can be a person who is carrying a document. There can be a person who is carrying a bomb or other article for carrying out an act of violence. There can be a person in possession of information. Three different people. The person in possession of information relating to the commission or intended commission of an offence—let us stay with the commission of the offence—is the person who saw the offence committed. That person has information relating to the commission of the offence, even though he is a completely innocent bystander. There is nothing to rule out that as a reasonable —if we may use that very abused word—interpretation of that section. That then brings us to the new position we have of a Bill which was introduced not to create any new crime, which is an unusual thing in itself, but to extend the powers given to the police in certain circumstances.
The point I was making earlier is that many people who are not subversives in the Minister's earlier sense, Provisionals and so on, but who could be considered to be subverting the power or authority of the State by interfering with or refusing to carry out an essential service—the various employees of the State services, power light, transport, health and so on— can be brought in under this kind of legislation. This is now established. The Minister made it quite clear that he can make any declaration he wishes to the Director of Public Prosecutions but that the Director of Public Prosecutions can ignore his direction. Either he influences him or——
(Cavan): I must correct the Senator. I never claimed the right to speak to or at, or to give a direction to the Director of Public Prosecutions.
Exactly. All the undertaking the Minister gives us are completely useless, invalid and without any effect. They are simply good intentions which can have no influence whatever on the way in which this law can be applied in future in relation to people who are not covered by the Trade Disputes Act. In these circumstances we now have added the extraordinary position that a spectator to a crime committed can become a criminal under this legislation. Having been designated as a person who has information, having watched the crime, he is then amenable to all the subsequent penalties involved in this Bill, particularly detention for seven days because the Garda——
The Minister's presence is required in another place. We are now within 15 minutes of the customary time for adjournment, so it is a matter for the House what it wishes to do, suspend the sitting or adjourn to tomorrow morning.
I do not think there is any point in bringing the Minister back for a few minutes. I suggest we adjourn until 10.30 a.m. tomorrow morning.
Progress reported: Committee to sit again.
The Seanad adjourned at 8.20 p.m. until 10.30 a.m. on Thursday, 16th September, 1976.