Emergency Powers Bill, 1976: Fifth Stage.

Question proposed: "That the Bill do now pass."

Mr. E. Ryan

The position we are in on this Bill is that we opposed it at the beginning very largely on the basis that we had reason to believe that there were precautions in relation to the powers given in this Bill which were not going to be taken into consideration by the Minister. We discussed the Bill in full and put down amendments in an effort to prevent anybody who was subject to the powers of this Bill from being in a position where their human rights and liberties were affected. Our efforts to improve the Bill in this way were of no avail.

This Bill can be looked at from two points of view. On the one hand, there was the security point of view, that the security forces wanted the Bill and considered it necessary to have the powers of detaining a person increased from two to seven days. On the other hand, there was the point of view, even on the part of those who voted for the Bill at the beginning, that even if it was necessary there should be certain reservations and precautions built into the Bill to ensure that those who were detained would have certain rights.

The Minister has been very convincing, persuasive and adamant that he must have the powers, but he has been anything but convincing or persuasive in regard to the precautions which many people in the House considered were necessary.

If some of the amendments had been accepted, although we would still have been unhappy about this Bill we would have been a good deal happier than we are at present. There has been a complete blind eye as far as the Minister is concerned. He sees it entirely from the point of view of what is necessary from the security aspect. He does not seem to acknowledge that there are other aspects of this Bill which are equally important and possibly in the long run even more important than the powers he seeks in the Bill and which he has received in the Bill. Consequently, we are in the position on this side of the House that the attitude of the Minister leaves us no alternative but to oppose the Bill, to oppose it because nothing in it has been changed. We voted against it initially. Nothing has been changed in the way we thought was necessary. None of the precautions that we thought necessary has been embodied in the Bill, and consequently it is a Bill which has, from our point of view, a lot of very bad features. Even if one accepted that it was necessary to have these powers, the fact that the other features have not been embodied and that we have not been met to the extent of one comma in this Bill means we have no alternative but to oppose it.

Dr. Browne

It is indeed a sad day for the Oireachtas that we should be passing this Bill in which are incorporated many fundamental dangers to the structures of our society. I say this genuinely because the measure has entailed complete reassessment of an earlier judgment. I genuinely regret to see that a Minister whom I have always believed to be an enlightened liberal democrat attempting to justify completely reactionary repressive provisions. In this Bill we are committing a grave assault on the fundamental civil rights of our people. The Minister's defence of the cause he was trying to establish was so thoroughly bad as to convince me that he is carrying out a dirty job for somebody else. That does not exculpate him for what he is doing. We still could assume that he, as the agent, would probably not be party to this kind of legislation.

The big disappointment to all of us has been the apparent failure of those who have spoken for the Bill— many of whom are distinguished jurists lawyers, legal men, and on their record men of liberal attitude, men with whom I had the honour of sharing in struggles of the kind I am still engaged in—to speak against these assaults on the democratic freedom of our people. However, we have had a very enlightening debate and the same can be said of the debate which took place in the other House. I cannot remember another occasion when I got so much satisfaction watching the process which I value so much —the right of free speech, the right of an individual to hold his point of view, without fear or favour and to allow other people to hold directly contradictory views.

The process of the cut and thrust of different views and attitudes has educated a number of us. The sad truth is that we are to be deprived on this very serious issue of that right in the future. We will be discussing a resolution put down but which obviously cannot be used to change in any serious or fundamental way the main provisions of the law. What is even more ignominious is that we will be discussing it in Private Members' Time with all the limitations implied by that. We have a gross extension of the right of the State to take an individual into custody, a guilty individual, and more important, an innocent individual, and hold them in custody for seven long, fearful, frightening days. Can anybody here imagine himself being subjected to that kind of treatment by the officers of the State for whom, incidentally, I have some sympathy because this responsibility is now left entirely to them and not to the politicians? We are imposing this odious task on them rather than through our Minister for Justice.

We have been denied the various amendments put forward by the main Opposition party and by Senator Mullen. We have been denied what we believed to have been perfectly reasonable safeguards. Accepting that the seven days proposal was inevitable in the light of the Government's intransigence, the safeguards against the dangers that we see in the seven days detention, the dangers of abuse in the circumstances of the pressures which will inevitably arise in our society, when the social, economic and political situation deteriorates sufficiently— these safeguards which the House has asked for, particularly this evening, have been denied by the Minister.

We have the request to establish the rights of each one of us—we are all simply citizens. There are some queer quirks and changes in politics. We can look back to the unfortunate 1916 generation and the horror of their ordeal by civil war. Who could have foreshadowed that? Any one of us might find ourselves the victim of this kind of legislation. That is not the reason I am pleading it. I am pleading it for all citizens—that they should have the minimum protection of right of access to their legal adviser, the right of access to parents in relation to the minor; the right of access to medical adviser, and have these as of right established in law. The Minister has refused to accede to any of these safeguards.

I regret, but I must conclude that the sole purposes of this Bill are: first the isolation of the individual for the obvious reasons of protection of witnesses and the safeguarding of evidence: and second—whether the Minister denies it or not it comes through throughout this debate—the right for prolonged interrogation of varving degrees, depending on the circumstances and the state of society at the time. Whatever the Minister may say about the integrity of the Garda—he could not say more than I have said about the broad mass of Garda—this is open, unless there are safeguards, to abuse by the minority. We are in a most remarkable way failing to learn from the realities of centuries of oppression how little effect this kind of process will have and, even more immediate, failing to learn from the failure of our fellow-Irishmen in the North of Ireland in their introduction of brutally severe repressive laws which gave consolation to the terrorists and won sympathy for them which had not been there. I know this from having been there in 1969 in Gerry Fitt's house when the people were asking for protection by British troops. How that is all changed now.

We are learning nothing at all from the disastrous experience of the Northern Ireland authority, both in relation to the army and more importantly in relation to the RUC. As men and women, I suppose members of the RUC, are not any much better or any much worse than anybody else.

Looking back over our history it would be a particular optimist who assumed that we are not capable of the same kind of brutality. I accept my responsibility as an Irishman and I am saying this as much about myself as anybody else. This is something I know from my own professional knowledge: that any one of us, given enough provocation, can behave in a way which would shock any individual who looks on himself as a normal member of society. We appear to be taking much the same road as they did. This legislation is an attempt to solve the political problem by introducing repressive laws. That is not the way. Fifty years of experience of repression, repressive laws piled on repressive laws; jails full, jails empty, jails filled again, young men executed, assassinated, punished in various ways. Why can we not learn from history that this kind of legislation, this kind of repression, simply breeds the response of counter-repression?

I must finally assume that the real purpose of this Bill is to give the authorities (1) the power of isolation and (2) and the power of interrogation, which is the power I fear most, without some safeguards of the kind we have put forward here in the various amendments and arguments we have advanced to the Minister tonight. I deeply regret the passing of this piece of legislation.

Mr. Alexis FitzGerald

I would not dare to emulate Senator Browne's gift of oratory—for that is what it is— his ability to express his passionate conviction which, I assure him, I believe is real. I have in my own way, out of a sense of duty to the people of Ireland—all of Ireland, the Fourth Green Field as well as the three and a bit we have—to express my profound disagreement with him on the matter of judgment as to our situation. I agree—I have stated this on the Second Reading—that it is a sad thing that we have to have, as I believe we have to have, this legislation

I do not think repression, in the long term, will ever be the solution to the problems of this country. Despite the description which Senator Browne has given us of the legislation which had to be enacted and re-enacted by different Governments, I believe all of them were justifiable because there are fruits to be shown from what can be described as repressive legislation. If you use a particular type of language it can be more properly described as protective legislation, protective of the true liberties of the great mass of the people of Ireland: the liberty not to be intimidated; the liberty not to have their lives extinguished; the liberty to say what they like, no matter how armed those who dislike the opinions expressed may be, no matter how powerful their ability to invoke the traditions of the past, to produce the lessons of their school masters which Senator Browne properly condemned as one of the sources of our troubles.

We can all look back on 54 years at least, nearly 55 years, of self-government and what have we got? We have plucked out of a civil war a free democracy. How many of them survive in the world? I feel jealous of Senator Browne's rights to speak his opinions and do what he likes subject to the law, properly enacted in accordance with the people's will, expressed in free elections. How many of them have that achievement to look back on? I value very much all the contributions in this House, whatever they may be, in whatever direction they may go, whether in disagreement with a judgment I make, or a view I form, of the representatives of the two universities. Long may they be here.

All the writers I have read recognise as a total necessity for the survival of the free speech and liberties of the great mass of the people the democracy which they want. Senator Browne who is not always entirely thoughtful in some of the language he uses, and that is all I say by way of criticism at the moment, talks about a "so-called democracy". I just do not think he thought that one out as well as I would wish him to. It is a very real democracy and its test is this finally. It can put the Government out. There has been talk of the suspension of the Constitution. This is a gross misuse of language.

In other countries there are members of the law who are fences, but this is the description which, if they get it, destroys their repute among their colleagues. All the weight of their professional tradition prevents them becoming fences, prevents them from cheating. I would suggest that all the weight behind this force, to whom we owe a great deal, lies in their continued devotion to peace, which is not a static thing, which is a dynamic thing, which recognises the different characters and the different positions of the people whom it is their duty, cast upon them by us, to investigate as to their positions, if they have reasonable cause to suspect they have committed or are about to commit an offence, et cetera, et cetera.

It is all spelled out before every Senator in the House. It is not necessary to quote the section in full. That is not to say I do not agree with Senator Browne that it cannot happen here. Of course it can happen here but we must make a proper judgment in the light of what we know about existing Ministers and their supporters and the criticisms they get from their supporters in this House and the opposition with which they are faced, well expressed from many of those who spoke.

Senator Ryan, perhaps, expressed it best when he judged the two matters of security in which he thought the Minister was convincing. I attach importance to that judgment. Senator Ryan is a very experienced person. He doubted whether the Minister had allowed enough for the sense of infringement of liberties. I am in a different party to Senator Ryan but we agree on very much. But we disagree on this. He knows me well enough to know that I would not be standing up here tonight if I did not genuinely disagree with him. Besides that, there are plenty other places in this House for me to be if I disagreed with my Minister and did not want to express the disagreement on a matter of such great importance.

It is a matter of judgment. People have talked about the taking away of rights. What, in fact, have we done here today or are we doing now? We are acting as that great imperial Parliament acts every damn day. We are acting by virtue of the resolution that has been passed by both Houses as if Parliament were supreme. What if we are? In this Bill, which is all I am entitled to talk about, what have we done? We are proposing to extend, presumably on advice given to the Minister, who comes from the liberal tradition—let me say to those who criticise him for his actions and speeches in December, 1972, that he is part of what Senator O'Higgins described in this House on several occasions as the liberal wing of Fine Gael and there are two wings. Sometimes I find myself closer to the breast than to the wing. Senator Higgins will be allowed to speak, indeed encouraged to speak, certainly by me.

Mr. M.D. Higgins

You are attributing words to the Leader of the House which were, in fact, mine.

Mr. Alexis FitzGerald

I am attributing words to the Leader of the House which I heard him utter myself. So, perhaps Senator Higgins will allow me to continue to talk about the Leader of the House and not, perhaps, the future Leader of the House?

Mr. M.D. Higgins

I am very sorry. I am glad the Leader of the House is coming along.

Mr. Alexis FitzGerald

I have been deflected from what I want to talk about at the moment. The fact of the matter is—and this is the most important point made by a number of speakers throughout this debate, and it is a very valuable assembly even if one must go through this kind of thing occasionally—that we had a free expression of views. Nobody has been inhibited. My back can be exposed and will not be found to bear the mark of a whip of any kind. We have spoken freely. But there are these admixtures, I would suggest, in all parties with different emphasis. The fact of the matter is that the Government cannot introduce legislation which goes beyond the distance their political supporters elected to these Houses are prepared to go. The most important point made in this debate was— and I hope that nothing which was said in my absence today has affected that matter—that there should be no alienation through misunderstanding, resulting from any interjection from Senator Lenihan, of the true nature of this measure.

This Bill, when enacted, will have one slight difference to the British. Why we should always think we are worse if we differ from the British I cannot for the life of me understand. Even the very presumption of innocence is a very narrowly held Anglo-Saxon notion, very much criticised by the great philosopher of the liberal tradition, Bentham, who saw no conceivable justification for presumption of innocence if you were engaged in the administration of justice. We are doing in this Parliament today what the British did. I am not saying that we should be imitating the British but I am saying that we are faced with an infinitely greater problem that they are.

The IRA, the suppressed organisation, the unlawful organisation, does not pretend to be the British Queen or the Imperial Parliament or to represent the true traditions of Britain— from the point of view of the British they are a bloody nuisance who kill people in Birmingham, Manchester and London. What are this bunch doing? They are trying to silence us. I will be damned if I will be silenced by them; be damned if Senator Browne should be silenced by them; be damned if Senator Ryan should be silenced by them or Senators Martin, Connolly or Michael D.—as I shall call him, helpfully—or that any other Member of this House should be silenced. That is what they are trying to do. They represent a far greater threat, and they have done.

The Bill has been improved by the general debate and the Press has played its part there; not that I am given to praising the Press or that I intend to do so now, but there has been a free debate going on there, largely based on misunderstanding of the kind that one generally expects. We have had an improved set of measures, an improved package, improvements I accept as being genuine and important.

What is a law about? It is to cure a mischief, and the mischief is an attempt to take away the liberties of the people. A democracy has to have the necessary power to preserve these liberties and it can do that only if it has the support of a public who understand the measures that are being taken. This is a short-term measure. For the future I would not mind seeing a Committee of this House, or of the two Houses, established to see how over a long period we will cure what is, to use language that Senator M.D. Higgins would approve of, a socially delinquent group. Now that socially delinquent group, Senator Browne said, are to be referred to their environment and their——

Mr. M.D. Higgins

That is a distortion of professional language. I would not dare utter a distortion of Senator Alexis FitzGerald's professional language although it confuses me.

Mr. Lenihan

For the whole discussion in which Senator Higgins——

Mr. Alexis FitzGerald

We are dealing with a socially delinquent group. I do not think Senator Browne would disagree with that. He would ascribe different origins to it. We have to solve that over the long term and after this debate I will recommend him to the consideration of many writings on the subject.

For my part I commend this Bill to the House on this Fifth Reading.

Dr. Martin

I will be brief as there are voices more weighty than mine ready on my left to speak. I agree with Senator Alexis FitzGerald that there are a great number of different views not only within the House but within different parties and among those people of no party. For instance, I find myself with constant admiration for the attitude of Senator Browne, above all for his profound sensitivity towards the rights of the individual and his profound and compassionate understanding of people who could be described as socially delinquent groups. I thought for a moment that he was referring to the Cabinet but after a while there seemed to be someone else he was referring to.

However, my attitude towards this Bill is rather different from Senator Brownes'. To my shame, I cannot claim to have immersed myself as deeply as he has in the sufferings of disadvantaged people. My attitude would be much more rough and ready, much more pragmatical and ultimately less subtle than his, and perhaps less concerned. I believe in law and order and I endorse what Senator Alexis FitzGerald has said. I am proud that we have built up in Ireland a civilised society based on democratic principles. We still have that and this Parliament is a sign of it. That this Bill is being debated in such depth is another symptom of it. In other words, I do not see ours as sick a society as a great number of commentators, some of them here in the House, would see it.

However, I find my disenchantment with the Bill based on a growing sense of ambivalence, almost of equivocation, certainly of ambiguity, a certain kind of shiftiness and mystification on the side of both Ministers who have been here. I will yield to no man in my admiration for the present Minister for Justice. One of the things he must be praised for is the indomitable courage he has shown in the face of an enormous threat to the country; and in facing this armed threat he has shown great political skill up to now. He has isolated the IRA. He has them on the run, and he has done that with enormous skill. I compliment him on that.

However, I think that he has faltered in that skill with regard to these measures. First of all, we were asked to say whether there was a state of emergency and I asked myself that question. It took me a long time to answer it. After the killing of the British Ambassador and the attack on the Central Criminal Court as well as the drift towards anarchy as evinced in the bank robbings, the killings, incendiary bombs, post office robbings and so on, I thought there was an arguable case for declaring a state of emergency and I voted for that.

The other House was debating the same motion at the same time so we had to look forward a little and foreshadow the first Bill that was to come consequent on the declaration of a state of emergency. This Bill before us now was circulated to us. A great number of people in this House said that they could consider supporting this second Bill provided certain humane provisions were built into it. There were people in the Labour Party who said "No" to the state of emergency; there were people who abstained from voting on it but I as an Independent Senator said "Yes" and I continued to say "Yes" until we came to the Second Stage of the Bill today because I did not know, and there is no way of knowing, how the Government will deal with amendments until the Committee Stage is reached. That is the point at which I began to vote against the Government.

There is the question of whether persons detained will have legal advice. Will their relatives be told? Will they be held incommunicado? Will it be in an unknown place? Will the Bill lapse after a year? The Minister got endless signals from the Seanad and from the Dáil on these and he remained pretty intransigent, and I found myself faced with the fact that I would have to vote against the Bill. I had hoped to vote for it but I really cannot.

I have mentioned equivocation. Will there be interrogation? This question was asked over and over again. Of course there will be interrogation. What the hell is the Bill for except to bring people in and interrogate them? I approve of that. I approve that people who are justly and reasonably suspected should be interrogated and I find it deplorable that the Minister will not come out and say: "Yes, there will be interrogation." That is what the police do. That is how they collect evidence and I would approve even seven days' interrogation and that honestly, to be stated in front of us all, provided certain humane safeguards were built in such as visitation by doctors, relatives and legal representatives. The process of interrogation is the process of any police force and why can it not be admitted? I am not talking about torture. I am talking about questioning. I am talking about isolation. We get all kinds of shifty and equivocal answers to the questions: "Will they have a doctor? Will they have a legal man?" We do not know. The law is unresolved. Why can we not resolve the law? Why did we not resolve the law?

I could not feel more strongly than I did when I said that I would vote for the following reasons, that there is a state of emergency, that there is a new and particularly gruesome and calculated attack against the people as distinct from the institutions of Ireland and against the institutions too. I do think that the moment has come for the final thrust against the men of violence and a measure which would only last for 12 months with the built-in restraints and provisions that I have mentioned would not be too much of an affront to our democratic institutions. I stand on that.

These very, very reasonable requests made by the Fianna Fáil group, made over and over again by Senators on both sides of the House, were relentlessly turned down, not only were they turned down but extremely equivocable and ambiguous answers to them have been given from beginning to end. I do not understand what is happening on the other side where a straight question —will there be questioning of these people brought in?—is not answered. What kind of "ejits" are we? Of course there will be questioning. Can that not be said? If there was not questioning it would be nearly worse; if a policeman sat there and did not question a person detained for seven days, it would be a kind of Chinese torture. That would be a worse kind of intimidation. Why could we not have straight answers to the question? It seems to me that as it went on and on the thing became more murky, more and more mystification descended around it. In other words, my arguments are rather different from those of Senator Browne, and every man here probably has different views on the matter, but I found that extremely distressing, and in the heel of the hunt when one after another of these questions was relentlessly stonewalled and refused I found myself in the situation of saying that I would like to vote for this Bill; I am behind its intention. I would like to see these men of violence defeated. I will even permit the Government these seven days, but I will not permit them seven days in which they can keep a man incommunicado without his relatives knowing, without a doctor knowing, without a lawyer knowing, or without anybody knowing necessarily, where he is. I am sorry I will not allow that but I would have allowed the rest.

I think the Government for once and the Minister stand indicted for an extremely maladroit handling of a very important national issue. I think in the first place anyway it should have gone to the Leader of the Opposition; it should have been right across the board and he would have got the state of emergency declared in a day. Now it will bring the police into disrepute, the whole Bill, and in fact almost ourselves. This is why it is so important to say this and to put it on the record that really this legislation cannot go through with the kind of defence it has got unless we stand up and at least show that there are numbers here in the House who find certain aspects of it quite distasteful and unacceptable. Therefore, instead of being able to vote for a Bill which I think is basically reasonable, and 90 per cent of which I approve of, I have to vote against it, lock, stock and barrel, root and branch, because the Government have left me no alternative.

Mr. M.D. Higgins

The comments I make on the last Stage of this Bill will be very brief indeed. I began my own contribution on this day with an appeal for caution and an appeal for fairness on both sides of the House. I asked that the people who spoke against the terms of this legislation would not be branded as supporters of the Provisional IRA. I asked as well that we would not ever, at any stage during the debate, seek to score points for party political advantage which might distract from the very serious debate which was afoot.

Senator Alexis FitzGerald is a Senator for whom I have a very great respect, one of the Senators whose speeches I always read, but I find two things disturbing about his speech. The first of these is that in a long delivery he suggests that Senator Browne is all right for oratory and rhetoric but that is all. Then in his turn in a long and eloquent denunciation of the IRA Senator FitzGerald says: "The IRA are trying to silence us". He once again resurrects this old, old bogey by which people like myself who have expressed grave reservations about this legislation will be whipped. That, Sir, is unfair and that ill becomes somebody who knows better. It is now necessary for me this evening at a time I had not intended to speak to say once again that I am not a supporter of the Provisional IRA, and it is not for purposes of indicating support that I have made any of the comments I have made in this debate.

Mr. Alexis FitzGerald

Not for one moment did I suggest that.

Mr. M.D. Higgins

I will be here tomorrow all day and I am willing to be educated. I want to tease out what is involved by this notion of complimenting a person for oratory or for rhetoric, to compliment a person almost for intelligence and its implication for this Bill in response to debate on all of its Stages. It is patronising at its best and it is dishonest at its worst; it is to say that the person has an eloquent argument, but it need not be taken seriously. Of course, a consistency for which I compliment the Senator, it is related in its distortion of the truth. Senator Browne is sensitive to the needs of socially delinquent groups. I suppose professionally, because of what I am engaged in, I would be also tagged with the same label. We never appealed in all of this debate to the rights of socially delinquent groups. We spoke about the rights of the citizenry in general. My own two speeches so far spoke about the rights of citizens not only in present times but in future times. It was not a partisan concern. It was a general concern, and a general concern for the quality of law.

The question I raised was that of balancing the intentions of the occupant of a Minister in the Executive of the day against a guarantee of a Constitution, which transcends a particular generation. It is so wrong at the end of a good debate to try to revive the old tarnish of the worst kind. The argument that has been prosecuted by many of us here within the labour movement has been out of concern for the general rights of citizens. We bring to this House, however badly or well, our own experience as citizens and our own practice. We draw in different ways from that experience, but to suggest that we only represent those people is so very wrong. Another aspect on which we made an appeal, one after the other was on the subject of the civil liberties. We said we were in no way making allegations against the Garda Síochána. Then a rhetorical question is asked by those who are not one of us: Is it to be thought that the Garda Síochána will betray their repute? Who said they would betray their repute? We said that their repute must be copperfastened in the public mind by good law. No person who stood here in defence of civil liberties made any allegation against the Garda Síochána except to say that they were like any other community of workers in the State in that a tiny proportion of them might commit acts of which the majority might not approve. Taken altogether, what have we at the end of the day?

The IRA tarnish is revived. The notion that we are attacking the Gardaí is revived. The notion that, after all, we are airy-fairy people is revived. The notion that we are really speaking about the rights of socially delinquent groups is offered as a distortion. All so unfair in the second House of the Legislature. Therefore it becomes necessary for me to end my speech by saying in a few words what we were about. It is right to say we differ from the perspectives of Senator Alexis FitzGerald. We do not see repressive legislation as protective legislation. Correct mark scored for that one.

It is also true that we have not read the same books as the good Senator, for example, somebody who has read more in the past than in the present. All the writers whom I have read recognise the necessity of legislation such as this. What a partial presentation of literary experience. The main thrust of literature has dealt with the great transitions in life, be it from youth to age or from beauty to less than beauty, or something else. It has never dealt with these conditions except to destroy them. How fascinating that somebody who would speak about the requirements of men and of law being just for all citizens would be regarded as rehtorical and as a good auditor and that a distinguished lawyer who has said that all the writers he has read recognises the necessity for such laws as this would not be regarded as somebody who was a good orator. The Senator sells himself short. He is a very good orator and he is very good at rhetoric but he will forgive us if we insist that law must be subjected to scrutiny in the interests of all the citizenry, not only in this period but in future time. It was his own colleague in the other House who said that judgment will be by the longer lines of history. That is no special group or interest.

We have deliberately, in this debate so far, tried to keep it on that level to ask ourselves what is the quality of what we are doing now as law. We have put oursevles beyond the position of saying who will occupy the Minister for Justice's chair at any time. It is irrelevant to our argument who will occupy the Minister's chair at any time. That is why again and again an insistent theme of what we have said has been that a ministerial assurance, in so far as it is personal and limited in time, is no adequate response for the assurances we have reasonably sought in scope and duration for these importunate laws.

An Cathaoirleach

Before I call Senator Lenihan I might point out that it is past the customary time at which the House adjourns.

Mr. M.J. O'Higgins

The Whips have decided that we sit until 10.30.

Mr. E. Ryan

I take it that that decision is on the assumption that the Second Stage of the next Bill will not be concluded at that time?

Mr. M.J. O'Higgins

There has been no agreement that it will be concluded. It is hoped that we will make progress with it.

An Cathaoirleach

I take it the agreement is to sit until 10.30 if necessary but not later?

Mr. E. Ryan

On the assumption that this Bill will conclude shortly and that we are going to start the next Bill, I want to make it clear that there is no agreement that we would go beyond the Second Stage of the next Bill.

Mr. Lenihan

The Fifth Stage of this Bill has stemmed from an unfortunate miscalculation and misjudgment on the part of the Government is regard to what is required to be done to meet a situation. I was Minister for Justice for three and a half years. I realise the type of advice which is given to the Minister for Justice, the action which needs to be taken and the balance that has to be held.

What any civilised Government does in a democratic State is to seek to deal with subversion and violence in the most effective way possible within a reasonable civilised umbrella of legislation and powers. That being the objective, what was the situation facing the Government two months ago or whenever they were coming around to a decision to introduce the resolution abrogating the Constitution and the consequent Bill which we are discussing? The situation was that they had offences against the State legislation approved by the Constitution. I want to emphasise that because some people do not apprecitae it. The Offences Against the State Act, 1939, approved by the Supreme Court, has been in accordance with the Constitution. The Act of 1972, under section 3, deals effectively with the main problem. This is the situation that faced the Government. I am only dealing with the politcial judgement aspect of it. Faced with that situation and with the undoubted problem of violence and unlawful organisations in our community, and with the activities mentioned by the Minister leading to the assassination of the British Ambassador and the bombs in Green Street courthouse, a security response was required. The security response should have been an intensification of existing security arrangements and an overall guideline for the courts by way of substantially increased penalties within the existing list of offences.

That is where, in the sense of political judgment, the Government should have gone without raising this ridiculous and outrageous scare which has done nothing but divide our community in a serious way. The opportunity was there. The Criminal Law Bill is one with which the Opposition party are in agreement, subject to the question of the Army, about which we have serious reservations. We are in agreement with that Bill as amended in Dáil Éireann. That type of Bill should have been brought in in the first instance. There was no need for this legislation. It is a gross act of political misjudgment. I am not just speaking as a member of the party to which I belong. I say this very deliberately. I am speaking on behalf of the members of the SDLP as well. They have officially expressed this point of view to me as representatives of the responsible minority in the North of Ireland and they view this as an act of gross misjudgment. If the Minister thinks I am not being straightforward about this he can check out what I am saying having met the people concerned.

Responsible Army and Garda personnel concerned with security have the same point of view. The whole area of security in the difficult state in which our community finds itself, both North and South, is one that should be handled in a sensitive manner. I do not mind being tough when one has to be tough and I fully support the Minister in regard to the penalties under the Criminal Law Bill which we shall be debating shortly but it is very dangerous when we are seeking to establish, and enhance a reputation as a democratic State, that has regard for a Constitution, for laws and for respect for the individual, to introduce a Bill that is so totally unnecessary in the context of our situation. This is where political judgment comes in. If there were thousands of people being slaughtered around us, if a Lebanese situation existed in Dublin, Cork or Waterford, then we could declare a state of emergency.

Mr. Markey

Let us not be petty. They will make another mature decision at the next election and that is their business. They are a very sophisticated electorate and in regard to this matter they have the gravest reservations. It is primarily on this question of deprivation of human rights that they are most anxious. We as a people have been conditioned for hundreds of years in regard to what the psychology of deprivation of liberty means. This measure to deprive people of their rights for seven days, without recourse to the normal facilities they should be entitled to, is one that does not wear well with the public. It does not wear well with any intelligent student of the whole area of human rights.

Senator M.D. Higgins and Senator Browne support my case on the basis of a sincere and devoted attachment to human rights. I share that attachment but I should like to add to it a degree of common sense. I realise the exigencies which face the Minister for Justice and the Government of the day. I cannot see why they should bring in this divisive measure at this time when the matter could have been dealt with in the course of ordinary legislation for which they would have had the fullest support.

In order to prevent this kind of situation arising again, and causing such discord in Parliament, in the media and among the people generally, we should not be so foolish—in the governmental sense—to create a confrontation situation on a basic matter involving the suspension of fundamental human rights and involving this type of legislation. Why should this be done? We are a small country. All the Members of the Oireachtas are agreed on having a decent democratic republican society, a society in which we are reasonably free from social stress and tension, a society in which we can organise ourselves reasonably effectively, having a social and republican conscience—in the correct meaning of the word because that word must never be left to the people of violence to adopt for themselves.

Why should we not be able to handle this type of situation without having the kind of divisive debates which have been taking place for the last three weeks? It is in this area that I am suspect of the Government's intentions, this is the area that gives the impression that a stunt is on. We all share a common concern in this area. We, on the Opposition side, shall demonstrate this concern by supporting the Government in the next debate. Therefore, why create the division? Either the Government's motives are suspect or else it is plain stupidity. There is no rationale. In charity, I will take the view that it was just plain stupidity.

If people with hubris wish to exercise their power in government in this manner, it is time to consider how they should be corralled and controlled. One of the ways—I offer this as a suggestion which should be considered either by this Government, some future Government or by an all-party committee—is that in the future we cannot and should not be enabled to pass a resolution of this kind unless by a two-thirds majority of each House of the Legislature. The irresponsible behaviour of the last two weeks induces me to put this forward as a constructive suggestion. It would mean that no Government, in reality, could even do this sort of thing in a cavalier manner because it would need to have the support of a percentage of independents or the main Opposition.

I appreciate the indulgence of the Cathaoirleach in this matter, but I make this suggestion because I feel strongly that some restraint of this kind will have to be written in to keep back mad dogs and people who seek just at the drop of a hat to renegue on the Constitution, on the declaration of the state of emergency, and in particular on the substantial diminution which is involved from two to seven days in human rights in regard to the deprivation of human liberty without as we have suggested the introduction of some basic restraints.

Senator Martin made a very civilised stand for which he was rebuked in a very fascist-like attitude by the Minister for Lands this morning. Senator Martin in a very constructive manner voted for the motion and voted for the Second Stage of the Bill but wanted the proper restraints written into the Bill so as to ensure that whatever measure emerged in regard to detention would at least be circumscribed by civilised controls. For that stand he was treated as I just described this morning by a Minister of the present Government. That is indicative of the attitude of mind. The terrifying thing in regard to the exercise of power is that we are giving it to people who have lost their nerve and have lost all sense. This is government by reaction. It is a very serious matter which can be dismissed by Senator FitzGerald who I notice was totally absent this afternoon when this most fundamental series of amendments were being moved and debated.

Mr. Alexis FitzGerald

That is a little unfair. I remember a number of absences.

Mr. Lenihan

If anything, what we we were talking about this afternoon in regard to the restraints on detention involved in the amendments put forward is the basic core of real protection for the citizen. With regard to these matters, there was no contribution from the Fine Gael Party in this House. I regard that as a very sad thing. I regard the two amendments moved by Senator Mullen and the amendments in my name and Senator Eoin Ryan's name as being the most fundamental last bastion protection amendments involved in the series of amendments here before the House and there was no contribution in regard to the matter from the Fine Gael Party. It is very sad to see this party reverting to the sort of party from which it started.

Mr. Alexis FitzGerald

I hope your party do not do the same.

Mr. Cooney

I will commence by extending to Senator Lenihan the same charity that he offered in his assessment of us. In that regard his contributions here in these debates invariably suffer from the fact that so many of us know him so well. It has been suggested that this legislation represents a sad step and a bad day for democracy. The answer to that has been very eloquently and fully given by Senator Alexis FitzGerald. It is a sad thing that the circumstances of our times forced this legislation on us. It must be a matter for some pleasure that this legislation is being introduced in an entirely democratic way using the democratic process, subjected to the full glare of publicity and subjected to the most close and certain analysis. There is nothing secret being done or proposed by the Government. This is not an executive act not answerable anywhere. This is to be contrasted with the last time that the liberty of a citizen was interfered with. In 1957 in a situation that had not any of the elements of seriousness now unhappily existing in this country, the reaction was not to come into Parliament and invite debate or come into Parliament to put a limited measure before the Oireachtas for its assessment and its judgment or to invite the media of the country to report line by line for the education of the people of the country what was happening. It is pertinent at this stage to recall so that our sense of proportion and balance is maintained that the reaction at that time was to make a proclamation—an executive act purely and simply. As a result of that proclamation made the day after the Oireachtas rose when there was no hope of it being challenged here for the entire length of a long recess, powers were taken to detain people not for a maximum of seven days but indefinitely and without any rights whatsoever.

To show that was not, to use modern jargon, a once-off notion or that this could be dismissed as being the thinking of the executive for the administration in 1957, I have to recall that so short a time ago as 1970, when the Government immediately preceding this Government was in office, the Government solemnly proposed to this State that internment would be re-introduced. That was a Government of which Senator Lenihan who has been crying here for democracy and human rights was a member.

Internment does not involve coming in here having the matter examined and teased out by parliamentarians and having it exposed to examination by the Press. It is an executive act that can be done behind closed doors, literally at the stroke of a pen and liberty is gone. That was solemnly proposed and proposed on a television broadcast because there was threat of kidnapping. I suppose there was a certain wisdom in shaking the fist before anything happened but we are here in this situation where there have been these serious incidents. I will not go over all this ground again but they culminated in two incidents that had a different and horrifying dimension. Our international standing was struck at by the murder of the ambassador, The very administration of justice was struck at by the explosions in Green Street. In recognition of those two climatic events and a series of lesser events preceding them, and in recognition of the ever present and, unfortunately, not diminishing but possibly increasing state of armed conflict in Northern Ireland and its palpable effects down here in terms of the identity and place of residence of perpetrators of many crimes down here, and the way the cult of violence rampant up there has infected the activities of criminals down here and made them more violent and extreme, the Government, not as a political gesture, not as a piece of window dressing, but fully conscious of their obligation as the temporary guardian of the institutions of this State and of the freedom of the citizens asked the Oireachtas to declare a state of emergency.

On foot of that state of emergency the Government are proposing to the Oireachtas, in the full glare of publicity and daylight, this limited measure that requires the immunity granted by Article 28. It would have been much easier and it would not have surprised anybody if the Government had introduced internment. There was a general expectation that in the aftermath of those atrocious events this might be the Government's response. If that been the response this Parliament would not have the privilege of coming and debating human rights and their curtailment in this very limited fashion. It is important that a sense of perspective and a sense of balance be maintained in regard to this whole area. It is important, too, that democrats in this time under the pretence of considering themselves to be enlightened democrats do not actually become blinkered democrats and have so narrowed their view of democracy and their view of what is happening around them that they fail to see the enemy coming up from behind and from the side.

Some of the speeches made in the course of this debate indicate to me that very sensitive and concerned people are, unfortunately, for whatever reasons, blinkered and, therefore, not seeing in its entirety the world in which they are living. Perhaps they prefer to be blinkered. Perhaps they want the luxury of the narrow view because it shuts out unpleasant things. Those of us who are temporarily charged with responsibility for maintaining our institutions and safeguarding our freedoms cannot afford the luxury of a narrow view. We have to see democracy and society as they are, warts and threats and all. Seeing that we have to react as we, in our judgment, think fit. We have been trusted to make that judgment by the electoral process and we have no fear of seeking a vindication of that judgment in due course.

It has been suggested that this measure represents, as Senator Lenihan so extravagantly said, the abrogation of the Constitution and the setting aside of the Constitution. I dread to think what impression he gave to the foreign visitors to whom he spoke on the subject of human rights when these are the views he is expressing here. The Constitution is not suspended. The Constitution is not abrogated. This must be said over and over again because the contrary false assertion is continually being made.

Mr. E. Ryan

It is in one respect.

Mr. Cooney

The position is that the power taken under this Bill to detain for seven days and the Bill in which it is taken are immune from constitutional challenge. That is the beginning and end of this so-called suspension of the Constitution. That is an eventuality that the very Constitution itself, the very repository of our freedom and our safeties, envisages and anticipates. It recognises a situation could arise where that might have to be done. To that limited extent there is constitutional immunity from challenge, an extent limited to the particular Bill which, in turn, is limited to this particular power to restrict a citizen's liberty for up to seven days without charging. We must get both our perspectives and our proportions right.

It was alleged in the course of the debate that the powers given in this Bill to be exercised by the Garda could lead to an alienation of our Garda from the people. I do not know why anyone should put forward that proposition because there has never been anything whatever in the entire relationship between that force and the population for the past 50 years or more to give the slightest credibility or the slightest sustenance to that particular argument and I regret to say that that argument was put forward by drawing a false analogy between this State and an adjoining jurisdiction where there are clear reasons why there was such an alienation and all that stemmed from it. Our Garda are integrated with our community. They are part of our community. They are not identified with any particular section, sector, class or political faction. They identify completely with the people because they are of the people; they are themselves the people. There has been nothing whatever in their entire conduct in the discharge of their duties since the foundation of this State that could give rise to anybody now suddenly feeling that, because of this limited power they are given in this Bill, they will suddenly go berserk and so conduct themselves that they will alienate and set at nought this tradition built up over the last 50 years. They are a highly disciplined force, highly sensitive as to their role within the community. I am peculiarly in a position to know their thinking and feeling on this matter and I can assure the House that I gladly, and with complete trust, approve of their getting the powers proposed in this Bill.

This leads me to comment very critically on something Senator Lenihan said. I do not know the status or the strength of the information that led him to say that there was a Garda and Army point of view totally opposed to these powers. I must qualify that again by repeating that I have no indication, and Senator Lenihan did not give us any indication, of the status or the strength of that particular view, whether it was just gossip or in what way it came to him but, as he has said it here publicly, I must comment on it lest it go unanswered. With regard to the Army, this is not a matter for the Army at all. With regard to the police, it is a matter for the police.

The justification I gave for coming before the Oireachtas with this measure was that the Garda had convinced me and, through me, the Government that they required and needed this measure in order effectively to strengthen their hand in their fight against terrorism and gangsterism. I repeat that and that is completely at odds with what Senator Lenihan purports to have heard and what he advances here. What he advances can be described at best as mischievous and it is certainly contrary to the facts. I state that quite categorically.

He also made reference to the views of the SDLP Party of Northern Ireland —that they are opposed and they consider that the Government have made an error in proposing this legislation. I respect the views of that party. Certainly we all respect the views of that party, and they are entitled to whatever view they please, but their views can no more divert us from this course than their views that the Fianna Fáil position of calling for a declaration of intent in Northern Ireland placed them in the same camp as the Provisionals deflected Fianna Fáil from continuing holding that view. In the same way, we will continue to hold our view while respecting their right to criticise it.

What has worried Senators chiefly with regard to this legislation has been the rights of a person detained under it with regard to legal access, knowledge of his whereabouts, the rights to have a doctor visit him. On the question of medical access, when it was first raised I felt it carried an implication that it would be necessary by virtue of the detention. Lest that implication be not finally removed I want to take this opportunity on Fifth Stage once again to refute it categorically. I have said sufficient about the traditions and standards of conduct of our Garda to be able to say completely and convincingly, in the knowledge that this is what the people know, that this implication has not a shred of truth to substantiate it. There is no reality whatever in it.

This provision in this Bill does not take away in one iota the rights which citizens have in those areas. The rights which they have in those areas are guaranteed by the Constitution. They are part of their constitutional rights and it is my opinion for us to attempt now to start defining these would lead us into a very murky and difficult legal area. I indicated here, and I say it again, that it is my considered opinion that the first assessment would have to be consideration of whether the rights of citizens are more properly vindicated and protected by leaving the position as it stands, where those rights are guaranteed by the Constitution or the position of the citizen is improved by attempting to define these rights. That is the first examination. It is an examination which I will get under way. That point must be cleared and, as of now, my feeling is that the position as under the Constitution—and bear in mind that that is the position which has pertained since 1937 and right through the entire currency of the 1939 Act, which provided for people being deprived of their liberty for up to 48 hours—is amply safeguarded. Can any Senator say to me that there has been a widescale deprivation of rights, a campaign or contention looking for rights of which people have been deprived, or that there have been abuses of citizens? No Senator can say that to me. We must take account of the reality of life as we find it and not of the theories as we think it might be in some abstract way.

This, again, is possibly the blinkered and luxurious view, the failure to look at the real world. I am quite satisfied that the apprehensions expressed here, genuinely expressed, but which have snowballed, are misheld and are not genuine apprehensions. I point to experience, in the first place, and to the Constitution in the second place to sustain me in that view. This measure is a proper measure, adequate for the situation with which we are faced. It is a measure of reasonable response by a Government concious of their democratic obligations, conscious of the traditions to which they succeed. It is a measured and adequate response and holds the balance adequately and correctly between the need to safeguard democracy and, at the same time, take account of personal rights. I commend the Bill with confidence to the House. It has been suggested in some way that it should not have been a matter of contention at all. My short answer to that is—the Government did not make it a matter of contention.

Question put.

The Seanad divided: Tá, 22; Níl, 13.

Tá

Boland, John.
Codd, Patrick.
Connolly, Roderic.
Daly, Jack.
Deasy, Austin.
Ferris, Michael.
FitzGerald, Alexis.
Fitzgerald, Jack.
Harte, John.
Iveagh, The Earl of
Kerrigan, Patrick.
Lyons, Michael Dalgan.
McAuliffe, Timothy.
McCartin, John Joseph.
Mannion, John M.
Markey, Bernard.
O'Brien, William.
O'Toole, Patrick.
Owens, Evelyn.
Prendergast, Micheál A.
Sanfey, James W.
Whyte, Liam.

Níl

Browne, Noel C.
Browne, Patrick (Fad).
Cowen, Bernard.
Dolan, Séamus.
Eachthéirn, Cáit Uí
Garrett, Jack.
Hanafin, Des.
Keegan, Seán.
Lenihan, Brian.
Martin, Augustine.
Mullen, Michael.
Ryan, Eoin.
Ryan, William.

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

Question declared carried.

Seanad Éireann debate - Thursday, 16 Sep 1976

Emergency Powers Bill, 1976: Fifth Stage.

Tá

Níl

Seanad Éireann debate -
Thursday, 16 Sep 1976