Senator Eoin Ryan and I have tabled amendment No. 9 which is dealt with in principle by the amendment which has been moved by Senator Michael Mullen and supported by Senator Higgins. As far as we are concerned, like the two previous Senators, we feel very strongly that this matter of principle should be fully aired and debated here. As far as the law is concerned, on the Minister's own admission when replying to the debate here on the emergency motion on Wednesday, 1st September, at columns 203 and 204 of the Official Report, he said quite specifically "that the law was in a vague state". Later I will be quoting in extenso about this.
It is not good enough that the law should be "in a vague state" on a matter as fundamental as this and, as far as our party are concerned, we fully support the point of view expressed by Senator Mullen and Senator Higgins. For that reason, in order to ensure clarity of debate, we will withdraw amendment No. 9 and fully support amendments Nos. 7 and 8.
We have argued at length about the whole principle of the introduction of this legislation and the declaration of a state of national emergency and I do not propose to go over that argument again. I strongly support, and we will argue this point out at some length, the argument that matters contained in these amendments are fundamental in regard to an individual's right, so fundamental that they should be made part of the basic law of the State, not just in regard to this legislation but in regard to any legislation. Senator Robinson has already referred to this aspect and said it might be more appropriate to other legislation.
If the Minister does not feel inclined to accede to the amendments on this legislation, I would ask that guarantees be given that the sort of rights envisaged in these amendments be written into our permanent law because, although we have disagreed with the Minister on a fundamental purpose of the Bill, the extension of detention and the abrogation of the Constitution so as to extend detention from two days to seven days, the Minister may possibly have a point in doing that. We disagree with him. We think that the Government have committed a gross misjudgment in introducing this measure at all but the Minister may, according to his lights, think that it is necessary for some reason that he and the Government have conjured up to extend detention incommunicado from two days to seven days. What we want to ensure by these amendments is that, while such detention is taking place it should not be incommunicado and that, while such detention, or any detention, in this civilised State is taking place, there should be availability to a medical adviser of the detainee's choice, a legal adviser of detainee's choice or a relative. In the case of a minor, and this has been referred to by Senator Mullen, access to parent or guardian should be written in.
There is no point in suggesting, as the Minister has suggested, that the ordinary law of the land obtain in regard to these rights. It may seem extraordinary, but there is no specific law on this aspect. If constitutional rights are suspended and there is no specific law it means that as far as anybody in detention is concerned— this may not be the intention—without any legal instrument and without the protection of the Constitution he has no rights in regard to access of relative, solicitor or medical practitioner. These are the facts.
I am a believer in the plain meaning of the section and, if there is statutory provision giving such rights, I challenge the Minister to produce that provision. There is no such provision. In the Constitution there is a general right under Article 40 and there is, of course, a right under the Convention on Human Rights, to which we are a subscribing party under Article 6, but we are going to derogate from the Convention on Human Rights shortly, as the Government have stated, and the Constitution as far as this Bill is concerned is suspended and there is no existing law, whatever the practice may be, specifying that a detained person has the rights being sought in our amendments and in Senator Mullen's amendment. If the Minister declines to write these into the law we will have a Private Members' Bill here seeking to have them incorporated into general law. This is a matter that needs to be rectified because these powers of detention are being taken by the Government. The vagueness is clearly shown in the reference to which I referred earlier. At column 203 of the Official Report of Wednesday 1st September, Senator Robinson said:
Could the Minister clarify whether the person held for the seven days would have his legal adviser present on being questioned by the Garda?
Mr. Cooney: Whatever rights he has now to have his legal adviser present, he will have under the new Bill.
Mrs. Robinson: The Minister is aware that there is an unresolved point about the right to a legal adviser?
Mr. Cooney: If it is an unresolved point this Bill does not purport to resolve it. Whatever the law is at the moment will continue to be the law.
Mr. Yeats: Does the Minister not know what the law is? The Minister must know what the position is.
The Minister's reply here is very relevant:
Mr. Cooney: There can be occasions when the law is not resolved and when the legal position cannot be explicitly defined. There are certain legal situations which stem from the common law which is a mixture of judicial precedent and custom. Over the years as these customs grow, judicial decisions are given in succession, putting glosses on earlier positions. The contemporary situation changes. The circumstances in which an earlier decision was given by the court changed with the passage of time and the legal decision which was relevant to a particular period might not have precisely the same relevance to another period.
It is in that context that I say the legal position is unresolved and the law may be and often is uncertain. Now they are the Minister for Justice's own words.
Mrs. Robinson: Would the Minister be prepared to ensure that legal advisers could be present when there was a questioning of a person during——
An Cathaoirleach: There will be ample opportunity to explore this at a later date, and perhaps it might be left to the Minister.
This is the later date we have here now.
Mr. Cooney: We can have a Committee Stage debate on the Emergency Powers Bill when we come to it. What I am dealing with are the broad principles of some of broad criticisms made of the powers proposed to be taken by the Government.
What is very relevant to a constructive debate here is what the Minister then stated, and I quote him again:
It is in that context that I say the legal position is unresolved and that the law may be and often is uncertain.
That is just not good enough in the context of a situation where we are extending the period of detention from 48 hours to seven days. We are suspending the Constitution in regard to the operation of that detention. The Minister says there may or may not be the right of admissibility on the part of a legal adviser. The law is uncertain, is unresolved. It is not good enough that the law should be unresolved and uncertain in this area. As the Minister rightly stated there—he is being very frank and honest, I will say that much for him—it is all a matter of a judicial interpretation of rights. But that judicial interpretation of rights in so far as this Bill is concerned is suspended because the Constitution does not operate. The Constitution does not operate and there is no specific statute to cover the situation.
Having said that, is it not a very rational stance on the part of the Oireachtas, particularly on the part of the Seanad here today, to suggest in the amendments before the House that this position be rectified? If we rectify it in the manner suggested in Senator Mullen's two amendments, Nos. 7 and 8—the first one guarantees access to a solicitor of the detainee's choosing and access to a registered medical practitioner—in the case of the solicitor at least once a day; in the case of a registered medical practitioner at least once every 48 hours; and, in the case of a minor, whom we had not included in our amendment, to permit access to parents. Amendment No. 8 is to ensure that the Garda should inform within an hour of arrest the next-of-kin of the person being detained.
It is high time this type of basic guarantee was written into legislation. Heretofore, it may not have been fundamental, in that the limitation of 48 hours obtained. But in a situation where we are going to have detention of the order of seven days, the period is relative. People may say there is no difference in principle between 24 hours or seven days. Of course there is a difference. There is a difference in practicality between being held incommunicado for 24 hours, or 48 hours and being held incommunicado for seven days. The very fact that the extension of detention is being sought highlights and accentuates the urgency of these amendments.
If there is to be any attempt by the Government to show some degree of humanity and concern in this matter, I suggest that it be in the area of these amendments. If for some legal technical or drafting reason the Minister may not think it appropriate to incorporate amendments of this kind in this legislation I would say, as a very minimum concession to the basic aspirations which I am certain all right-thinking people would feel in this matter, the Minister should give a guarantee to this House that the principle of these amendments will be incorporated fairly soon in some other appropriate legislation. That, at least, or an assurance at minimum of that, would be required now that we have highlighted this matter, on the Minister's own admission, a serious matter about which, he says, the legal position is unresolved and the law is uncertain. It may have been a position which was glossed over in the past because of the 48-hour limitation on detention but it is one that can no longer be glossed over, in view of the serious nature of a seven day's detention and the further serious aspect of a rearresting procedure following on the seven days', to provide for a continuing type of seven days' detention. We will have more about that on another amendment.
But, in this type of new situation, surely the guarantees sought in these amendments should be written into this legislation. It is not a measure that would require a lot of drafting. We are quite clear about what we require. The Minister will say, I am sure, that it has, as a matter of practice, been done anyway. Surely we can get that assurance from the Minister, that if he cannot incorporate it into this Bill—which I press very strongly that he do—he will, with his advisers as a matter of urgency, prepare legislation in the form of a very simple Bill to come before the Oireachtas in the next few months, guaranteeing these very basic rights.