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Seanad Éireann debate -
Thursday, 16 Sep 1976

Vol. 85 No. 6

Emergency Powers Bill, 1976: Committee Stage (Resumed) and Report Stage.

Debate resumed on amendment No. 2:
In subsection (1), page 2, line 44, to delete ", or is in possession of information,".
—(Senator E. Ryan).

The relevant section of amendment No. 2 is the one involving the deletion of the phrase "or is in possession of information". The arguments put forward for its deletion are impressive enough to really carry the point, that it is the kind of phrase that could catch within its ambit the innocent onlooker. Taken in conjunction with the other provisions of the Bill, such an innocent bystander could be detained for seven days. The point I want to stress with regard to this—it is one that was raised very strenuously by the Leader of the House yesterday, who kept insisting that this should only be seen in isolation as a phrase in itself— is that that phrase in itself would be quite harmless. There would be no point, and I imagine there would be no intention on the part of anybody on this side of the House, either of the Fianna Fáil group or the Independent Senators, in objecting to it at all if it did not come in tandem with so many other draconian measures within the Bill.

Similarly, the Leader of the House yesterday gave a rather emotive speech imputing to those of us, and particularly to myself, towards the end of the speech—I do not think he really meant to do it—that objection to this and other aspects of the Bill has sprung from some kind of sympathy with men of violence. My position is unique. I voted for the emergency powers—I did that in goodwill—and I voted on this Bill. In other words, I voted for the state of emergency and I voted with the Government on this Bill up to Second Stage, and it was only at that Stage that I could find out whether these reasonable amendments were being accepted or not—the amendment involving, for instance, whether or not the man or woman held would be allowed legal advice, whether the Judges' Rules would apply, whether the relatives of such a person would be informed, whether the person would be held in communicado or not and whether the Bill would have to come before the two Houses of Parliament at the end of 12 months.

I should like to quote something I said earlier, because of the reproaches I received yesterday from the Leader of the House in these affairs. Having spelled these out in my speech on the motion for a declaration of national emergency, I went on to say on 1st September, 1976, that these are precise and important aspects of it:

I want to make this clear. If these conditions were fulfilled, I think that I would tend to vote for it. I would vote for it 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 that 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 have an open mind on the matter at this stage and I look forward to hearing the Minister's views.

In other words, I was waiting to be persuaded. It seemed to me that the Government were more or less on the right tack but that a number of modifications of the Bill were necessary.

I followed the Government, in good faith, up to this point but as these have been systematically rejected in the Dáil, as a guillotine has been brought down on the debate in the Dáil and as the Minister stands firm against all of these, especially this question of the possession of information, I see no alternative but to vote against the Bill for these reasons. I find myself otherwise in favour of the spirit of it.

Cavan): We had a fairly full debate on this yesterday evening. I pointed out then, and I want to point out again for Senator Martin's benefit, that the Bill changes nothing except the right to detain a person for seven days instead of two days. All the other rights of the individual in custody are preserved, remain intact and have not been interfered with in any way good, bad or indifferent.

I argued yesterday with Senator Robinson, among others, on this amendment. I believe I convinced Senator Robinson that my argument was logical, that one has to take this part of the entire section together. It says that a member of the Garda if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence under the Offences Against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act, or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information relating to the commission or intended commission of an offence, may stop, search and so on. Here we have the person who has committed is committing or is about to commi or is in possession of a document or thing or of information in relation to the commission or the intended commission of an offence. In any ordinary language that is one train of events— the person who is committing, who has committed, who is about to commit, who is carrying a bomb or other thing in relation to it, or who is in possession of information. There is no intention there to get after any innocent person. In the words of Senator E. Ryan —if my argument is wrong and if his argument is accepted—in relation to the possibility of detaining an innocent person, that it may never happen. He went on further to say that it probably would never happen. I go further still and say that under the Offences Against the State Act, 1939, it has not happened in the last 37 years. That should be sufficient for any reasonable person.

I do not want to raise the temperature in this House, but I cannot help remarking that Senator Martin protested too loudly and too often that he supports this Bill in principle, that he supported the resolution to establish the emergency, that he voted for the Second Stage of this Bill, but now he is proceeding, as far as I can see, and has so declared his intention to vote against every section of this Bill and to support every amendment to fillet it. The Senator said he assumed the Minister would accept this, that and the other. I suppose it is not appropriate to refer to the other House, but the Senator voted recently for the Second Stage of this Bill after he knew the attitude of the Minister for Justice to the Bill. I think the Senator protests too much and I suspect where his heart really is in regard to this matter.

Would the Minister care to specify where my heart is supposed to be?

(Cavan): I develop my thoughts in relation to this as I see the Senator's reaction to the debate. The people have to be either for or against this legislation. There is no use trying to ride two horses; there is no use trying to blow hot and cold; there is no use in trying to run with the hare and hunt with the hounds. That is all I want to say about that.

I put it to Members of this House that the provision in this Bill is no more than a re-enactment of the provisions of section 30 of the Offences Against the State Act, 1939, which has given no trouble over the last 37 years. Senator E. Ryan said it may not give trouble and it probably will not give trouble. I say the best possible test is that it has not given trouble in 37 years and I ask the House to reject the amendment.

Amendment put and declared lost.

I move amendment No. 3:

In subsection (3), page 3, line 8, after "station" to insert "or"; and in lines 8 and 9 to delete ", or other convenient place".

It is a well-known fact in the evolution of law that one of the most significant advances that has been made was that the law was made certain. That prompted me to put down this amendment. I want to be certain about this section. I believe it is very much in the interests of democracy that the law is made certain.

Having regard to the remarks made by the Minister I want to say that I am not attempting to fillet the Bill. It is reasonable at all times in a democracy to entertain the expressions of opposition and not jump to conclusions and feel that a person is trying to ride two horses.

This section would suit the situation well enough if the words I am asking to be deleted are taken from it. Because there has always been a fear about the possibility of people being kept incommunicado I believe if one is going to be detained for 48 hours it should be possible to find a Garda station or a prison to hold that person or persons. I do not believe there is any safer place. I have been at a loss to ascertain what is meant by a substitution for a Garda station or a prison. That type of inquiry must be answered. We are not challenging the fact that a person is to be arrested, held in custody, brought to prison to be held in custody or brought to a Garda station, but I would like to have the purpose of the phrase “other convenient place” explained. It is not as if we have a big country. Even taking into consideration the length of our Border, I believe we should be able to find a Garda station to hold a prisoner if he is going to be detained for 48 hours.

(Cavan): The object of Senator Mullen's amendment is to delete from the section the phrase “or other convenient place”. He makes the case that it should be possible to find a Garda station suitable for the detention of a person if he is to be detained for 48 hours or for seven days. That will normally, even invariably, be the position.

The Senator may know that the practice of detaining people even for short periods in small Garda stations no longer prevails—I am speaking only from local knowledge when I say that. There are few Garda stations in counties suitably equipped for the detention of prisoners overnight or longer periods. It is not visualised that it will be necessary very often to detain people in places other than in Garda barracks or in a prison, but there may be an unique situation. It has happened since these troubles began that Garda barracks where prisoners were detained have been attacked by people wishing either to embarrass the Garda or to release the prisoners. On those occasions, it has been necessary to get the prisoners out quickly. There is nothing more sinister in the provision than to deal with such a situation. If those words were deleted it would be more difficult to deal with prisoners in these special or peculiar situations. That is all that is in the inclusion of the word; there is nothing more sinister in it than that.

I would like to support this amendment in the name of Senator Mullen and I am not convinced by the explanation given by the Minister. I do not doubt that the situation which the Minister envisages might arise but I do not think is causes the sort of difficulties about which he is talking. If there were difficulties about detaining people in a Garda station, they can be moved to another place of lawful custody—another Garda station or a prison. The words "convenient place" are not legal words at all; they have no legal connotation. We are authorising the Garda to hold somebody anywhere for a period of up to seven days. I do not think the need, which has been identified for this legislation, which is the need to keep a person out of circulation, goes far enough to allow us to authorise the person to be kept out of circulation anywhere.

When speaking on the motion declaring a state of emergency, and on the Second Reading of this Bill I emphasised the necessity to distinguish between the investigatory role of the Garda and the custodian role of the prison authorities. I acknowledge that the Garda in discharging their investigatory functions have a minimal custodial role at the moment; that should be minimal. If a person is to be kept out of circulation—which is what is wanted here— I would prefer he would be kept out of circulation in prison with the safeguards of prison regulations and so on. It is particularly important since we do not have independent investigation machinery. We are authorising a person to be kept out of circulation for up to seven days in a convenient place, anywhere. That is not desirable. It is the function of this House to ensure minimum safeguards and one of the minimum safeguards is to ensure that when a person is being kept for a further period out of circulation he should be kept in a known and identified place with the appropriate safeguards. Perhaps in certain circumstances this must be in a Garda station rather than a prison but it should not be as vague, general and as uncontrollable as a convenient place, for up to seven days.

The price we pay for allowing a term like "a convenient place" to be part of the legislation is the price of the apprehensions people will have about where the Garda may be keeping somebody for up to seven days. It is the battle for the minds of the people and for the loyalty and trust of citizens. If they believe that a person can be held anywhere—"a convenient place"—for up to seven days, and that the person need not be required to be in a Garda station or a prison, this is undermining the respect, allegiance, loyalty and trust of citizens for the Garda. It is making the role of the Garda more difficult. It is making their relationship with the community more difficult. It is too high a price to pay. It would be better not to have the words "convenient place".

In the extremely urgent and emergency situation which the Minister outlined there is no legal problem. If a Garda station were under some sort of attack and people in that Garda station had to be shifted elsewhere there is no technicality by which they would have to go free. In those circumstances, they could be taken to another Garda station or another prison and if there was some delay in that it does not mean that they would have to be freed from the custody of the Garda. The Garda would be exercising their powers in a reasonable way and they would be able to do that. The Minister has not justified the need for this phrase and it is one which would quite seriously undermine one of the very important safeguards both of the citizen and of the preservation of law and order in this country which is the relationship between the Garda and the community. That is very important. There are two levels at which this might happen. It must be recognised that it is always possible that there would be real abuse of the power to keep somebody out of circulation in a convenient place for up to seven days and we must bear that in mind. I am not casting any particular aspersions on the Garda. There is also an apprehension about it. There can be rumour about it. The "convenient place" can be a propaganda point with which to undermine the role of the Garda in the job they have to do and the allegiance of citizens to the Garda. On balance, I feel that we would have to pay too high a price for having a non-legal phrase like "a convenient place" which can be anywhere. I would support the amendment put forward by Senator Mullen. It would be a better section without those words.

I support the amendment. It is one of the points which I raised in an earlier speech where I suggested that this convenient place might seem, to the untutored eye and might even read for it an unknown place. I stress that point in view of the words which the Minister has recently addressed towards me, and which I found quite extraordinary. The Minister accused me of riding two horses, of running with the hare and hunting with the hounds and he made a dark and rather sinister hint as to where, perhaps, my heart was. I do not know what the Minister means by that. I requested an explanation which was refused. The Minister said he would develop that remark in the light of what I had to say about some of these amendments. It is the first time that a note of personal abuse has entered into this debate. I certainly did not ascribe any sinister motives to anybody. I accused the Government of intransigence and that is all. I certainly did not cast any aspersion on the Minister. These are clear aspersions on my integrity and they are based on a quite extraordinary and improper assumption. The Minister said that I was well aware of the attitude of the Minister for Justice from what the Minister said in the Dáil. The implication is that what is said in the Dáil predetermines what is said in the Seanad.

There was no way in which I could have known what the attitude of the Minister or the Government would be until we came to Committee Stage of the Bill. There was no way I could know what their attitude towards these amendments would be. I was absolutely impeccable and punctilious with regard to parliamentary procedure in relation to this. I went with the Government as far as I possibly could but at the very beginning I laid down the conditions that if these were yielded to I would vote for the Bill. If they were not, I said I would not.

But in the light of that to be accused of running with the hare and hunting with the hounds, of riding two horses at the same time and of, somehow, being equivocal because I do not take what the Minister says in the Lower House to predetermine what is decided in this House, is a slur on my integrity and is really unworthy of the Minister and unworthy of this House.

I will leave Senator Martin and the Minister to work out their personal problems. So far as I am concerned I will concentrate on the amendment before the House. Although Senator Mary Robinson does not look a bit like the fat boy in Pickwick, she does tend to make people's flesh creep as to what is intended in this legislation. I will say a few things about the section which would be affected by this proposed amendment.

Senator Robinson cannot honestly stand over the proposition that these were non-legal words. All words may have to be used for the first time and then be construed according to their ordinary meaning. As everyone in these islands know, the courts are traditionally hostile to the Executive, hostile to the Oireachtas, jealous of the powers which the Oireachtas want to give the Executive and seek to interpret them anxiously and with concern for the effect on citizens. In fact, the words complained about in the amendment have at least not been used for the first time and therefore have the legal stature of language which has been on the Statute Book for 37 years. I should have thought, therefore, that they are capable of being construed in a manner favourable to any person arrested pursuant to the section. There has been a tendency in the debate here and in the other House, and in the Press generally —perhaps that is not a bad thing because we must not forget the whole objective in this type of legislation and in the Offences Against the State Act is ultimately to preserve the liberties and to strengthen a force which will preserve liberties—to over-emphasise the nature of arrest and taking into custody as being a deprivation of liberty which is clearly involved only in the limited fashion in which it is involved—a trend I understand many people are unhappy about by virtue of the existence of the proposals at all.

The word "custody" implies safety, implies the obligation, and will be so construed in my view, on the custodian to take care of the person arrested. The courts will see, not merely by virtue of the preservation of the rights of the arrested person to take action for assault or any other type of rights in excess of those taken from him by this section but to take action against anybody responsible for false imprisonment, a defective procedure or for his being put in an inconvenient place, that these rights are protected. I mean putting him in a furnace, or on a toaster, putting him in a position where he cannot give voluntary answers which truly represent a voluntary response to the questioning which alone the authorities are entitled to make on him, would not be to put him "in a convenient place". I do not think the Legislature was blind in 1940 in contemplating the possibility that in a particular area at a particular time, because of hostilities raging in the province which is one of our Four lost Green Fields, there might not be in existence a police station or a prison convenient for the purposes of carrying out the searching required to be done.

I would say that the convenience here will be convenience for the proper operation of the section, for the convenience too of the safety element in the custody of the arrested person. I would like to emphasise my view that not merely would the Judges' Rules be applied to any evidence sought to be brought against persons accused as a result of this questioning for any offences under the Offences Against the State Act, but I think the principles which I read on to the record of the House the last day—it might be no harm to read them again because I am genuinely interested to know whether other Senators take the view I do— are at least indicative of the principles the courts will apply in this. I know they are not in any way binding. They are not even binding on the judges of the King's Bench who enunciated them. Remember, these are adminitrative directions to police officers who are conducting the business of enforcing justice as to the way they have to conduct it if they are to bring successful prosecutions, if the evidence is not going to be thrown out by the judges as worthless.

The object of these rules and the exercise of discretions are set out. I think this affects another amendment. These rules do not affect the principles (a) that citizens have a duty to help a police officer to discover and apprehend offenders; (b) that police officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in a police station; (c) that every person in any stage of an investigation should be able to create a case and to consult privately with a solicitor. That is the statement of the view of judges in a free country. There may be other elements not to the liking of everyone but it is at least a free country. Nobody will say that it is not a free country in that liberal sense and certainly in this matter it is freer than most other continental countries in its respect for accused persons. God knows what would happen to them in France, for example.

Every person at any stage of an investigation should be able to communicate himself privately with a solicitor. These judges are no fools. They are engaged in the business of administering justice which is a matter of having regard not merely for the person accused but all those persons who may be affected by the offences he is suspected of having committed or being about to commit. They go on: "This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by doing so". That is what the King's judges told the police officers was their duty at that time and how they would regard the evidence adduced in a situation where that principle was disregarded.

The rules also state (d) but when a police officer who was making inquiries of any person about an offence has enough evidence to prefer a charge against that person to the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence; (e) that it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer, and of any statement made by that person, that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression. The type of thing which in another case is given as an example of evidence disregarded on the general question of whether or not promises had to relate to whether he would get off on this particular offence. If he discloses, for example, that his wife is seriously ill and if he tells the truth he can get out to see her, or that she will not be accused, or all the family involved in it will be free—that is such a promise which, if established as having been made by the person in authority to the accused, would mean the evidence could not be admitted.

Senator Lenihan, Senator Ryan and Senator Robinson, in the order in which I see them looking in that direction, may tell me I am wrong in this, but I do not think I am wrong in saying that it is not even a discretion in the case of a judge. I think the position is that he does not even have a discretion to admit evidence if it can be shown it was not voluntarily given. That is the only point at which these rules have been held in our courts to be obligatory in that sense. In all the other aspects of our rules it is a matter for the discretion of the judge as to whether or not he admits the evidence.

In this situation extending this period from 48 hours' detention to 48 hours plus five days, it would, I think, be unreasonable and unwise of the Oireachtas to take away the phrase "or other convenient place". We have confidence that it has not been abused in the past. We know that circumstances might arise where it would have to be used in the future. There might be a long journey to make and the questioning might have to start in the van in which the accused person was being taken.

Whatever the justification may be in regard to the other powers in this section for extending the powers from two days to seven days, it seems to be ludicrous to extend the time that a person can be kept in a convenient place from two days to seven days. It is, of course, understandable that, in certain rather difficult situations, a guard might not be able to bring the arrested person to a Garda station or a prison for, perhaps, 24 hours. It is barely conceivable that he would not be able to get there within 48 hours. But it is quite absurd to suggest that he should be allowed not to bring him to either a Garda station or a prison for seven days. That is what is now provided in this Bill.

If the Minister wanted to adopt the wording of the 1939 Act, did not want to change the power given in that Act, certainly it should have been made clear that he can keep a person at a convenient place for up to 48 hours but no longer than that. Nobody could really argue that there is any justification, or any situation in which 48 hours would not be sufficient to allow a "convenient place" to be used. As Senator Robinson said, the phrase is much too vague and imprecise. What does "convenient" mean and, more important, "convenient" to whom, "convenient" for what? The trouble about it is that a person can be kept somewhere, other than a prison or a Garda station, for up to seven days and if there is any question about it all the authorities have to do is prove that it was convenient to somebody, or convenient in some way. Provided it can be shown that it was convenient in some way then the period of detention in a place other than a prison or a Garda station cannot be questioned.

We have been asked on a number of occasions on this Bill to be realistic, not be analysing words and phrases too carefully, being too analytic about it, to be realistic and assume that it will be operated in a reasonable and intelligent way. Of course, if the Minister wants us to be realistic he should adopt this amendment. Everybody knows that if a guard has difficulty in getting an arrested person to a Garda station or a prison, if there is a delay in doing so but if he does his best to get him there within a reasonable time nobody is going to question that; no court, nobody is going to question the fact that there were physical difficulties in getting the arrested person to a Garda station or prison for a matter of hours, even a matter of a day if a reasonable case is made.

There are numerous Acts, dealing with criminal law, with arrest and custody. I think it is correct to say that in none of them, except in the 1939 Act, is there a provision that a "convenient place" can be used. In all of them it is assumed that the garda will bring the person to, and place him in custody in, a Garda station or prison as soon as possible. Provided he does it as soon as possible then there can be no question of his bona fides and it cannot be questioned in law. Therefore, why introduce this rather vague business about a “convenient place”? The more one analyses it the more one realises it can be abused. There are certainly people who are going to read a sinister meaning into it. Even though there may be no such sinister intention, nevertheless it can be read into it and in fact it can be used in a way which would be an abuse of the ordinary process of law.

There is a very strong case for accepting this amendment. The only possible justification for its insertion and I am sure the only reason it was put in was that it happened to be in the 1939 Act and was just stuck into this. After all, if we are only going to review emergency powers every 30 years or so—and there is a strong case for doing it much more frequently—then let us make some improvement in them when we have the opportunity to do so and not accept a phrase like this merely because it was in an Act passed 30 years ago.

I agree with Senator Robinson's interpretation that a "convenient place" is any other place decided by the Garda, whether it be on land or offshore in the jurisdiction. Senator Eoin Ryan's definition of "convenient" amuses me because we must assume that such a place is not "convenient" for anybody in custody, whatever about their relatives or friends or the gardaí holding them. Therefore, "convenient" is not very important to the person in custody.

If it is found necessary to hold people in custody in any other place than a Garda station or prison perhaps we could have ministerial assurance that they would have the same rights of communication with their legal advisers or their relatives. For instance, if somebody was held originally in a Garda station but because it was under attack he was, for his safe custody, moved to another place, his relatives, friends or legal advisers should be so advised of his removal to another safe place. It is only when the words "convenient place" take on an air of mystery, or that their whereabouts would be unknown to anybody else, that the Opposition have this dread when they speak on such a matter. If it is generally known that we are worried about it and if an assurance is given by the Minister that such a "convenient place" is known to others, and not just a place of mystery, then I would be satisfied.

(Cavan): As has been conceded by Senators, this provision has been taken from the Offences Against the State Act, 1939, and has been the law of the land since then. It has not given any trouble. When the Opposition were in power, they did not see fit, in the sixties or early seventies, to amend the 1939 Act; they were satisfied with it. The 1939 Offences Against the State Act was enacted to deal with an unusual state of affairs where regard for Garda stations, prisons and the institutions of State in general, had lessened. Respect for these institutions was not as high as it should be. This Bill has been introduced, regrettably, to deal with an unusual situation where certain people, organised and unorganised, do not accept the authority of the Oireachtas and the Government and have decided that they are entitled to speak and act on behalf of the people.

I am not being unreasonable when I say that the position is much worse now than it was when the Offences Against the State Act, 1939, was introduced. These people, organised and unorganised, are more reckless, have more sophisticated means and weapons at their disposal and are prepared to use them to put into operation what they consider to be their rights. We have had people released from prison by helicopter. We have had prisons attacked by bombs from within and without. We have had Garda stations attacked and one was kept under sustained attack for 12 hours. Another Garda station was attacked while prisoners were being kept there and there have been other less serious attacks on Garda stations in other parts of the country. There is nothing more sinister in this than to provide a provision for housing a detained person in circumstances where the ordinary Garda station or prison are not reasonably accessible or available.

When we discuss this Bill we all talk in terms of being detained for seven days. The authority is being given to detain for seven days but when we say seven days we mean up to seven days. It might be an hour and I freely and candidly admit that it might be seven days but it is not going to be seven days all the time. This measure is under annual review by way of motion which any Deputy or Senator may put down.

Senator Ferris has raised the point that a convenient place would only become sinister if it became a place of mystery where somebody was secreted away without the knowledge of anybody else. The Minister will be here later in the day. Speaking from my point of view, I am satisfied that if a person is detained under this measure and kept in one place where his legal and medical advisers have been in touch with him, which is his constitutional right, and if that person is removed in an emergency to some other place which is not a Garda station or prison, it would be unreasonable if the people who have custody of him do not communicate with his relatives or legal and medical advisers. I will leave it to the Minister for Justice to speak for himself but that is my opinion. I could not see it happening that somebody would be taken away suddenly from a Garda station where his legal adviser, father, mother, brother, sister and doctor had been in touch with him, to some place else which is unknown and that the Government would get away with that. The intention of this measure is to defend democracy and not destroy it. That is what we are doing.

I am pleased to hear what the Minister has said because before that he referred to people who do not see fit to recognise the law or the trappings of this House. I have said that we are not pleading on behalf of that type of person. We are concerned about the rights of people. Even taking into consideration the people who do not recognise our law, we do not expect them always to adopt this course. We expect that some day, let us hope soon, everybody will be reconciled and that there will be no need for this type of terrorism as it has been described. Senator Roddy Connolly made a good contribution in that regard when he talked about what lead up to the formation of the State and the use of violence in bringing about the formation of the State.

Earlier the Minister referred to the rare occasion on which this would happen, the utilisation of a convenient place. The convenient place has not been stipulated but from the debate it seems that it will be identified in that the prisoner's next-of-kin will be communicated with and told that he or she is in this convenient place. I still cannot understand why we utilise, apart from the 48 hours, a further five days to hold a prisoner in a convenient place in a small country such as ours. If a prisoner deserves to be held in custody, there is no safer place than a prison or a Garda station. The Minister has also indicated that some of the Garda stations are not sufficiently equipped. It would be much better to equip the Garda stations properly than to start selecting convenient places and have people speculate about the utilisation of convenient places.

My mind goes back to what I heard about the utilisation of a convenient place in Dublin adjacent to this House. It was the famous Oriel House. That was a convenient place; it was not a police station or a prison. Many people were brought to it and very sinister things happened there. I would be more than anxious to ascertain what a convenient place would be. In his opening remarks Senator Ferris referred to "offshore". Are we going to have a prison ship offshore? Surely a convenient place would not be a hospital unless the prisoner is ill. Surely he would not be brought into an hotel? We would not take over an hotel because that would involve great risk. Surely we would not commandeer a private house and put him in it? Rather than have convenient places, it might be better to equip the local Garda stations better than they are.

The point arises about the regulations which will attach to that convenient place. Will they be prison regulations or Garda regulations? What will happen in a case of that kind? I want to draw the Minister's attention to the convenience of being able to bring somebody, no matter where he is caught, to a Garda station or a prison. It is not very formidable. I have not known of any difficulty in bringing prisoners from Portlaoise for trial in the Special Criminal Court. We have not had to keep prisoners in Mountjoy, which is a more convenient place, pending their trial in the Special Criminal Court. I am very anxious to clear this matter with a view to not allowing people to read into the phrase "other convenient place" something that is not intended. If Garda stations are equipped properly there would not be any rare occasion.

I should like to make one brief intervention in the interest of democracy. I do not differ one iota from the intervention made by Senator Alexis FitzGerald. He is right in saying that the Judges' Rules protect, that a statement after four or five days of the seven days' detention will be looked upon by the courts with real suspicion. Our courts will protect as far as they can. I totally accept that line of reasoning but the risk of this particular phrase, for the interests of democracy, is that we have not got the control and complaints mechanism that would be seen to remove the very real apprehensions that have been expressed here about putting on our Statute Book legislation which allows somebody to be detained for up to seven days in a convenient place. It would help if the independent complaints machinery could be brought in at the earliest possible time. It would help also if the right to consult a lawyer and a doctor can be identified. I think the debate has been helpful in focussing on this point and in clarifying to some extent what I regard as an unresolved area.

I would put it to Senator Alexis FitzGerald that it is not just a question of a voluntary statement at the end of a period of detention. It is the necessity to have proper accountability and scrutiny and control of what happens during that period. This is a democracy and we need to have control over the forces of law and order in our democracy when we give them powers like this. I am not happy that we have got scrutiny and control over the exercise of these powers as they are framed. The words "in a convenient place" are too broad.

Senator Eoin Ryan is probably right when he says that it was the formula taken out of the 1939 Act and that it is most inappropriate to a section which allows a person to be detained in custody for seven days.

I do not regard as very weighty assurances given by the Minister for Justice or anybody else about the manner in which this section will be applied. As the Minister is well aware, we are talking about legislation on our book, about successive Governments, successive Administrations, and about the Garda for years to come. Therefore, assurances cannot prevent us from having serious apprehensions about the words "a convenient place".

I imagine it is too late for the Minister to accept this amendment. He will hardly recall the Dáil in order to put the amendment to it but he should give precise assurances of the way in which independent complaints machinery will be introduced at the earliest possible opportunity. It has been referred to obliquely but I would like to see firm assurances of the way in which this will be done.

It is with great reluctance that I say anything on this. There are one or two brief points which occur to me. I am convinced that the greatest respect for the law takes place when the law itself is quite certain. This respect for the law comes from the public and from the Garda and from prison personnel. What this House needs as a legislative assembly is an assurance concerning the quality of legislative instruments. It is quite another thing altogether to say that the person after something has happened to him may have recourse to law. It is very much an ipso facto kind of construction. You are suggesting that although the law is flexible and may even contain potential dangers there is this recourse at the end of the day.

Law that is so lax, that creates the possibility of abuse or creates uncertainty is in itself a bad service to the public who might have respect for law and to the agents who are involved in the practice of law itself. It also holds itself open much later to arbitary interpretation. There is immense force in the argument that an assurance of the occupant of the day does not carry anything like the same weight as an explicit provision itself. For example, even if "convenient place" had been given sufficient conditions so as to make certain what precisely was taking place in that place, what precise conditions might apply, it would be viewed with far less fear by many people who are concerned that the law be exact. In the event of inexactitude I can only come to the conclusion that we are risking the relationship between the public and the law makers and law enforcers in so far as we are casting a shadow about something in respect of which there should be no shadow whatsoever.

I made the point some time ago that the public attitude towards all of this legislation might be quite different if there had been a public commitment to making all of the procedures of apprehension, arrest, investigation, even for ordinary crimes, far more explicit than they are at present. The attitude of the public towards all of this would be more reasonable and less apprehensive.

I should like briefly to follow what Senator Higgins has said in relation to this and in relation to my own comment yesterday about a complaints commission. It would be a mistake to assume that requests for such a commission are intrinsically related to this legislation and——

Hear, hear.

——bear no relation to the general administration of law enforcement agencies. I would not want it to be taken that because we are extending the period from two to seven days and only because of that, that this complaints commission is necessary.

I represent a Dublin constituency and on occasions have had representations from people who alleged that they were abused physically while being apprehended by gardaí. When I questioned them as to why they would not make a complaint about it they replied that they would not be believed, that it would be their word against the gardaí concerned. Anybody who represents a Dublin constituency can testify to the accuracy of that statement. We must be concerned that the honour and effectiveness of the Garda Síochána remain as they have been in the past. With my limited degree of expertise and knowledge, I offer the opinion that we are heading into a decade of real substantial violence brought about by conditions of deprivation and poverty. The police force will, willy-nilly, come under considerable provocation in order to ensure that we have physical civil liberties in our cities and towns.

It is because of that kind of process, which is independent of this legislation that, in order to put the Garda Síochána above suspicion, we need some form of complaints commission. I would suggest to the Minister for Lands, whom I must compliment for his handling of the debate so far and for the sympathetic way in which he has dealt with the queries put to him by the House, that he would report to the Cabinet the concern of the House that such a commission be set up as soon as possible. This House would give every support to legislation setting up that commission.

I should like the Minister when he is replying to state explicitly, for the records of the House, why an extra five days are being sought by the Government. It has not been explained satisfactorily so far to the public that the extra five days sought by the Garda Síochána are to prevent intimidation of witnesses and the creation of alibis. I respectfully suggest to the Fianna Fáil Opposition that when they established the Special Criminal Court they recognised that intimidation existed and that the process of trial by jury was severely hampered because of that intimidation. It is in recognition of the existence of intimidation that this Government and the law enforcement agency acting on our behalf, in their wisdom and discretion—we must give them some degree of judgment in this matter—sought this extra power.

(Cavan): Before Senator Quinn rose, I indicated to the House that the Minister for Justice will be along shortly and will take the remainder of the Committee Stage of this Bill, and the other Bill.

In relation to the point raised by Senator Robinson and followed up by Senators Quinn, Higgins and Mullen, in regard to complaints investigation procedure, I am glad it is conceded that it would be most inappropriate to tie up any such procedure with this Bill. To do so would be an indication of particular bad faith in the object of bringing in this Bill and a vote of no confidence in the members of the Garda Síochána who will be charged with its operation. The Garda Síochána have been with us since the foundation of the State. I have spent more than 30 years as a professional man, practising to a large extent in country District Courts, and I have had no cause to find fault with the Garda Síochána in the execution of their duty.

I know that a debate is going on about the establishment of a complaints procedure, but not in the context of the legislation with which we are dealing at present. Senator Robinson put that on the official record yesterday. I am sure that debate will continue. It would be more appropriate to continue it when the Minister for Justice is present. I am not washing my hands of the debate but when this amendment has been concluded the Minister for Justice will be present. Some of the other points made by Senators would be more appropriately dealt with on amendments which the House will deal with later.

This amendment is to exclude from the section the right to detain a person "in a convenient place", other than a Garda station or a prison. It is a third choice. I put it to the House that it is only if and when the Garda station or the prison is not available due to exceptional circumstances that resort will be had to the other convenient place. In reply to Senator Ferris, I gave as my considered opinion that if a person is removed from one of these places to an unknown destination, the destination will no longer be unknown, because it would be reasonable to assume that his legal adviser or his relatives would be informed.

I was about to comment on the Minister's point about the police and citizens but I take his point that there will be another opportunity to discuss the matter. He is unable to accept the amendment that the words "or other convenient place" be deleted.

I agree with the point made by Senator Robinson that it is unlikely the Minister will accept this amendment and recall the Dáil. However, would he recognise the importance of doing something positive about the suggestion to remove the words "or other convenient place"? In drafting this legislation we must not give people the opportunity of saying there is something nefarious going on. I would expect the Minister, when the Dáil resumes, to do something about it.

I hope it is becoming clear to the Minister that those of us who oppose this measure are doing so because we want to discharge our functions to the ordinary citizens, to try to protect their rights. Anybody who watches the activities in the courts knows that innocent people appear before the courts and are discharged after their innocence has been proved. Therefore the assumption that a person who comes into custody is one who should be treated in any way less justly than somebody walking on the streets outside the prison, Garda station or other convenient place, must be anathema to all of us. Equally, even if a person is proved guilty eventually, he still has rights and that, as I said earlier, is what distinguishes us from the people called thugs—I call them misguided youngsters. This distinguishes us from them because our standards are different. Everybody must have certain rights. It is because they do not recognise this fundamental human right which people have that people take their lives and do other dreadful things such as burning down property. In other ways they express their protest at a society they do not like.

It is particularly important that we try to retain as much as we can of the essential fabric of the democratic rights of our society even under great pressure—this is the test of justice in any society. Anybody can behave in a humane way when he is not under pressure or any kind of stress. The real test of the seriousness of our sense of understanding, humanity, compassion, is when we are under pressure and when we are frightened and in some sense fearful of what these people are doing and what they can do. We must at all times not only be superior to them in our standards and values but appear to be superior to them in our standards and values even in our treatment of the guilty ones. This applies even more so in relation to the ordinary citizen who is brought in by mistake bona fide by the Garda who think they have somebody who is guilty and who afterwards, of course, is found to be not guilty and that makes all the difference. This is the point Senator Martin and I have been trying to establish. This is a completely new situation. It is the fact of the deprivation of the right of appeal to the court plus the seven days, plus the additional penalties, the tripartite provisions, the variety of penalties and disabilities which are now being imposed in this new legislation. Again in relation to the appeal and the supervision, this seems to me a very reasonable request.

An Leas-Chathaoirleach

If I might interrupt the Senator, we are dealing with amendment No. 3 which raises a specific point. When we finish all the amendments under section 2, there will be opportunity for debate on the general section.

I was going to reply to the two suggestions made in my hearing here, one by Senator Quinn and the other by the Minister in relation to some form of supervision for the Garda, and the point raised by Senator Robinson and, I understand, Senator Quinn. The first point in relation to a supervisory body of some kind is something we accept is widely accepted by our community in all aspects of our lives. There should be no question about it at all and least of all from the Garda themselves because they can be misrepresented by people who say: "These people are judge and jury in their own case. What do you expect from them?" This, of course, is one of the criticisms made of my own profession, the medical profession, that we tend to go off into a star chamber type of investigation procedure; we issue our findings about the individual; and they may be just or unjust. It seems to me—and at times I have referred to this fact—that I do not think we should have the right to be judge and jury in our own cases and that we leave ourselves open to the charge that we establish certain rules and procedures which should not apply to any special group within society.

The Minister, Deputy Cooney, says the innocent man has nothing to fear from this legislation. This is his case the whole time. The innocent Garda have nothing to fear from an inquiry or investigating committee. It would have the advantage of being a judicial, objective inquiry into what has been done and, therefore, would have all the more validity when it came to issuing its findings. The public could not say: "This, of course, is what you would expect from them. They will whitewash their own people." As, for instance, in the case of doctors it is very hard for anybody to go to court and criticise them or attack them. Equally, the public is not impressed by that. Therefore, in the interest of the Garda it would be better that they should accept some kind of independent investigating body.

Ordinary citizens have to accept this process. The judicial process is apart from us. I know there are occasions when it is not. The broad theory is that none of us, no matter what party we belong to, and no matter who we are in what party—indeed, the Minister made this clear a number of times last night when he said: "I cannot influence the Director of Public Prosecutions"—has any right to interfere with the Judiciary in any way. Neither has any of us any right to interfere with the judicial process, and that is as it should be. We accept that. That is why the judges are put above all of us, and outside all political parties. Of course that is the theory but, in fact, we generally accept that, once they are appointed, on the whole they operate with independence and fairness and justice. We accept it for ourselves, the ordinary citizens. Why cannot we have the same principle introduced in relation to the Garda?

In relation to the point made by Senator Quinn about the need for the seven days' provision, I share his view. I have not been convinced about the seven days. I have talked about——

An Leas-Chathaoirleach

I allowed Senator Quinn to make reference to it but, in fact, amendment No. 6 deals specifically with the five days and 24 hours. It would be better from the point of the debate if we dealt with it under amendment No. 6.

I want to make a very passing reference to it in reply to him about the way that was dealt with. The point he raised about intimidation has already been dealt with by saying that with the removal of the jury system in relation to the Special Courts it could not be used. The intimidation could go on, no matter how long you keep the individual concerned in prison because his supporters outside can still intimidate if they want to. The process which removed intimidation in so far as we can humanly remove intimidation was, of course, the setting up of courts without juries. Therefore, that could not be accepted as a reason for the extension to the five or seven days' process.

After they made wrong decisions in the North—Faulkner's wrong decisions in relation to internment— such antagonism developed between the people and the police, and the people and the Army, that most people will accept it is now verging on anarchy and chaos up there. In those circumstances terrible things can be done under the stress and pressure of the new situation brought about by wrong policy decisions. This is what we fear now. Wrong policy decisions may bring about a situation where the terrible things that I referred to last night—and they were terrible things—may happen. Torture can take place and nobody knows about it except the individual who is tortured and the people who did the torturing. We could get to a situation of chaos within our society where these terrible things would be practised and, even worse still, would come to be accepted, as they have been accepted in the North by many of the people who were in charge there and, as I said, by much of the British Press. I imagine that would have been unthinkable about ten years ago, but it has become a reality in the past few months. My submission is that this is a possibility within our society and I am trying to protect our people, our citizens, from that eventuality.

(Cavan): I just want to make one observation. Apparently I did hear Senator Browne correctly last evening. All I want to say in relation to the fears of the diabolical things happening which he has mentioned, which I think are unworthy of him, is that those things can never happen until the people of this country accept them. The people will see to it that they do not happen. They cannot happen. The police cannot do those things if they were so minded, as I do not think they would ever be. Those things can only happen when the people, through the ballot boxes, approve of them.

In reply to the Minister, would he not accept that it was conceivable that charges such as I have made now, and to some extent supported by some of the fears expressed by the other Senators, could have been made to members of the Stormont Government two or three years before 1969 on the introduction of internment and so on and that the Ministers, in good faith, would have said precisely what the Minister has now said to me—that it could not happen? But it did happen.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 4 and 5 are related and may be debated together.

I move amendment No. 4:

In page 3, subsection (3), lines 10 and 11, to delete "if a member of the Garda Síochána not below the rank of chief superintendent so directs" and substitute "if a District Justice exercising jurisdiction in the area where such person is kept in custody so directs".

In submitting this amendment I wish to draw the attention of the House to the fact that in the Six Counties it is the Secretary for Northern Affairs who makes an order for an arrest and in England it is the Home Secretary. This amendment is simple and reasonable. It is very important that we not only establish but protect the principle of accountability. It is a well-known fact that a district justice is responsible to the Minister and a district justice is obligated to have strict regard for the code of law and, indeed, previous decisions in law. Similarly, a Minister is accountable to the Oireachtas and also to the public.

The decision being taken by a police officer is a different matter because he can be found to be exercising his own discretion. In saying this I am not attacking the police. Indeed, I contend that this is an unfair burden to put on the shoulders of the police. I am more than anxious to ensure that we do not alienate the people from the police; it is very important that we do not. In order to avoid being misunderstood I find it necessary to point out that I have always had the welfare of the Garda in mind. When they were in trouble many years ago—I am not boasting about this—I had no hesitation, as the only TD in Dublin to stand up for what I considered the rectification of a justified grievance which they had. That being so I am more than anxious that they are not being required to do something that is more proper to people with more experience. That is why I am advocating that we should utilise the district justices for this purpose.

Our amendment No. 5 seeks to have the Minister for Justice act as the sanctioning party in regard to the extension from 48 hours to seven days. Senator Mullen, Senator Ryan and myself are trying to get at the same thing. We feel that this is better kept at the level of accountability to the Oireachtas which is through the Minister for Justice. While agreeing with Senator Mullen in principle I do not think it would be desirable to bring the courts into this type of decision-making at invertigative detention level. It is a serious Executive function and should be safeguarded to the fullest extent by writing in the Minister for Justice as the sanctioning party. The Minister is accountable to the Oireachtas and therefore there is this degree of democratic control which I feel is important with regard to a matter of this kind. I take it that this will only be used in exceptional circumstances, and I take it the Minister for Lands and the Minister for Justice would agree with that.

I would like to get clarification on this. I would hope that when this Bill becomes law, as it inevitably will, that it would be used only in the most exceptional circumstances. I take it that in the normal case the existing pattern would obtain and that it would not become a matter of routine for the Garda to keep people incommunicado for seven days on foot of the arrest provisions under subsection (1). I should like to get a reassurance on that because this is exceptional legislation. It is not a mere technicality, as was stated by the Minister for Foreign Affairs when addressing American businessmen in Killarney and seeking to reassure them. I take it the Minister for Justice would disagree with that interpretation of the legislation. The legislation is stated to be an Emergency Powers Bill and it abrogates the Constitution as far as the detention and arrest provisions in the Bill are concerned. That is the purpose of the Title of the Bill: to derogate from the Constitution for which there is provision under Article 28.

It is a serious matter to extend what has always been regarded by the courts as a reasonable period of detention, 48 hours. That has never been tested but I am certain it would be regarded by the courts as reasonable. Indeed, we suggest, in a further amendment, that an additional 24 hours might be incorporated. That might be regarded as reasonable. I take it that the whole purpose of the Bill is that the Government know that the courts would not regard seven days as being reasonable. They would regard that as being unreasonable, unconstitutional and an infringement of the guarantees set out in Article 40 of the Constitution, the guarantees in regard to personal rights.

There is an acknowledgment that this is a serious matter in the Minister's own section, section 3, where there is a distinction drawn in the drafting of the subsection.

An Leas-Chathaoirleach

The amendment please. I hope the arrival of the Minister for Justice does not tempt Senators to look for another Second Stage debate.

The Leas-Chathaoirleach just made the point when I was coming to the point. We must be of the same empathy in regard to getting to a point.

Subsection (3) of section 2 in the Minister's drafting does acknowledge the distinction between 48 hours and the extra five days. In the initial part of the subsection it is stated that whenever a person is arrested and kept in custody for a period of 48 hours from the time of arrest it can be done under the ordinary course of police administration. The Minister acknowledges that a serious step is being taken in extending that from 48 hours to seven days by adding in conclusion to the subsection:

...if a member of the Garda Síochána not below the rank of chief superintendent so directs, be kept in such custody for a further period not exceeding five days.

There is a distinction drawn in the section by the Minister. He and his advisers recognise that there is a very real distinction between 48 hours and seven days. They also recognise that where as the 48 hours' detention can take place in the course of the ordinary administration of justice, a higher deciding authority must come in for the extra five days. The Minister suggests that the chief superintendent is an adequate higher deciding authority. I do not think he is an adequate higher deciding authority in a serious matter of this kind which should be used only in exceptional circumstances. I would like an assurance from the Minister on that aspect.

Senator Ryan, Senator Mullen and I are seeking to incorporate in our two amendments a higher authority, separate from the police force, who would authorise this very serious and, I hope, exceptional emergency measure of keeping a person incommunicado for a further five days, in addition to what has been held heretofore to be a reasonable period of 48 hours. We do not think the chief superintendent, being part of the Garda Síochána machinery, is a sufficiently independent authority to authorise this exceptional and serious extra period of detention. In my view—and in Senator Ryan's view—the person who should have that exceptional and serious power is the person appointed by this Parliament to act in the interests of this country, who, with his advisers who are independent of the police force, can assess the situation as presented to him by the police authorities, can exercise his political judgment and can come to a decision in the matter for which he is responsible to this Parliament—the Minister for Justice. I can see no administrative difficulties in doing this.

The British authorities do not seem to have any difficulty in having their Home Secretary perform precisely this function in the Six Counties. I do not see why the Minister for Justice cannot similarly assume that function in the Republic. Indeed, the British Home Secretary is probably more heavily burdened in this sense than our Minister would be, particularly working on the assumption that this will only be used exceptionally and will not be a matter of routine.

This is a relatively small country. Communications are easy. I should like to hear from the Minister for Justice if there is any administrative problem in his assuming this power and making this particular order. To use the Minister's own case as presented by the Minister for Lands on the Second Stage, if there is a serious case for keeping people in detention while investigations are proceeding—I take it that it would be an exceptional case as all the cases mentioned in support of this measure have been exceptional cases—I can see no reason why the apparatus of the Department of Justice cannot be brought into immediate action by the Garda. A telephone call or a report taken by hand does it.

The Minister's advisers will advise him; he will exercise his political judgment in the knowledge of his responsibility to Parliament; and he can authorise this detention for the extra five days if the case is of sufficient importance. That machinery is there. There has always been a very efficient administration in our Department of Justice. The Minister's advisers will know exactly what I mean. They have always maintained close liaison with the Garda authorities, who report regularly to the Minister.

The Minister is well aware that there is no administrative problem whatsoever in regard to his making the required emergency decision, if necessary, to detain for the extra period of five days. I should like to be reassured about that. In principle, it is very important that the Minister for Justice, responsible to Parliament, makes that decision and that it is not part of routine police machinery. If it is a serious decision—and it is acknowledged to be a serious decision because the Minister in his own drafting draws the distinction between two days and seven days by saying that for the extra five days the chief superintendent must decide—I feel very sincerely and seriously that the Minister should take this power on himself. I should like this to be treated on a rational basis.

In the heat of parliamentary debate inevitably we have had some comments that go beyond the rationale which is part and parcel of parliamentary exchanges. This is a very serious matter. Having spent some time in the Department of Justice, I see no administrative reason why this is not possible.

I see a very important reason, in principle, why the Minister for Justice should take the matter of the extra five days on himself and, with his advisers, come to a mature and responsible decision. It should not be buried in police administration. It is a decision which may, unfortunately, develop into a routine type decision because the chief superintendent can do it. It can become a too casual and cavalier decision. This is the danger in any administration. It is not a reflection on the Garda Síochána. It is not just a casual or cavalier decision; it is a very important decision which, I feel, should be taken by the person responsible to the Houses of the Oireachtas, the person charged with the responsibility on behalf of the people—the Minister for Justice.

I assure Senator Lenihan and other Senators that serious arguments and points will be answered in a similar manner by me. He need not have any worries in that regard. I will not unilaterally change the temperature of the debate.

Senator Lenihan answered briefly Senator Mullen's amendment—and I will expand it later—that this power should be given to a district justice. This would be altogether unsuitable because, as Senator Lenihan said, this would involve the Judiciary in an area of Executive Government. Our Constitution enshrines the basic constitutional principle of the separation of powers of the State into three, the Legislative, the Executive and the Judicial. It is very important for the continuance of the democratic rule that the separation would be at all times maintained.

If we were to ask a district justice to exercise what would be an Executive act, in essence a non-judicial act, we would be blurring that distinction to the detriment and independence of the judicial power of the State. That would be undesirable. The function of a judge under our Constitution—this is so well settled it hardly needs to be said—is to deprive a person of his liberty in accordance with certain procedures involving a trial of issues before him. In this matter there would be no trial of issues in the accepted sense. It would be an Executive action and would be completely incompatible with the nature of a judge's function. For that reason, it would be an undesirable principle to introduce.

On the question of the Minister for Justice rather than the chief superintendent being the party to make the order, I do not propose to argue that there would be administrative difficulties or to stand on that argument alone. There are stronger arguments for refusing the amendment. It would not be administratively easy, because there is only one Minister, and there could be instances where it might lead to delay or difficulties, but I would not advance that as a conclusive argument. As Senator Lenihan said, it is not intended that this power will become the norm. It will only be exercised in exceptional cases depending on the exigencies of the situation from time to time. That feature would diminish any administrative difficulties that might arise. I am not putting forward that as an argument.

The main argument I would use against accepting this amendment, is that it would be introducing a political person into a situation where a subject is being deprived of his freedom. Senator Lenihan used a telling phrase in support of what I am saying, when he said that this power could be discharged by the Minister in the normal way. The phrase used was "in the exercise of his political judgment". We should never allow any political person in the exercise of his judgment to be the one to deprive a citizen of his liberty. This would be opening a door to admit a very dangerous procedure and to admit a very wrong principle into our code of conduct in this whole area. That argument, is insuperable and is an argument which cannot be controverted when we are considering whether this amendment should be accepted or not.

It would be wrong for the decision to be in the hands of a political person. None of us can know who will occupy any post. None of us can know what circumstances will pertain in this State and I am not—I made this clear in the argument in the other House—pointing the finger at any of my predecessors and saying that the power might be used in an unscrupulous fashion, but none of us knows what tomorrow will bring and the principle is so fraught with danger that to give a political person this function, having regard to all the pressures that might come and the temptations that might be placed in the way of a political person, would be wrong in principle. I feel very strongly about this indeed. I take the point about accountability. If in order to achieve accountability the power had to be given to a political person, then we might even begin to look at that principle and see would we be justified in breaching it here.

The argument for accountability does not justify any breach of that principle, because there will still be accountability to the Oireachtas, through the Minister for Justice of the day, for the activities of the Garda Síochána. It is well settled that the Minister for Justice is answerable in Parliament by way of parliamentary question in the other House, or in this House in accordance with its rules and procedures, for Garda actions and Garda policy generally. If accountability is sought in this amendment, I submit to the House that accountability is already provided for, in the way that I have mentioned, and there would be as much accountability by leaving the section stand, as accepting this amendment. Any arguments that there might be about the degree of accountability are not valid in my opinion, and are not sufficiently strong to disturb the other argument which I am making that it is extremely wrong in principle to give to a political person the power to lock up a citizen for any length of time. This power must be left in the hands of the police.

I am satisfied with the general level of conscientiousness of our police in the discharge of their duty. After all, in 1972 we gave what I think is an even wider power to a chief superintendent and one that I objected to at that time. It is still a power that is a very wide power and I can honestly assure the House that I am satisfied that that power has been exercised in a most conscientious and indeed, some might say even in a restricted way, and I advance this as a pragmatic reason for trusting the general standards of probity that the Garda observe discharging their duty. We have that safeguard then, the safeguard of accountability through the Minister for Justice, for Garda activities. The fears that are expressed are met by that argument and they certainly do not remove the supreme argument that it is wrong in principle to introduce a political decision in a matter such as this. Senator Lenihan made my case for me when he said "the exercise of his political judgment". This would be altogether wrong because there would always be a danger that that is what the criterion would be—political judgment rather than reasons of security or police reasons.

I certainly cannot follow and I do not agree with the Minister when he makes this point about political judgment. The Minister has made a very serious political judgment in introducing this Bill. The Minister has decided that the ordinary law is not sufficient to deal with the situation existing in this country and that a Bill must be brought in which is not in accordance with the Constitution and consequently has to be brought in in this special way. The whole situation that we are talking about is a situation which has been created by the political judgment of the Minister and the Government. Having created a situation which is certainly one involving political judgment the Minister should retain responsibility for what is envisaged in this Bill.

The kind of situation that is envisaged in this Bill will always be a political situation. It will always be a form of crime which can be described as political and certainly having created the situation, the Minister should retain control. He should be satisfied and be in a position to be satisfied that the powers being used in this Bill will be used in the context which was intended and envisaged when the major political decision was made. It would be most unfortunate if the Minister did not retain control of the situation and if the security forces, the Garda, were tending to use the powers contained in this Bill in a way which was not proper, which was not envisaged when this decision was made.

It is very important that the Minister should realise that he has created a situation as a result of a political judgment and he should keep control of that situation and ensure that the powers contained in this Bill would only be used in the context of what was on the mind of the Minister and in the mind of the Government if this Bill was passed.

The argument used by the Minister is completely invalid. We are not dealing with the ordinary law. Of course it would be wrong for the Minister, in the administration of the ordinary law of the land, to interfere in a political way with the activities of the Garda except in some very special circumstances. This is quite different. This is a matter involving political judgment. It was created by a political judgment and the Minister should retain it in his power to make sure that it is administered in the way which was envisaged by the Government when they made this judgment. The more the Minister discussed this, the more the Minister expressed his view about it, the more I am convinced that this amendment should be accepted and that the Minister should maintain control of a situation created by him. Of course, we are very often in the situation here that it is difficult to accept amendments. But we have to take the situation as we find it, and I certainly feel that this amendment should be accepted and we really have to press the amendment which will oblige the Minister to accept the consequences of and maintain control of a situation created by him and created as a result of a political judgment.

Senator Ferris rose.

Would the Senator allow me to deal with what Senator Ryan has said? There is a clear distinction between the process of proposing to Parliament something for Parliament to pass, which is what we are doing now with regard to the politics of this Bill, and what I am being asked to do by accepting the amendment, which is to make what would be necessarily a secret political decision.

Of the two amendments before the House I would strongly support the amendment put forward by Senator Brian Lenihan and Senator Eoin Ryan that the judgment should be by a politically accountable person. That is not to say that I do not think there are very considerable merits in the arguments put forward by the Minister. There is a balance to be maintained. He is right in saying it is preferable to have the decision relating to an individual not in the hands of a political figure. That would be an impossible situation. There are difficulties inherent in that. There is much to be said for independence. There is much to be said for the creation of the office of DPP. I supported that strongly. It was a very good step.

The situation here is a very difficult one. This is a Bill which goes beyond the normal constitutional provisions for the protection of the citizen. We have created a state of emergency and this is an Emergency Powers Bill which allows a person to be held for a further five days after he has been held for 48 hours by the Garda. That is exceptional. I would strongly hope that the Minister and those Senators who say that it will be a power that will be rarely used are right; but I also think that it is a power where there has to be a high degree of accountability. It is related to the scope of the section itself.

I made this point on Second Reading and I hope to make it again on the section. The section itself allows the Garda to exercise this power in relation to offences under the Offences Against the State Act or scheduled offences. At some length in this House we debated the fact that included in the scheduled offences are offences under section 7 of the Conspiracy and Protection of Property Act, 1875, and that a person who does not have the protection of the Trade Disputes Act, 1906, and who pickets premises is, I think, capable of being prosecuted for being in contravention of section 7 of the Conspiracy and Protection of Property Act, 1875, and the powers of arrest and detention for seven days apply.

I was assured by the Minister for Lands this would not be the intention of the scope of this Bill and I said to him that actual administrative policy on general prosecutions would be in the hands of the DPP and not in the hands of the Minister. This is relevant to our consideration of the accountability for the detention of a person for an extra five days because, if circumstances change somewhat and if there is a severe economic crisis and recession here and there are some pickets outside Government Departments by public employees, then you might have a situation where the Garda in the legitimate exercise of the powers that are here would use the power to detain somebody for seven days for contravention of section 7 of the Conspiracy and Protection of Property Act. Politically, that might be highly undesirable as far as the Minister is concerned and as far as the Government are concerned. I certainly hope it would be. But the mechanism would be independent of the Government, in the Minister's own words. They would have set in motion something that apparently they do not want to be in a position to control, be accountable for or stop. This is the difficulty.

The Senator is ignoring the point. I said there is already accountability.

It is the question of accountability that is the substantial question before the House. I see merit in the points the Minister was making but, on balance, because of the nature of the power and because of the scope of this section, I would prefer that the decision to detain a person for a further five days, and therefore the way in which the section will be used, will be a decision by an accountable figure. I say this because I think that our traditions in this regard are very much inherited from the common law system, from the British system, and they had a Director of Public Prosecutions for a considerably longer time. Ours is a recent institution. They are very concerned about the sort of values that the Minister was outlining and yet it is a politically accountable figure, either the Home Secretary or the Minister for Northern Ireland Affairs, who is the person who takes the decision under their legislation. It is because of the necessity for a degree of political accountability that they have chosen that method and I would prefer to see the Minister for Justice being the person who directs that a person be detained for a further five days and who is accountable for that decision so that it can be raised immediately and in a political way if there is any question of abuse.

I am reinforced in this view by the fact that we do not have an independent complaints machinery. The Minister was not here this morning when we had a useful discussion on the fact that this independent complaints machinery should not be narrowed to emergency legislation, or terrorist offences, or this type of offence that we needed for the respectability of our enforcement of the criminal code in general and that the arguments are stronger if placed in that context. But we do not have any machinery in which the individual can complain against what he regards as an unreasonable exercise of that power by the Garda Síochána, machinery which is independent of the Garda Síochána themselves. I think that is another weakening factor, though it is not a determining one here. The determining one is the necessity for political accountability and the necessity for a political control over the scope of the legislation because the scope of this section can be enlarged at any time by the scheduling of further offences.

I would hope, when speaking on the section, to try to persuade the Minister of the very strong grounds for descheduling section 7 of the Conspiracy and Protection of Property Act, 1875, because there is now another section, the section in the Offences Against the State (Amendment) Act, 1972, on interference with the courts of justice which did not exist in November, 1972, when section 7 of the Conspiracy and Protection of the Property Act, 1875, was scheduled. There is now a different way of meeting that problem. It is possible, I believe, to remove from the list of scheduled offences section 7 of the Conspiracy and Protection of Property Act, 1875. That would remove one of the very substantial difficulties of the scope of this section but it would not remove the fact that at any time other scheduled offences can be added.

I share the views about the undesirability of bringing the courts into this procedure, for the reasons given by the Minister and also because I would imagine it would be difficult for a chief superintendent to be as frank in open court about the reasons for doing what he intends to do than it would be were he to be in contact with somebody such as the Minister. Therefore, I would support the proposal of Senator Lenihan and Senator E. Ryan that the Minister should accept the responsibility of making this decision.

I go back to the point I raised so consistently, that is, the very serious nature of the proposal to extend from two to seven days the period of detention and the inevitable enormous stress on the people who will be involved in this whole question of trying to control these illegal organisations who are, of course, the Garda. As many of us have said, we should try to protect them as far as we possibly can against the terrible alienation which has occurred against the RUC in the North and against people like prison warders and so on who have found themselves implementing what are politically very unpopular decisions, who themselves are innocent people but who are being subjected to pressures which become unbearable.

These pressures are essentially imposed by us in the way we handle the situation and the kind of laws we bring in in order to handle a situation. For example, even the way in which we operate our prisons with punitive rather than reformative attitudes. These rebound on the unfortunate warders. This kind of legislation can lead the Garda into positions in which they have to take up effectively punitive, aggressive positions vis-à-vis the people they are trying to get information from. Most people—possibly it has something to do with our history—are rather frightened of the police anyway. The prospect of being in custody in a Garda station or in a prison and the prospect of extension to seven days is particularly frightening anyway.

The gardaí were very understandably upset, as were all of us, by the dreadful deaths of their colleagues, Garda Reynolds and Garda Fallon. Under the pressure of that kind of situation to try to find the people who killed their colleagues it must be particularly difficult for a member of the force if faced with the possibility, not a very strong possibility, that he has the man who did it. Because he has these pressures of being watched by all his other colleagues in regard to making the wrong decision in releasing this person he will tend to err on the side of keeping the person the longer rather than the shorter period. I feel that this kind of burden should not be put on members of the Garda, that they should be able to have recourse to somebody outside the force so that they can share this very grave responsibility of extending the period of keeping the person in prison.

It is quite obvious from what we heard last night that this is the last time we are going to have a serious debate on this subject. Secondly, it is quite obvious that this is going to be a very long emergency, going on for many, many years. We are putting through the House legislation which is going to be on the statute book a long time as has been said on many occasions. The Minister has also said that we are going to go through a period of great economic stress in which there will be pressures other than those with which we are now dealing, pressures arising from defects in the economy, serious trade disputes and worker unrest. This type of legislation, particularly in regard to the points made on the scheduled offences not covered by the Trades Dispute Act extends the scope of what we are doing so very much that it is particularly important that the Minister should shoulder the responsibility rather than hand it over to somebody else.

From the political point of view I suppose, in a way, it is realistic of the Minister to say that we can do terrible things to one another in this country; we have done terrible things to one another since the State was formed. To some extent, there must be a certain validity in the case the Minister made. I had hoped we had moved through that awful period to a time when the possibility of any of us getting into a position of the kind of authority which the Minister holds at the present time, or any Member of Government, was remote. Possibly the Minister is correct. Possibly I am a little too trusting in that regard. It is rather a frightening reflection for the Minister to make. Most of us know that most Ministers in most Government Departments must make decisions in relation to situations such as making appointments to State boards and so on though they are obviously not as important as what we are discussing now. We also accept the political responsibility of appointing the Judiciary. That is a particularly important one. We do not hand that over. When talking about the Judiciary, I often used to raise this in the other House with the late Deputy Seán Lemass and other people and suggested that it should be passed to an Appointments Commission, the Civil Service Commission or some such body but the politicians have always reserved the responsibility of making a political decision in this very important area of the Judiciary.

The other terrifying power we do reserve to ourselves—which I greatly resented during my time as a Member of the Cabinet and wished I did not have that power—was the final right to take the political decision whether to have a person hanged or not. We do not leave this with the police or even with the Judiciary or the President; we keep this power to ourselves.

While the Minister's argument has a certain amount of validity in it, I can recall the discomfort there was when, I think, the Minister for Justice could commute sentences for drunken driving and so on. Forgive me for introducing such a trivial subject on such a serious occasion. We are all glad that he divested himself of that power. At the same time, this is such a serious power that he should accept direct accountability, rather than, perhaps, an unwise decision by a chief superintendent which he may have to come in here and defend. He must take the decision himself, be seen to be taking the decision himself and, in that way, be directly accountable for having taken it himself. We all know that the average one of us would defend, to the best of his ability, somebody else's decision, particularly one of our subordinates, in a situation of this kind and we would all accept that that would be the likely thing to happen. Where we were faced with a man who had taken the wrong decision, we would not be forgiving in relation to him. We would insist on him justifying the decision he took. I would support the amendment suggesting that the Minister should consider taking over responsibility himself for this decision.

I should like to refer to the Offences Against the State (Amendment) Act, 1940, in relation to internment. It may seem strange to refer to it but it is directly relevant here. The power to direct that a person be held in custody for a further period, up to a maximum of seven days, is like but is still substantially different from internment. It is not indefinite and is not for a long period; it is for a shorter and specific period. It is worth remembering that in the 1940 Act the decision to detain and intern for an indefinite period is a political decision of the Minister. Section 4 of that Act provides:

Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section.

That is an amendment because the original wording in the 1939 Act "that the Minister is satisfied" was construed by the courts as being an exercise of judicial function by the Minister and the wording was changed to "the Minister being of opinion" so that the Minister could exercise that particular function for which he would then be accountable. This is directly relevant to the section and to the exercise of a function in the section. I would like the Minister to take it into consideration when he is replying.

Perhaps I might deal with that point first. There is a certain irony in Senator Robinson advancing the powers to intern as being a justification for what is proposed——

Not a justification. It is relevant.

I presume it is advanced in support so, strictly speaking, there has to be a justification as being relevant to the argument. We have to distinguish the nature of internment. Internment was a blanket lock-up of an indiscriminate number of people for an indefinite period. It would be very much a political action and would be recognised as such. It would be a most exceptional procedure. Happily it has not been necessary now and I hope the situation will continue the same so that it will not be necessary.

It is clearly distinguishable from the power that is being sought now— which is in the realm of police procedures. What is being sought is in the area of police investigations, which is altogether a different matter from the Government of the day deciding that the rule of law has so broken down that it cannot be maintained through the ordinary legal processes and that internment has to be introduced. In that situation it is nakedly political. It is right that that particular act should be done by a political person. In this area of the Emergency Powers Bill we are dealing with the detention of persons for police reasons. The proper persons to make the decision is the policeman concerned not below the rank of chief superintendent.

I am reinforced in my argument by the general acceptance by Senators of the validity of it, that it is a bad principle to give to a political person the right to deprive a citizen of his liberty. I do not take it that there is any difference in the degree of accountability that would be available following the exercise by a chief superintendent as opposed to the exercise by a Minister. In practice there would not be, because the venue for accountability would be the same place, namely, the Parliament; the manner of accounting would be precisely the same.

Let us consider how much accountability there would be if it were the Minister as opposed to the Garda; let us consider how much accountability can be given in individual cases irrespective of whether the Minister or a chief superintendent signs the order. I could foresee a situation where it would not be possible or proper to give to Parliament the reasons for which an order was made, irrespective of who made the order. The matter might be of the greatest confidentiality with very serious security implications. Apart from that aspect, there could be reasons relating to the character of the person being detained. What is happening here is that the person is being detained on reasonable suspicion and it would not be proper or in the interests of the citizen that the grounds for that reason of suspicion should be debated publicly in Parliament.

The question of accountability cannot ever go into the minutiae of a particular case. Accountability means to ensure, via Parliament, that there is no abuse of the powers as a matter of policy and that the general operation of the section is what would be reviewed, in respect of which there would be an accountability to Parliament. That degree of accountability, which is the only accountability that can take place, can be achieved irrespective of whether a chief superintendent or the Minister for Justice makes the order. Once there is in essence no difference in accountability, we are then faced with the argument whether it is desirable as a matter of principle that it be a political person who would do it, or that it would be the chief superintendent who would do it. I stand firm in my argument. It is common case between us all that it would be an undesirable principle to admit this idea of a political person signing an order having somebody locked up.

Senator Browne said that keeping the power in the hands of the chief superintendent could be detrimental to the standing of the Garda. He was apprehensive that it could lead to the alienation that occurred in Northern Ireland between the RUC and a section of the population. That is not comparing like with like. The reason for that alienation was not the nature of the law that had been implanted but the partial way in which it was implanted. It is recognised that for a long time the police force was identified with a particular section of the commuity. I do not say that is still the position; I think it is not, and certainly strenuous and bona fide efforts have been made to rectify the position.

We are fortunate that our police force is not identified with any section of the community. No class, creed or political grouping can claim that the police force has any particular leaning or favouritism towards them. Our police force is seen to be an impartial, independent police force and has always so comported itself. So long as that continues to be the case—there is nothing in this measure which would make any change there and we can confidently expect that it will continue to be the case—I do not see any danger of the police becoming alienated from the population by virtue of giving this power to the chief superindendent. I do not think it opens the slightest chink in that regard.

Senator Browne said that governments make the political decisions. Of course they do. The appointment of judges, one could say, is a political matter and the procedure is one that could be criticised. I do not want to go into the area of trying to decide what the alternative would be because that would lead us to great difficulty, particuarly in a society where the legal world is small. Will they pick themselves? Will the candidate be one of the people making the choice? There are insuperable practical difficulties. The standards of rectitude and impartiality of our Judiciary are impeccable and nobody has ever criticised them on that score. Consequently, the method of picking cannot be that bad.

Senator Browne said I should not cavil at taking powers to lock up a person for seven days when the Cabinet can have the power of taking life. There is a serious distinction to be made here. The Cabinet do not take the life of a person sentenced to capital punishment but they can commute the sentence imposed by the courts. The courts make the decision as to whether capital punishment should be imposed. It is then a political matter whether the sentence is carried out. The Cabinet's function in that matter is a negative rather than a positive one but in this amendment it is sought to give the Minister for Justice a positive function.

Senator Robinson pointed to the precedents of procedures in the UK. It is somewhat ironic to point to precedents in that jurisdiction in this general area. The fact that the practice exists in that jurisdiction is their business. In regulating our business we should take account of what I think is a bad principle— giving to a political person the power to lock somebody up.

The question of a complaints procedure is not strictly relevant to the debate on this amendment as it has been raised. Such procedure is under consideration. It has not been ruled out and it will be kept under review. I will monitor the situation carefully from time to time, having regard to the comments made and to who made them. I must have regard to all these factors.

Senator Robinson suggested that, if there was such a tribunal, complaints about unreasonable behaviour by gardaí—unreasonable in the context of this section—could be made to it. I could not foresee that such a tribunal would be a proper forum at which to discuss that sort of activity by the Garda. I understood that it would tend more to deal with allegations of improper treatment of persons in custody. These are the allegations which are made from time to time. If there is unreasonable behaviour by the Garda on foot of the powers in this section the proper place to curb this misbehaviour would be in the courts. I submit that the courts would still have power to intervene if the activities carried out under this section were not lawful and not strictly in accordance with the section. That is where the citizen will find redress and more effective redress rather than in an administrative tribunal. We come back to the question of whether it is a good principle to give to a political person the power to make this order.

Perhaps the Minister would deal with the point about section 7 of the Citizens Protection of Property Act, 1875.

The House might take note of the fact that I o'clock has passed. Is it proposed to adjourn until 2.15 p.m.?

It is proposed to adjourn until 2.15 p.m.

If there is a possibility of disposing of these amendments in the next 15 minutes the House might agree to continue until 1.15 p.m.

On the section raised by the Senator—that is now a scheduled offence. It could in theory— I emphasise "in theory"—be caught here. I have already had representations about this matter from a trade union and I have undertaken to examine it. I shall examine it in the light of the section in the 1972 Act to which the Senator has drawn my attention. All I can do is to assure the House that the section will not be operated in regard to matters arising from trade disputes. That is not the intention. I can give that assurance.

The Minister cannot guarantee it.

So long as I am Minister for Justice I can guarantee it.

How can the Minister guarantee it when he no longer has control over direction?

Did the Minister say "would" or "could"?

"Could". I am saying it "could" be used but it "would" not be used.

The Minister cannot say it "could not" be used.

No. It is a rather anomalous legal position that has arisen. There are many anomalies in the law which in theory pose threats to citizens but which have never come to pass. I am satisfied that this is such an anomaly. I can understand that people may be worried by it and I am prepared to give an undertaking to examine it as quickly as possible to try and clear it up.

In conclusion, it is common case that the argument I have made is acceptable: that it is wrong in principle to admit a political person into the area of depriving a subject of his liberty. We are all agreed on that. It then comes back to the question of accountability. I submit, having regard to what I have said, that the measure and extent of accountability is identical, whether it is the chief superintendent or a Minister for Justice who makes the order. Once that is the case, and it has to be the case having regard to what I have said, the other argument I made must take precedence over all other considerations.

Very briefly—I have made my main argument in introducing the amendment—there is a basic disagreement in principle here but there is not much point in talking too long about it. This is fundamentally a matter for the exercise of political judgment. The British, in their wisdom over the years, have always had the Home Secretary accountable in this area of the deprivation of fundamental human rights or in any case of detention beyond the ordinary law of the land. There is a very good reason for this. The Government have recognised it as being a very serious matter. Our fundamental human and personal rights are written into Article 40 of the Constitution, the fundamental rights which always existed as common law in Britain. The Government have recognised the seriousness of this situation by making a political decision to introduce this Bill and to abrogate the Constitution for the purpose of detention measures enshrined in the Bill. They have done this for their own reasons, which I will not discuss.

This is an important political step. The reason the British have always insisted on the Home Secretary being responsible in this area is that, if it is reduced to being a mere routine police administration matter, there is a very grave danger of an infringement of human rights. The British have decided that there should be a higher or separate authority—that is, the Home Office with its political head—to review any such situation and exercise a political judgment. This is not narrow politics but politics of a different order. They exercise a mature political judgment on foot of advice from the Minister's own Department—the Home Office in Britain—as to whether or not the liberty of the individual is to be deprived in the manner set out in the Bill for a further five days. This is a matter where the Constitution is under suspension as far as this decision is concerned, where the Minister has a duty, in the absence of a Constitution, to make that important political decision vis-à-vis the liberty and freedom of the individual. That should not be reduced to a police procedure method, however honourable and fair these procedures can and try to be.

As the section now stands, the chief superintendent can do it. It will inevitably tend to become a routine administration matter. This is a matter which is very serious and, as the Minister is aware, very exceptional where this extra five days' detention comes into play. The Minister agrees with me that there is no internal administration problem as far as the availability of these advisers to be immediately contacted by the Garda are concerned, or his availability to sanction such a decision of extension, if necessary.

I think there is a very important matter of political principle involved. The Minister might disagree on that. There has been very good reason why the British have insisted during the centuries on ultimate political control in the area of human rights, the most fundamental human right being a person's liberty. We are talking about a matter which is the cornerstone of the British system, the habeas corpus procedure, the cornerstone of our Constitution under Article 40. That cornerstone is being taken away. At this stage I am not questioning the Government's reasons for doing that. That is another matter. But, rightly or wrongly, the Government have made a political decision here effectively to take away the protection of Article 40 as far as a person detained for the extra five days in accordance with this section is concerned.

I can see a basic disagreement in principle. The Minister thinks that this is part of police procedure one that should be left to the procedure of the police. I agree with the Minister that in regard to ordinary crime that is obviously right. It is not a matter in which the Minister for Justice here, or the Home Secretary in Britain, or a similar type Minister in a civilised state, should intervene. The police pursue crime in strict accordance with their procedures—that is their business —and it would be totally wrong for the Minister for Justice to intervene in any way.

But the Minister for Justice should intervene on a most vital political matter, where a person's liberty is being taken from him or her and where the apparatus of the State is being used to do that for a period that is longer than up to now, which it quite clearly is. That is why the Bill is before us. In that situation it is a fundamental political matter for the political head of the executive apparatus responsible for doing that to a person.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In subsection (3), lines 10 and 11, to delete "a member of the Garda Síochána not below the rank of chief superintendent" and substitute "the Minister for Justice".

Question: "That the words proposed to be deleted stand" put and agreed to.
Amendment declared lost.
Business suspended at 1.15 p.m. and resumed at 2.30 p.m.

I move amendment No. 6:

In subsection (3), line 12, to delete "five days" and substitute "24 hours".

The purpose of this amendment is, I am sure, quite evident to the Seanad because it is basic to the whole debate on the Bill. Fundamentally, our view is that without good reason declared, which we have not had declared heretofore by the Government, existing security arrangements and the existing detention legislation operating under the Offences Against the State Act, providing for 48 hours' detention, are adequate to cope with any offences against the State, which we deplore, but which we feel the Government can cope with, provided their security arrangements are adequate and provided—with which we agree—increased penalties are written into legislation as are written into the other Bill which will be before us shortly, that is, the Criminal Law Bill.

It is germane to our whole opposition that detention without trial, and without recourse to the Constitution, for five days is introduced on top of what has been there over a number of years, and has been regarded as reasonable detention, and would be so regarded by the courts to be sufficient for the Government to deal with the problems arising out of any endangerment to the State. However, instead of merely suggesting the deletion of the part of the section which provides for the extension to five days, in an effort to be constructive, and if there is a degree of urgency about the matter, we suggest in this amendment that we substitute "24 hours" for "five days".

Quite bluntly and straightforwardly, even though the Minister for Foreign Affairs described the matter as a mere technicality to the American businessmen in Killarney on Monday evening, this is not a mere technicality. This has been expressed here quite forcibly by a number of Senators who are concerned about the fundamental human rights involved in this matter. This is not a technicality. This is a matter of very serious importance. If a period of 48 hours, in the belief of the security authorities, is not sufficient for detention, we suggest that we should give extra authority, certainly, but we do it very sparingly in the interest of civil rights and human liberties. The Oireachtas should be very sparing in any such extension.

We dispute the whole motivation behind the introduction of this Bill. We largely support the other Bill. While opposing it in principle, we feel that if the Minister and the Government have a case for extending the 48 hours' provision, which has been there since 1939 and which would be supported by the courts as reasonable detention, they should make that case. To jump from that to seven days' detention, without trial, or recourse to the courts, or charges being made, is a very big jump if one has got the conscientious approach one should have in regard to the balance to be preserved, in regard to human rights as between the Legislature, the Executive, the police, and the ordinary members of the public.

We have a very real duty here to be guarded and careful about any extension of this right of detention. The period of 48 hours was written into the Offences Against the State Act, 1939. This virtually means that there is a suspension of liberty for 48 hours under that Act. That is about the limit one should go in this area. Too cavalier and casual an attitude has been adopted in regard to this matter by some Members of the Seanad and, indeed, by some Ministers, including the Minister for Foreign Affairs, but not the Minister for Justice, or the Minister for Lands who was here handling the Bill on his behalf——

Careful of the temperature.

——both of whom agreed at all stages that this was a situation in which detention of this kind would only be invoked by way of direction of the chief superintendent in exceptional cases of real emergency. The matter would be exclusive to particularly urgent and serious situations which would be deemed by the chief superintendent to be such. I appreciate that and, for that very reason, I felt on the previous amendment that this extension should not be a matter for the chief superintendent but for the Minister for Justice.

Similarly, on this amendment I feel very strongly that, particularly when we will have an opportunity in 12 months' time to review the situation if we so wish when the order comes before us. The Oireachtas should be very sparing in any extension of 48 hours' detention without charge, trial, or court discretion to look into the matter. We should be very chary and careful and circumspect and sparing in our attitude because of the seriousness of what is involved. We should not in an easy or casual manner despatch a citizen of this State into detention without his rights for seven days.

This again is relevant to a subsequent amendment. We should be very sparing and chary about any extension in that respect. I feel that we should make a start now in this legislation by extending the 48 hours by a further 24 hours. Then let us make our assessment in a free and open democratic manner by way of debate in Dáil and Seanad in 12 months' time, let us see whether the objectives that the security authorities may be seeking legitimately to achieve have been achieved by extending the time by 24 hours to three days and decide at that stage whether we retain the three days or look for another 24 hours.

In this legislation, following the abrogation of the Constitution in regard to this detention provision, we jump from the situation that has obtained since 1939 of 48 hours' detention to seven days' detention, just like that. To deprive the individual undergoing that detention of recourse to his constitutional rights raises a very serious matter that cannot be dismissed as a technicality. It was described as such by the Minister for Foreign Affairs. The Minister and the Government as a whole must have realised that it is not a technicality to suspend the Constitution in the title of the Bill and to revoke Article 28 as it has been revoked. I am sure there is a realisation by the responsible Minister that it is much more than a technicality.

It is a very serious matter and if it is a very serious matter involving individual and personal rights then I suggest to the Minister that the amendment in my name and Senator Eoin Ryan's name to substitute 24 hours instead of five days represents a responsible sort of advance into the area of infringement of human rights that the Legislature might consider to be reasonable, having regard to its functions weighing in the balance between the exigencies of the security situation and also the importance of preserving a basic personal freedom. That is why, in a constructive effort, Senator Ryan and myself decided that, even though in principle we are opposed to the extension altogether, and having regard to the situation in the Dáil where that stance by our party was rejected by the Minister, if there are exigencies in the security situation they might be met by some response involving a reasonable extension of 48 hours by a further 24 hours and to have three days' instead of two days' detention.

As I have stated, under the Bill we could review this matter as responsible legislators in 12 months' time and decide whether or not the three days had been reasonably operated and reasonably met the situation which obviously the Minister and the Government must be concerned about. If it has it can remain; if it has not, the Minister can come forward with a further suggestion and we here in the Oireachtas can consider whether an extra period of time is required.

We are dealing with something very precious, very important. We are dealing with the deprivation of personal liberty and we should, in any derogation from our stance, move slowly with caution, concern, care and consideration. It is far too serious a matter to be treated in a crude executive fashion. It is a fundamental matter, fundamental to the whole principle of democratic society. Being so fundamental, Senator Ryan and I feel that festine lente, hasten slowly, should be very much the order of the day by a responsible Government. We suggest that 48 hours having subsisted now for 37 years, an extra 24 hours at this stage might be a sufficient advance, pending a review of the whole matter in 12 months' time. To jump from a situation of 48 hours to seven days—involving the deprivation of constitutional rights and personal liberty—is far too great a leap, having regard to the situation that exists and the respect that is held by Irish people generally for human rights and the rights of the individual.

We are a people, thanks be to God, who object to any form of coercion. For hundreds of years we have had coercive legislation in this country. It is built into the Irish psyche, the Irish psychology, and it is not going to be eradicated from it by the Minister for Posts and Telegraphs. It is written into our psychology that we view with great suspicion any intrusion of this kind into individual freedom. We have 48 hours and if the Minister considers that its not sufficient we on this side of the House are willing to give him another 24 hours. Next year we are willing to have a look at it and if the case for increasing the period is made give him another 24 hours. We object entirely to him being given this drastic extension of the power of detention without charge, without trial and without recourse to the courts and the Constitution.

A Leas-Chathaoirleach, when proposing this measure to the Oireachtas the Government had to be advised on the details and we did not just draw the period of seven days out of a hat, so to speak. The period of seven days was proposed following the closest consultation with the police and the appropriate people to advise on the details of this measure. In coming to the conclusion that this is the appropriate measure to propose. we had the benefit of that advice and we were given details in the course of that advice of actual Garda experiences which confirmed us in the view which we are now putting to the Oireachtas that this power is necessary and the Garda do require it. We were given chapter and verse of instances where, if the power had been available, serious crime would have been prevented. Serious crimes would have been detected in the sense that the culprits would have been made amenable to justice and the proceeds of certainly at least one serious robbery would have been recovered.

I have given these reasons in this House before and on a number of occasions in the other House and it is wrong for Senator Lenihan to say the Government have asked for this power without giving any reasons. There has to be a certain amount of subjective opinion in what is the appropriate period for detention and one has to be guided by what one considers reasonable. On the case made to the Government and the case that we are making to the Oireachtas seven days appears to be a reasonable figure. If the period were ten days, somebody would criticise it; if it were five days, somebody would criticise it. Seven days appears to us to be a reasonable figure. Seven days from the point of view of the person in detention could be long—I concede that—but having regard to the purposes for which the power is asked seven days is not an unreasonable length of time to enable Garda investigations to take place and to ensure that there is no impediment placed in the way of those investigations, that witnesses are not interfered with, false alibis constructed and that there is no collusion to defeat the ends of justice.

It is not a power that we decided lightly to seek. It is a power that we seek with full acknowledgment of its essential gravity but we are satisfied with the case that was made to us. Senators will understand that the details that are given to us are of their very nature highly confidential, touching the realm of security and cannot be revealed. There has to be a certain amount of trust given and taken in these areas and it is on that basis that we have essentially to come before the Oireachtas. But the figure of seven days, I am satisfied, is the appropriate period in the circumstances.

To get back to a concept used by the Minister earlier, this is a matter of political judgment. We on this side of the House must accept at this stage that we are not going to succeed in preventing any extension of the 48 hours. We recognise that there is going to be some extension. But this is an effort to explore whether, if the power is necessary at all, it is really necessary to extend it to seven days.

Senator Robinson used a very picturesque and very relevant description when she said that we should be like misers, that when we were talking about anything that would infringe on civil liberties, on the liberty of the individual, we should give only what we felt was absolutely necessary and we should be miserly in what we give. This is an effort to be miserly. Is it really necessary to extend the time that a person can be detained to seven days? The argument is that the police want to keep the person concerned in custody while they make enquiries, they do not want their enquiries to be interfered with; they do not want any of the evidence to be destroyed and so on. There is a case to be made. Clearly I do not accept in all the circumstances that it is necessary to bring in this Bill or to have a national emergency but that is an arguable case.

Having conceded that, just how much is necessary? It is not a question of how many days extra are necessary, it is how many hours extra are necessary, because we should examine critically the extent, measuring it in hours not in days. We put down an amendment to say 24 hours; perhaps that is not quite enough. If the Minister were to compromise and say: "Well I certainly could not settle for 24 but I would settle for 48", we would certainly be inclined to accept that, or at least we would be inclined to say that this is being met in a responsible way, that this is not just a question of thinking of a number and saying that seven days is a nice convenient measure of time. This would convince us that all aspects of the picture were being examined, that the necessities of the security forces on the one hand were being considered, but on the other hand what is necessary, what is essential from the point of view of any infringement of civil liberties and human rights is also being considered.

Whereas one can appreciate that there is an argument for extending the time, it is very, very difficult indeed to accept that seven days is really necessary. What kind of investigations, enquiries and so on would take the Garda seven days? They are very efficient and a very highly organised body and they have everything on their side in the sense of making enquiries. Perhaps 48 hours is not quite enough but three days should be; if not three days at the very outset perhaps four days. Seven days seems to me to be just thinking of a number and going far beyond what is really necessary and justified.

The Minister in making this decision and in arriving at seven days has been almost wholly influenced by what the Garda thought was necessary and has not been influenced, certainly not to any appreciable degree, about the extent to which this was infringing on the liberty of the individual, and infringing on what was reasonable in all the circumstances, having regard to the fact that we are dealing with something that is very important. We are dealing with a serious infringement of civil liberties, the liberty of the individual, so serious that it has been necessary to set aside the Constitution in this regard in order to pass this Bill. We should be looking at this under a microscope. We should be saying: "Is another 24 hours enough or another 25 hours?" It should not be just approached on the basis of: "Oh, say seven days, it sounds a nice round figure." The purpose of this amendment is to enable the House to look at this in a reasonable and critical way and say that if the argument of the Minister and of the Government that there has to be an extension is accepted let us look at that extension and say that we will give what is really necessary but not one hour more.

I support this amendment because together with the deprivation of the right of appeal to the courts, which is very serious deprivation of a civil right, this one, the removal of the right of the individual to his personal liberty, is probably, after the right to life itself, the most fundamental of all liberties in a free society. Taking it away from the individual in this way is arbitrary. The Minister, being the final arbitrating authority has refused to give the safeguard of his own authority as to whether the freedom should be taken away. To give this authority to a police officer seems to me to justify the use of the word "arbitrary".

This is a deprivation of freedom and many of us are clearly uncertain as to what is the purpose of the extension of seven days. The Minister has been secretive about it. He says that he has information which he cannot give us but which has convinced him that certain crimes would have been prevented if the seven days had existed and that certain moneys would have been recovered. There is the device which was used in this House many years ago of the private session of Parliament, indeed used in Britain during the last war on a number of occasions, in which information of this kind was entrusted to the public representatives who respected the trust placed in them by the various authorities at the time.

Obviously it would be very much more reassuring to us if we could have the arguments which persuaded the Minister. Certainly in his old role as the liberal democrat in which we knew him in his days in Opposition, I certainly would have been prepared to trust him with a decision of this enormity in its implications.

Unfortunately circumstances seem to have compelled him to take on the reverse role to that, which appears to me to be authoritarian and dictatorial. He must justify that to his own conscience.

On the evidence we have had so far, simply the advice which the Minister has received has compelled him to do this. Taken together with the other things like the blowing up of the courthouse, the breakout of Portlaoise jail and the killing of the British Ambassador, these are simply a manifestation of an urban guerrilla situation which many countries have had continually since the last war and have dealt with in many ways, short of the suspension of this very important Article of the Constitution on individual rights, section 40.

The position here is that we do not know what will happen to a person within that seven days. Could the Minister say that all the Garda want is that the person will be held incommunicado, that he has no access to his colleagues or fellow conspirators outside? Is it simply that, his name and address and little else but that? Is the seven days intended to be a process of interrogation and is that going to be permissible? Then there are the other points raised by practically everybody, access to legal and medical advice and to relatives. Could we get assurances on all these points? It would certainly make the situation quite different. If we could have the information the Minister has it would be very valuable, and then if we could have the other information as to precisely what they want to do. If they simply want to keep the person in isolation so that he cannot affect witnesses, I do not think that is a very sound argument. The removal of the jury system and the establishment of the special courts answer that pretty well, and his colleagues are outside and intimidation can obviously go on.

What is the purpose of the extension of the seven days. Is it for the purposes of interrogation? If so, what limitations are to be placed on that, if any? It is no good our saying afterwards, like the Stormont Government people: "We are sorry it has all happened in our jails and that the British Army and the RUC behaved in the way they did." It is our job, above all else, to see that our laws are so clearly stated that the complete meaning is visible to everybody and that there cannot be any doubt or equivocation or room for individuals to interpret them in their own way. In this kind of serious situation there can be room for no doubt whatever. We are taking rights away from an individual, and it could be any individual walking the streets at the present time, completely ignorant of anything to do with any subversive organisation.

I recall reading that one of the people who were submitted to torture is completely innocent to this day. We are setting aside the whole judicial process of the District Court, the High Court and the Supreme Court in relation to taking away the existing freedom of an individual, a most elaborate judicial system which was built up over the years. As a measure of our respect, each member of all the parties added to it and improved it. Each party lent to it the dignity of their acceptance of its impartiality. It did not matter if Fianna Fáil, Fine Gael or Labour appointed the Judiciary; it was assumed they were independent. All that is being set aside abruptly, peremptorily, and we are taking an individual citizen and imprisoning him for seven days without trial and, as far as I can see, without redress. If he goes through this process of imprisonment, he leaves this prison at the end of a week an innocent man. By the decision of a chief superintendent who has absolutely no judicial functions whatever he has been sentenced to seven days in jail, having committed no crime whatever. A completely innocent man is taken in off the streets and locked up in jail and possibly subjected to the most frightening interrogation. I am leaving aside the possibilities of abusive interrogation, just simple interrogation in a place where day is turned into night, no windows, continuous, interrupted, the usual techniques of the pleasant man and the brutal man and so on. Is this type of interrogation going to be permitted or is it simply the process of taking a man and, in order to see that he cannot communicate with his colleagues, keeping him incommunicado in a prison or Garda station or this famous “other convenient place,” simply for the mechanical purposes of isolating him from the community? Could the Minister please clarify some of those points?

The Garda authorities in dealing with subversive or illegal organisations are dealing with, in the main, underground movements. Naturally in that sense it is not easy to get to the root of the activities in question. I am of the opinion that there would be a large number of innocent people brought in, interrogated and separated from their wives and families, for a period of seven days. In dealing with such organisations it is quite possible that many innocent people could be brought in for that period of time. The amendment in the names of Senators Lenihan and E. Ryan is one that should be accepted. It is possible that at least 50 per cent of the people interrogated would be innocent.

We are dealing with an amendment which seeks to limit the period of detention to an extra day instead of an extra five days. Senator Browne raised a number of matters which would be more relevant to the next amendment dealing with the question of access and that general area. In so far as he raised matters relating to this amendment I will endeavour to deal with them. It is not a question of innocent people suddenly finding a policeman tapping on their shoulder and saying: "Come along with me." The section quite clearly states that technically a person is innocent until he has been convicted of a crime. The suggestion that people who have never come under the eye of the law or who have never been involved in anything subversive or illegal are likely to come within the Bill is an exaggeration. The requirements are quite stringent in section 2. The arresting garda must suspect with reasonable cause certain specific things in relation to the Offences Against the State Act, scheduled offences and the other matters set out in the section. The guard must have reasonable cause for suspecting specific things. To arrest a citizen on a whim or on the off chance that it might lead to something else would be quite improper and would be an unlawful arrest. It would not get the protection which the Emergency resolution gives to this Bill. It is important to keep our sense of proportion in that connection.

Whether a person would be detained for the full seven days would depend on the particular situation. It is important to remember that the section provides for a period not exceeding seven days. The person might be released after five hours, 24 hours, three days. It will depend on the particular case.

A suggestion was made that, when this person has been brought to a police station or other convenient place, he will be subjected to all sorts of improper treatment such as interrogation without end, deprivation of light and so on. That assumption is quite unfair to the tradition and practice of our police force. It is a wrong analogy to argue that because it occurred in another jurisdiction we are in danger of it happening here. It does not follow because our safeguards are much stronger.

Undoubtedly when people are brought in the Garda will be pleased to receive any information that may be forthcoming from these people. That could be one reason for bringing them in. There may be documents to be found on them. They will search them and if they find documents there will be questions to be asked about such documents. The person brought in will be entirely within his rights in refusing to say a word. The gardaí will be entitled to ask questions. If they do not get answers, they will stop asking pointless questions. Another reason for the detention of a person might be that the person would be suspected, with sound cause, by the gardaí of having been involved in a particular conspiracy which is under investigation. His activities in that connection when he was at large might be seen to have been impeding that investigation. Perhaps he might be destroying evidence, as the Senator said or colluding with witnesses to provide false alibis. There could be numerous ways in which the detention of a person could assist the Garda.

The length of detention, subject to the maximum of seven days, will depend on the particular situation. It is assumed that every detention hereafter will be for seven days. That is an unjustified assumption. The maximum period is seven days. There is no reason whatever for the gardaí to detain a person one second longer than is necessary. I am satisfied that the maximum period of seven days is reasonable for the purposes required by the Garda. I have no doubt that the general public are satisfied and that there is no apprehension that the practices and procedures of our Garda will not be civilised and in accordance with proper standards. There is nothing in their tradition or history up to now to justify even an assumption to the contrary.

I can understand the Minister although I do not agree with him in his determination to get the powers that he wants under this section. What I cannot understand is his refusal to make the slightest concession to the concern which so many people inside and outside this House have in regard to the powers sought. If the Minister had been willing at earlier stages in this Bill to make some concession to the concern expressed on various points, then this section might have been more acceptable. The seven days might have been acceptable if there were enough precautions written into the Bill to deal with those who were subject to the powers. The Minister was not prepared to accept that there was a danger of an innocent witness being made the subject of this power, to detain someone for seven days. Up to now he has not been willing to accept the precautions that were proposed in regard to people who were detained, in regard to notification of relations and so on, and now in regard to whether something slightly less than seven days would be acceptable. He sees one side of the coin perfectly. He does not seem to think there is another side. As no concession whatsoever seems to be coming from the Minister about any of the concerns there are about this Bill, we have no alternative but to press this amendment.

I tried to make it as clear as I could that I was postulating a position where an individual was arrested by a garda who felt that he had reasonable grounds for the arrest. In the event, at the end of seven days if these reasonable grounds which he believed to be reasonable were shown to be unfounded this citizen has no redress for the fact that he has been imprisoned for seven days. I am not blaming the garda for making a mistake. I am saying he made a mistake and an innocent citizen has been deprived of his liberty for that seven days by this process. That seems to be a particularly serious implication of this.

Secondly, it seems to be established that it is possible and permissible for interrogation to go on in the context of a member of the Garda assuming that the person was guilty, otherwise he would not have been brought in; he would have had reasonable cause, presumably, to think the person was guilty but he could be mistaken. However, he would be interrogating an individual on the assumption he was guilty and withholding information. If a member of the Garda who was interrogating somebody, say, in connection with the assassination of the British Ambassador felt that the person had information which he was not disclosing and he had seven days in which to carry out this interrogation, I submit we are assuming a level of tolerance and patience on the part of members of the Garda which I could not claim if I found myself in the position of that garda. If I was certain the person was guilty I could not be trusted to ask questions for seven days and not get angry if he did not confirm my suspicion, putting it at its mildest.

Assuming that the majority of the gardaí are the remarkably controlled people the Minister assumes them to be, could we not, at the same time, allow that some of them—a minority of them, which is the case I have made all along—have not got this measure of self-control? One of this minority could be put in charge of a situation where there is an innocent person whom the garda genuinely believes is guilty and he is given seven days in which to question that person. The garda does not need to lay a hand on that individual, it depends on the individual's personality how easily he is frightened. Some of us are more easily frightened than others, some of us could take a good beating for a long time and not collapse. Other people could be frightened simply by being put into jail for 24 hours, never mind seven days. To that situation one must add the possibility of some of these other terrible methods of interrogation being used which we learned about from the recent Strasbourg situation.

The Minister has said that there are safeguards against this kind of thing happening. I am talking about the minimum of this, that is, simply questioning a person for, say, six, 12 or 24 hours a day, intermittently, with people coming in in relays. Is there a minimum number of hours, a maximum number of hours or an average number of hours laid down? What are the safeguards which can be observed to prevent a totally innocent person being subjected to the dreadful possibilities of being taken in, bona fide, by a garda who genuinely believes the person is guilty but, in fact, the person is completely innocent? What are the safeguards which the Minister can rely on in those situations?

Firstly, I should like to refer the Deputy to the section. After 48 hours the consent of a chief superintendent is necessary. At that stage, the intervention of a senior officer is provided for. There must be reasonable assumption and a chief superintendent must be satisfied it would be justifiable for him to intervene. That is a safeguard in itself.

The hypothesis posed by Senator Browne is so unreal that it answers itself. He says that it would be terribly wrong to have an innocent person subjected to questioning for seven days and I agree it would be a most unfortunate result, if at the end of seven days the garda's suspicions—we assume they were bona fide—turned out to be unfounded. I cannot see that if Senator Browne fears intensive interrogation for seven days that the lack of foundation for these suspicions would not become apparent much earlier. Nobody would suggest that once that position would become clear that the guards would, pointlessly, keep somebody arrested on a bona fide suspicion which subsequently turned out to be unfounded. This is something which would be established early on. No doubt, somebody in that category would be co-operating with the gardaí from the moment he arrived in the police station and would disclose his hand to the fullest extent. He would remove the suspicion which caused him to be arrested in the first instance. I consider it so unlikely as to be an unreal argument, to suggest that such a person would have to spend seven days, pointlessly, in custody. It is something the gardaí would establish very early on in the case of such a person because total co-operation must be assumed to be forthcoming from a totally innocent person. If that co-operation was forthcoming, the person's bona fides could be quickly established and the intervention with his liberty brought to an end.

There is a risk of any subject, in any situation, being deprived of his liberty for reasons which subsequently turn out to be unfounded. We can have cases of people remanded in custody by the courts and the charges subsequently being dismissed. They were brought on a reasonable suspicion which subsequently turned out to be unfounded. Therefore, it would not be a unique experience for a citizen to be deprived of his liberty under this section on grounds which subsequently turn out to be groundless. We hope this would be extremely rare but the remedy essentially would be in the hands of the innocent citizen to quickly and completely establish his bona fides. It would hardly be suggested that the gardaí should take him in and refuse to talk to him and keep him for seven days not giving him an opportunity to clear himself. That could be one consequence of the implied criticism that to question a person in detention would be wrong. If the person wants to reply he may do so; if he wants to stay silent he may do so.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 23; Níl, 13.

  • 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.
  • McGrath, Patrick W.
  • Mannion, John M.
  • Markey, Bernard.
  • Moynihan, Michael.
  • O'Brien, Andy.
  • O'Brien, William.
  • O'Toole, Patrick.
  • 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.
Amendment declared lost.

An Leas-Chathaoirleach

Amendments Nos. 7, 8 and 9 are related and may be taken together.

I move amendment No. 7:

In page 3, between lines 12 and 13, to insert a new subsection as follows:

"( ) A person in custody under subsection (3) of this section shall be entitled to have access to and consult a solicitor of his choosing at least once a day and to a registered medical practitioner at least once every 48 hours. In the case of a minor in custody under subsection (3), the Gardaí shall permit reasonable access to his parents or guardians."

This amendment deals with access to a prisoner. I have convinced myself that I am quite an innocent in this matter because I have "self-detailed" myself for quite some time now to take care of this amendment and otherwise to fulfil a commitment. I feel a certain amount of frustration because I wonder if there is any point in pursuing the commitment. Earlier Senator Robinson said that there is no likelihood of the Dáil being recalled to deal with matters arising from this legislation. That highlights the futility of pursuing matters other than to place on the record the intention of what is being prescribed. Maybe that is not a bad thing, but I believe that sometime soon a look should be taken at this situation. I can understand the restriction the Minister finds himself under in even being amenable to or conforming with what he said earlier about being prepared to accept reasonable amendments. I hold that my amendment can be safely described as reasonable, but the Dáil would not be recalled for that.

This brings me to the purpose of the exercise. At the same time, I would hope that the entreatments in the discussion of this amendment will have an effect on the minds not only of the Minister, but on the other members of the Cabinet who brought in this legislation. In this amendment I am seeking to obtain no more than what is in international conventions dealing with persons in detention, that is, access to a legal representative and a doctor. Of course, there is the other point in my amendment concerning a minor.

This situation can or may have become confused. I am not quite clear about the necessity for pursuance because I understand from my brief reading of the newspapers that some concession has been indicated in this regard in the other House. If this is co. it is very good.

Earlier we heard the Minister for Lands expressing what he described as the rights of a prisoner or, if you like, the rights of a person arrested. Bearing in mind the system which is in existence and knowing that the Minister has no power to issue instructions to the Director of Public Prosecutions I still believe that it would be very worthwhile for the Minister to spell out a prisoner's entitlements under this type of legislation, his right of access to a legal representative, a doctor and a relative.

I wish to refer to the point which I have made in my amendment about the situation affecting a minor. There are quite a number of people described as minors involving themselves in the difficulties which beset this 32 counties of Ireland. I could envisage a situation where a minor, in this part of Ireland, could be arrested and taken away. The parents arising from a natural anxiety to know where the boy or girl is, may go to the Garda saying they want to report their boy or girl as a missing person. You do not have to dwell on this too much to realise the dilemma that would exist there, the concern and the eventual embarrassment if it turns out to be something else. All this is concerned with access to a prisoner.

In this regard it is safe to take into consideration what Father Denis Faul said one Sunday a few weeks ago when he talked about the results of our Government's representation to the Commission on Human Rights in Strasbourg regarding the mishandling of people in the Six Counties. He made the point that the technique was something like this: a person can be arrested and ill-treated on the first day and by the time he is released there are no marks on him, therefore, it is not sufficient for the Minister or anybody else to say that there is access to the court for redress. Maltreatment has to be proved. Bearing in mind that our successive Governments found it necessary to pursue the case about the ill-treatment of prisoners in the Six Counties, we should not fall into a trap where we can be described as being two-faced in this regard. We cannot have it both ways.

A clear indication should be given as to a person's entitlements when under arrest. He should also have access to a solicitor, a doctor and a relative. I have already said that what has happened in the other House may have taken care of what I am submitting, but I have not to hand what was eventually decided upon and consequently I am pursuing my amendment.

I strongly support what Senator Mullen has said on this amendment. I will develop a point which was stressed by Senator Mullen, that is the position concering the position of a minor. There is no greater heartbreak for an average parent in Ireland than when he knows that his child is in the grip of a misleading ideology which involves the expression of violence in a most misguided way. Of course, that parent should question himself as to what criticisms he has made of the institutions which have inculcated and which have sustained such an attitude.

When teenagers are missing from their homes there is a great deal of fear and uncertainty as to where they might be. It is possible now that such a person may disappear for a period of up to seven days. What kind of feelings will arise in a home where such a person is missing? It might arise in the mind of the parent that the person may be involved in the commission of an act of violence in any part of this island, or may be involved in any kind of gathering. This is adding to the uncertainty, the fear and the terror in the minds of parents. Therefore, that category of person is extremely vulnerable.

It might also happen that a minor, by association with other minors, might become suspect. In that event a crucial point in the sociology of law arises. It is a point which I have made very often in this House without very great success. The point is that conviction before the court is not in itself the full totality of stigmatisation. If it is know that somebody was missing for seven days, as it might be known if the parents reported the person as missing, and later it was established that the person had been held in a prison or convenient place, the very fact that one had been detained is, in itself, a stigmatisation socially. It is the setting apart of a young person.

In discussing other amendments people such as Senators Mullen, Browne and Robinson have asked for these procedures of access to solicitors, doctors and relatives to be made explicit. We keep returning to two or three different things. It is said that the normal sources of access will apply. If the normal sources of access are so unproblematic why can they not be explicitly stated once and for all? Again, it has been said that by making them explicit one is somehow or other casting a slur on members of the force. That is dishonest. What we are asking for is that legal procedure and procedures for defence of the rights of the individual should be made explicit in such a way that the people who are involved in security and the people who are the subjects of it are absolutely certain as to the law. Certainty in law is established in legislation. Where, as a principle of jurisprudence, certainty can be written into the law, is not well substituted for by intention, or by the suggestion that later on your rights can be established.

Either of these two latter strategies are not adequate substitutes for regular explicit procedures and if the law is being extended in this way— as it undoubtedly will be—it was never more important that an explicit code of what is possible to a person so detained be written into the law. I know that when Senator Mullen is asking for this amendment he is speaking for the vast majority of trade unionists in this country. I, as a trade unionist, want this code. We want such a code not only for this legislation—we are very careful here —but we want it for legislation for all aspects of detention and investigation in general. Even though this debate might be becoming tedious for some now, it would be a generous response if the Minister gives us an indication that such a code is forthcoming for law in general and not only for this law.

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.

I should like to support these amendments in the name of Senator Michael Mullen. I am glad that Senators Lenihan and Ryan have withdrawn their amendment, which covered the same ground, in favour of Senator Mullen's amendments. It is important, in view of the powers given in this legislation, as a matter of legislative policy, to write in the right of access to a solicitor and to a medical practitioner. This is not to suggest that the medical practitioner must visit each day. But there is a right that can be exercised by the person detained on suspicion that they may be involved in or may have information about the commission or future commission of a scheduled offence, or an offence under the Offences Against the State Act. I do not want to dwell at length on the argument, or any arguments that have been put, both on the emergency motion and on the Second Stage of this Bill. I would like, if I might, to try to resolve a little this unresolved point about the right to a legal adviser. One thing about debating legislation of this sort, it does encourage one to do some homework. I would welcome some response from the Minister on this point.

As far as I can see, the latest case on the question of right to legal representation is a case on which judgment was given by the Supreme Court on July 22nd, 1976, the case of the State (Healy and Foran) v. the Governors of St. Patrick's Institution. District Justice Eileen Kennedy, District Justice Thomas O'Reilly and Others. It involved two juveniles and their right to legal aid before the courts. The majority view of the judges, in that case—and I have not read the judgment of the majority; I have read only the judgment of Mr. Justice Kenny who supported the quashing of the orders of the District Justice, because there was no legal aid to these two juveniles—appears to have been that there is a right to legal representation in such cases, like juveniles, before the courts. The judgment I have is that of Mr. Justice Kenny who argues, on a different line, that there is not a fair trial in those circumstances if the juvenile has not been told of his right to legal aid and has not had representation. I should like to quote from part of the judgment, on page 7, where it says:

Article 38.s.1 of the Constitution provides: "No person shall be tried on any criminal charge save in due course of law". This is to be compared with Article 40.s.4(1) which reads: "No citizen shall be deprived of his personal liberty save in accordance with law". The use of the words "in due course" are an echo of provisions in the Constitution of the United States of America which, through Coke's interpretation, come from Magna Carta. They emphasise that a trial in strict accordance with law may not be a fair one and when the Court is satisfied that this is the position, the proceedings should be quashed by certiorari. It would be foolish to attempt to lay down what constitutes a fair trial because its requisites change from generation to generation. Thus, for hundreds of years a prisoner charged with felony was not allowed the assistance of counsel and our judicial ancestors thought that, despite this, he was getting a fair trial. In every case the question must be whether what is complained of was a procedural irregularity or a defect which had the result that the accused did not get a fair trial judged by the standards at the time when the case is heard. If the High Court comes to the conclusion that the trial was not fair, it should grant certiorari. The cases in which this State side order may be granted cannot and should not be limited by reference to any formula or final statement of principle. The strength of this great remedy is its flexibility.

That is a very important articulation of the criteria of a fair trial and a very significant judgment and I am glad to have the opportunity of putting it on the record of this House, that is, some resolving of right to legal representation in a trial on a charge, and the viewpoint of either right to legal representation or what constitutes a fair trial. It is a very important case and I am sure it will be commented on in due course when it is published in the law reports.

We are not actually talking about representation with a view to trial but about the rights of a person detained on suspicion for a maximum of seven days. Obviously, that point could not have come before the courts—maybe it could under the 48 hours, I am subject to correction on this—but to my knowledge there has not been a case of that sort to resolve the rights of the suspected person of access to a legal adviser. If we wait for resolution by the courts, we wait a considerable time; we wait until an action has been brought by a person in circumstances and there has been a hearing before the High Court and a judgment given on it.

What I support is the other way of ensuring the right, that is, by active, positive legislative policy. The arguments have been put, the case has been made and I would ask the Minister realistically to ensure that at the first opportunity the right of access to a legal adviser, medical practitioner and the knowledge of next of kin of the whereabouts of a person detained be contained in legislation. There is a reason for putting it into this Bill because we are talking about the rights of a suspected person detained for seven days. We are not talking about the right to legal representation with a view to going for trial but about the right of a person if he is being questioned.

I do not know if we can be clear as to what is meant by the word "question" in section 2 of this Bill. The fact that it is inserted in the Bill, does it mean question which goes beyond the questioning allowed by the Judges' Rules? It is not the same as questioning under section 52 of the Offences Against the State Act, 1939, where a person could be required to answer the questions or else incur the penalties of failure or refusal to answer them. It is now clarified that section 52 is suspended for so long as section 30 is suspended. What is meant by "question" in these circumstances and how much questioning can there be over the seven days? Is it not totally desirable as a matter of legislative policy to write in a right to access to a legal adviser to a suspected person detained in those circumstances? Is that one of the basic guarantees of our system? I do not see what is the reason for refusing that right.

I am certain that whatever about the right to legal representation with a view to going to court on a serious charge, the question of a right to a legal adviser by somebody suspected, detained and kept out of circulation for a period of seven days is not resolved. There may be the latent possibility of mounting a case on it, but it is certainly not a matter of law at the moment and it should be a matter of legislative policy. Therefore, I would like to support the amendments in the name of Senator Mullen.

As Senator Lenihan has said, we are up against the reality that the Dáil has risen until the 20th October, that it is most unlikely to be recalled and we have to accept that the powers of this House are limited by that practical reality. I join with the other Senators in saying that if the Minister is not prepared, for that reason, to accept this amendment he should ensure that legislation is brought in at the earliest opportunity to express this concern as a matter of legislative policy and not leave it as an unresolved point which some individual sometime is going to have to resolve in order for all the people who may be detained under the section to have the rights which they should have of access to their lawyer and, if necessary, to a medical practitioner and knowledge to the next of kin.

Am I correct in assuming that the two amendments are being taken together? I did not realise that. If that is so, I feel it incumbent on me to say something in connection with amendment No. 8.

Acting Chairman

Amendments Nos. 7 and 8 are being taken together. They are related.

I think it is incumbent on me to say something in connection with amendment No. 8 which I did not address myself to. What I have to say is very simple. If the next of kin——

I made this point in the other House. I suggest the word "relatives" is a happier word.

Very well, I accept that. If the relative is not made aware of the whereabouts of the prisoner, I hold that is equivalent to kidnapping. The State sets out to condemn and treat kidnappers in the proper way. Nobody has a right to kidnap, whether it be an individual, a group or the State. There should be no indication of kidnapping here. This is why I plead that when a person is arrested the relatives should be told. There should be no difficulty about this. I agree that kidnapping is very abhorrent but we should not practice what abhorrent people do. We are living in a democracy and we should operate like one. We should at least acquaint the relatives of the person who has been arrested, not kidnapped. Otherwise it means we kidnap them.

I support the amendment. It is a pity that the Minister does not appear to appreciate how disturbed people are by this extension from two to seven days and its implications. The Minister gave a rather sardonic reply when I asked if it was intended that there should be interrogation. He said that you do not expect the gardaí to sit and say nothing to him for seven days. The Minister then went on to leave me in no doubt whatever of the two purposes of the extension to seven days of custody. They are, first, the isolation of the individual from his comrades and, secondly, the purpose of interrogation. It is on that point I am particularly worried. I asked the Minister about that; he replied that there were safeguards but did not say what they were beyond the reference to the chief superintendent on the second day. That means that the man on the third, fourth, fifth, sixth and seventh day would have no safeguards if the gardaí wrongly assumed that he was guilty and kept questioning him until the time expired and they had to release him. Therefore, as far as I can see, there are no safeguards.

It is for this reason I believe that the individual in custody should be given access to his legal adviser and, if he wishes, to his medical adviser, if he is ill, perhaps, a diabetic or a cardiac case or an emotionally troubled sort of individual. This is the right of any individual who is innocent of any crime. Nothing has been proven about this man. He may be guilty but I am concerned about the person who is completely innocent and who may have an illness and should have the right that he would have if he was outside the walls of the prison or the Garda station, to see his doctor if he felt he needed him and, above all, the right to have access to his legal advisers. The ignorance of the ordinary individual about his legal rights is notorious. What should he do? What should he say? What must he say? What may he not say? In what situation is he incriminating his family? What he does after he has had legal advice is his own business but he must have a right to that legal advice in the situation in which he finds himself.

The position in relation to legal advice, the right to see his medical adviser, the right to a visit from his relatives adds to the enormity of the deprivation of liberty already forced on him by the extension from two to seven days' custody. To have these rights are real safeguards. The chief superintendent may make a judgment about the activities of his subordinates but this still leaves one without any safeguards thereafter unless one has access to one's legal adviser and to one's relatives.

I am postulating the case of an innocent citizen for the time being as I do not have a general view about guilt and criminality. There are many individuals who are proven innocent even after the Garda take them in for questioning and genuinely believe them guilty. I am talking about the innocent person who finds himself in custody, totally ignorant of his rights, not knowing what he might say or what he should say or not say, and in that way is deprived of what must be a fundamental right.

Most of us have read the difficulties which counsel have had in recent months in getting access to those who have retained them. It appears as if there are anomalies, that there is confusion in the minds of the police and the prison authorities, for allowing legal advisers to have access to prisoners. That was bad enough when the period of detention was two days but we now have the situation where the seven days' detention could become an eternity to an individual isolated in a hostile environment, where he is assumed to be guilty of a crime of which he is innocent but of which the Garda genuinely believe he is guilty. One does not have to have much imagination to understand the positive terror of an individual helpless in this kind of situation, knowing that he is innocent and that he may say something which innocently incriminates him.

It is difficult to believe that we should have to put down an amendment about the minors. It is a horrific proposal that any youngster should be taken in and isolated from his relatives and kept incommunicado for a minute longer than is absolutely necessary. Speaking as a father and understanding the agony of a mother or a father in this sort of situation, it seems to me extraordinary that it is not written into our legal system that the Garda must immediately contact the nearest available relative in order that the young person may have access to that relative and in that way to mitigate to some extent the horror of a young person who finds himself in prison.

This is a final forlorn plea to the Minister to try to introduce into this dreadful legislation, this dreadful proposal of extending to seven days the incarceration of an innocent individual, the humanitarian request that he have access to his legal advisers. As a person who has worried all the time about what would happen to a person in this situation and who has been concerned about the dangers of interrogation, even question-and-answer interrogation in which there is no malice, I am aware that the effect that this could have emotionally on any innocent individual for a period of seven days is incalculable. Therefore I join with other Senators in asking the Minister to give us an undertaking that at the first opportunity he will see that this assurance is given and put on the Statute Books. I shall quote the provisions of the Standard Minimum Rules for the Treatment of Prisoners. This is from a resolution adopted in 1955 by the First United Congress on the Prevention of Crime and Treatment of Offenders. It is Rule 91 of section (c) which deals with the Rights of Prisoners under Arrest or awaiting trial. I quote:

An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

Rule 92 states:

An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

The other power is that he should have right of access to his legal advisers. These are prison rules which were generally accepted as long ago as 25 years. It is about time that we followed suit.

When Senator Mullen moved the amendment he drew my attention to the fact that I am on record as saying that I would consider any amendment that was reasonable. I made that statement and I stand over it. An amendment, to be reasonable, must comply with some criteria acceptable to me, the person proposing the legislation. What Senator Mullen or I consider reasonable might be two different things. To be acceptable an amendment must provide for something which is not there by law, that is, not just to add words for the sake of adding them or declaring something which is already part of our legal code. It must improve the legislation going through the House.

The first point I wish to make with regard to this group of amendments is that we must consider if they are necessary. Secondly, we must ask if they contain something which should warn us that the position which has obtained up to now has been unsatisfactory, defective or detrimental in any way to the citizen's rights or his position. I have no doubt that the rights sought to be achieved in these amendments are part of the personal rights guaranteed by the Constitution. Senator Lenihan quoted what I said on Second Stage as indicating there was some vagueness about the existence of these rights—that the dimension of the rights and the extent of their applicability and the cases in which they would apply, had not been defined. In answer to Senator Yeats, who castigated me for not knowing the law, I explained how a situation could arise where the law might not be available to be known. I want to clear that point. What is beyond doubt is that our Constitution, Article 40.3.1º states:

The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

I am advised that a person's right as a citizen is a right to legal advice. There is also a right to bodily integrity. That would contain a right to medical advice, when bodily integrity had been infringed. Consequently, I see no need to write into this statute something that is already part of our law. It is quite clearly part of our law, a constitutional right.

It has been suggested here that we should attempt to define these rights in statutory form. That would be going backwards because the strength of the rights contained in the Constitution lies in the flexibility of their definition allowed to a court in interpreting them in a particular case in which a court's decision may be sought. Mr. Justice Kenny, in referring to the entitlement to seek certiorari said—this would be the type of order which would be sought in order to establish these rights:

The cases in which this State-side order may be granted cannot and should not be limited by reference to any formula or final statement of principle. The strength of this State remedy is its flexibility.

We would undo that strength of that great remedy if we attempted to define in a statutory form what is guaranteed by the Constitution. The strength and protection for citizens lies in its flexibility. Any citizen who is aggrieved is entitled to seek redress in the courts and to have his rights determined in accordance with his particular situation in the light of his Constitutional rights as determined by the courts. That is what the courts are for and nobody can complain of that procedure.

On the other hand, if we were to attempt to devise a statutory formula to set out these rights it would be found that there is no such thing as unqualified rights. The individual citizen has rights, the State has rights, the people have rights in relation to individual members of the community, and legislation must try to hold the balance between these two sets of rights.

It could be an extremely pointless exercise to attempt to define rights which could not possibly cover every conceivable situation that might arise. In attempting to do so, one might limit the flexibility which the present position has. The strength of this great remedy—the remedy to seek one's rights—is its flexibility. Those were Mr. Justice Kenny's words. That is the strength of the present position—that the rights are part of the body of personal rights guaranteed by our Constitution. At any time, if there is an infringement of those rights or if a citizen feels he is not being granted his fundamental rights to the extent he thinks he should, or that they are being qualified in a way which he thinks is unjustified and beyond the reasonable qualification—there is no such thing as an absolute or unqualified right— his remedy is to go to the courts. That is what the courts are for and the person's right to do that is not taken away by this statute or by the fact that it is passed pursuant to the emergency resolution.

I am satisfied that what Senators are seeking—it was also sought in the Lower House—is already available. I have stated this categorically and I repeat it in this House. It is available by virtue of the provisions of our Constitution. The exact dimension of those rights has not been defined and it is proper that they should remain undefined.

It would take about three years to define them. A person cannot seek certiorari without a court order.

I disagree completely with Senator Robinson in this regard. There have been instances where persons have sought remedies where they were denied their constitutional rights, as alleged, and they got remedy the next day. They even got it the same afternoon. The reports of the courts are littered with such cases.

That is wrong. They cannot under this Bill, under Article 28.

We have had this already. The immunity given by Article 28 is that it saves the Bill from constitutional challenge. What would be at issue here would be whether there is a constitutional right to legal advice, that would be an entirely separate matter and could be the subject of constitutional challenge. That right is not excluded by the Bill.

The position is that in the law as it stands at present, the Constitution gives these rights. Of that I am well satisfied. What is being asked now is that these rights should be defined. I argue that so far as a citizen is concerned he is in a superior position by not having these rights defined, because the flexibility to which Mr. Justice Kenny referred would be missing. The position at present is superior to that which this amendment seeks to achieve. The rights of a citizen in regard to these matters is no less and no more than it was before this measure was introduced. I am satisfied that those rights exist under our Constitution.

The other point about which there has been much speculation is that suddenly these rights will be impeded. I must dispute that. Since 1939, we have had legislation on our Statute Book which provides for detention of up to 48 hours. I am not aware of any case where these rights were not made available to persons who sought them. It is inconceivable that, if there had been such a denial of rights during that time, no litigation would have resulted. It is a fair deduction to make that the rights were made available and that will continue to be the position. Should they be refused to a person, or should a person be impeded in the extent to which he has an access to his rights, then he has his remedy before the courts under our Constitution. The courts can determine, in accordance with the circumstances of that particular case, what the person's rights are, and whether he has been given them in accordance with the Constitution.

I am perfectly satisfied, and I am so advised, that the legal position is quite clear under our Constitution. Under the Constitution, the rights which these amendments seek to write in are part of our existing law. I personally think that is a better way to have this position than, as I say, to attempt to define them. For that reason, I am not prepared to give the guarantee to initiate the drafting of legislation to try to define these rights. This would be a preliminary matter for consideration to which I will give thought. Would it be better to define them, or is it better to leave them as they are in our Constitution guaranteed and inviolate and the courts there to enforce them? Is that position preferable to attempting their definition in statutory form? As of now, I am not satisfied that it would be an improvement to attempt to define them.

That is certainly a preliminary question that I would have to resolve first. That would take a considerable amount of study. As I say, my mind at the moment is leaning to the opinion that it is better to rely on our Constitution as it stands, and on our courts to interpret the Constitution for us. I want to assure this House, as I assured the other House, that I am advised quite categorically that the rights which these amendments seek to introduce in this legislation already exist.

I am not ignoring the advice the Minister has got but we should face reality about this matter. We talk about people's rights but an insufficient number of people realise their rights. A very small number of people understand their rights and entitlements under various Acts. There is nothing wrong in a democracy, especially under an open Government, in spelling out a person's rights. That is very important. It is not good enough for the Minister to say one has recourse to law. This is after the event. It takes money to go to law. It would save the State money, and also the appellant. if a person's rights were spelled out. What is wrong with telling people their rights in what is described as a democracy?

In his reply the Minister dealt with some of the points I was concerned about. He adverted to the right to legal advice and the right to medical advice. It may have been an omission on his part—I am reasonably satisfied when the Minister's response is put on record because it whets your appetite a little to say the least of it—but he did not make any mention of the point I have been making about access to a relative. I said next of kin. He said relative. He did not make any remark about the point I made with regard to minors being apprehended and their parents thinking they had been kidnapped or were missing. There is the question of the State not indulging in kidnapping as compared with a person or a body indulging in kidnapping. These are matters I would like to have dealt with here.

I am very conscious of the fact that it is too late to do anything about this. Amendments are futile now because common sense tells me—I take the point very ably expressed by my colleague Senator Robinson—the Minister will not recall the Dáil. He could make a declaration of his good intention to do something in connection with these salient matters. Otherwise the function of this House is meaningless and participation in a debate of this kind is meaningless. I do not see anything wrong in spelling out the fact that a person has a legal right to consult with a solicitor or doctor.

There is also an entitlement on the part of the State that apprehends the person to make it known to the relative where that person is, especially if a person is a minor. The person may not be a minor. He could be the father of a family who did not tell his wife or anybody else that he was involved in anything. He keeps it to himself, and suddenly he is not at home. The wife and other members of the family are left wondering where he is and she can get no information about him. It is incumbent on the State to get in touch with that woman instantly and tell her where her husband is. Very often when that happens the woman can give a good scolding to the man concerned and bring him into line. I would like to hear the Minister's comments on the points I am making. He cannot do anything about the Bill now. I believe this. There is no question of amendments being accepted. This is the occasion to spell it out and declare our good intentions on the amendments.

I find it difficult to believe the Minister is serious when he says we should rely on the Constitution. The Constitution, generally speaking, merely states principles. With regard to what we are talking about Article 40.4 says:

No citizen shall be deprived of his personal liberties save in accordance with law.

Article 40.3 says:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The Constitution merely states principles, but it envisages laws being made to enact and define these rights. If we were to rely on Article 40, and the bald statements made in it, it is true that the Supreme Court might eventually interpret it in such a way as to uphold the right of a person who complained he was not allowed to see a legal adviser, or was not allowed to inform his family within seven days, but it would take a long time and a great deal of arguing and cost for a person to get a decision of that kind from the Supreme Court.

The Minister said quite clearly and properly—and we all know it is correct—that the law in relation to this matter is not clear, that there is no clearly defined right of a person who is in custody. What is not correct is to say that this could not be done, that there is no practical method of defining his rights. Of course, there are methods of defining his rights. Of course, it is possible to introduce amendments of the kind which are before us today. Perhaps they would not define all his rights, perhaps they would not be impeccable and entirely comprehensive but they would at least define two rights—the right to see a legal or medical adviser and the right to inform his family of his whereabouts.

What is wrong with making a start, at least, in defining rights in the situation we are discussing? It has been suggested that this is not the Bill under which to do it. The Minister, when pressed, did not give any indication that because this is not the right place to do it he is going to do it somewhere else. If we are not going to do it somewhere else, let us do it here. Let us make a start. If the law is entirely uncertain in regard to these particular rights, let us try to define them to some extent at least. It is difficult to understand the reluctance of the Minister in this regard. The Minister has now got his Bill, the Second Stage has been passed, the question of the seven days has been passed, he has all his rights and powers and everything he wants. So far as the security force is concerned they have what they want, they can do the job they want to do and they are perfectly satisfied with the Bill as it now stands. There is no question, at this stage, of saying that what is asked will in any way impede the efforts of the security forces in doing their job.

We are now moving into a different area altogether. We are moving into an area where the rights of those who are held in custody should be considered. Some of them may, in fact, be people who have committed some kind of a crime, but at the stage about which we are speaking they are innocent people because no crime has been proved against them. As we have already complained, some of them may not even be accused of a crime. They may be people whom a garda merely has reason to believe may have some information.

It is very difficult, indeed, to understand the intransigent attitude of the Minister with regard to something which is clearly, under the Constitution and from every point of view, the right of a citizen. The only reason the Minister advances against agreeing to this amendment is that it is not really necessary and that the citizen has fundamental rights under the Constitution, fundamental rights which are certainly not defined at the moment, fundamental rights for which there is no legal enactment at the moment and rights on which it would take weeks, months and possibly years to get a decision from the Supreme Court.

What is the reason for not accepting this amendment? There can no longer be any suggestion, as has been suggested earlier on, that amendments put before the House would, in some way, impede the security forces. This is not going to impede them. This is not going to prevent them from doing their job. This is not going to interfere with their powers in any way. What we are talking about is the right of the citizen and, as far as we are concerned, he is a citizen who, at the stage at which this is concerned, is still innocent and may be somebody whom it is not even suggested has committed any crime. So it is difficult to understand the reluctance of the Minister to do something which he admits is necessary in the sense that the law is not clear.

There is some validity in the argument that this is not the right Bill or that it is difficult to amend the Bill at this stage but, of course, if the Minister had shown himself as sharing our concern and agreeing to the necessity of some definition of the law in this respect, if he had given some undertaking that this would be done in some other enactment or in some other way and if he showed that he really understood and appreciated our concern and would do his best to meet that concern, then the situation would be different. But he does not even seem to appreciate or make any concession to the apprehension which many people in this House and many people outside the House feel in regard to the situation in which people will find themselves under the powers of this Bill.

Senator Ryan highlighted my arguments perfectly when he said: "Let us even begin at this stage to define these rights to some extent". Of course, implicit in that, if one starts defining these rights, by definition one must start delimiting them, setting bounds to them. That is an inferior position to the position given by our Constitution where these personal rights are given and our courts then define them afterwards. Senator Robinson may laugh but I am telling her that the advice I have is that these are personal rights given by the Constitution and if we were to attempt to define them we would automatically start to limit them in accordance with the bounds of our definition.

I really must address myself to this question of the delimitation of rights by definition. I find it a very curious thesis and I propose to deal with it very simply and shortly. In dealing with that the notion of flexibility—as used by the Minister earlier—should be questioned also. How, in the name of goodness, could the systematic listing of basic procedures be regarded as circumscribing rights in general? Let me say what supports my contention. For example, suppose the Minister gave a promise here that he was going to establish regular procedure for the confrontation between those who might hold a person and a person accused. Should those definite procedures be inadequate or be less than the full expression of rights, the individual could go past them and invoke a fuller expression of his rights or the person in charge of the questioning could go farther than this list or set of definite procedures.

What has been set up by the Minister in his reaction to the Kenny decision is that a state of total vagueness allows for flexibility and that this state of total vagueness is better than any explicit definition of procedures at the point of encounter between the accused person and the accuser. I might say that, as a non-lawyer, reacting to the quotation of the opinion here and the construction put on it by two different people, I think that Mr. Justice Kenny hardly expected his use of the word "flexibility" to be regarded as synonymous with vagueness or, even worse, his use of the term "flexibility" to be regarded as synonymous with confusion or non-expression.

I think that what he meant was that a narrow or constricted expression of the rights of the individual in a code might not be the full expression of the individual's rights, but this is not to make the case that the Minister has made at all. You could have a definite code of procedure laid down which would not be the fullness of the individual's rights but would be guidelined as to the procedures that were appropriate in the encounter between the accused person and the person making an accusation. Having disposed of that the value of this lesser established set of procedures would be as follows.

You might say it would lead to some confusion in so far as it could be regarded as the fullness of rights. Perhaps it would but it would at least establish this. It would be the ground rules of the behaviour appropriate between the people apprehended and the people who were making the accusation and as such it would set an atmosphere which would inform that kind of encounter. More importantly, it would answer the tremendous public concern at present that there be some definite established context in which people deal with each other in this situation.

I want to turn to the third point. Having disposed of the idea that, for example, the flexibility is not affected one whit by the establishment of a code, the Minister's advice is unfortunate in that way. Let me say that as a practising sociologist in this country I have not been able to recommend any of my post-graduate students to do an analysis of social class relations within the commission of crime because of the quality of statistics available over the years since the foundation of this State. However, I do know that there is an opinion, which would be held by every practising criminologist in this island, that there is a class bias by nature represented in crime statistics.

I wonder how popular in people's minds is the notion that the Consituation is always there. We all know, if anyone examines the cases that have been stated which invoked the Constitution, that it is invoked rarely and by a minority of individuals within a minority within the population. To suggest that it is an adequate substitute at the end of the day for those who want guarantees about justice is a completely notional and abstract suggestion without a whit of proof and with every piece of evidence going against it. My advice to the Minister is that it is from the practice of the law, from what takes place in the execution and processing of the law that one must decide whether a piece of law is adequate or not. It is at that that the public will look. Many people in this House have said that the public are in favour of this and the public are in favour of that. There is an overwhelming feeling among the people at present that law and justice are extremely important and not only are they important but they must be seen to be accurate and explicit.

Therefore there are three points essentially. First of all this notion of flexibility in the Kenny case has been distorted; secondly the notion of constitutional resource at the end of the day is not a full democratic one and is more notional than abstract; and I have explicitly asserted that to demand a set of procedures, at some future date perhaps, is not in any way to limit the full flexibility which the Constitution allows. To assert otherwise is simply to say: "We believe everything vague because somehow or another this individual is very seriously done by. He can come back to the Constitution." It is poor, poor comfort to the average citizen. It is a very primitive notion of jurisprudence and goes very much against the certainty of law where it is practised in most modern democracies. It is unfortunate that the advice given to the Minister confuses such words as flexibility and vagueness and confusion, and does not assist him in trying to engage the great public opinion which is asking for certitude in the process of law.

I, as a lawyer, am very glad to hear the social and practical aspects of the law as it impinges on people, ordinary citizens of the community, as expounded by both Senators Mullen and Higgins because law basically must be a reflection, as far as practicable, of what is needed by the citizens of the community. Law must be the expression of their social aspirations and requirements and needs. I go along not with the type of argument made by the Minister but with a longer legal tradition that existed long before Constitutions were ever heard of, and that is that Parliament writes in the law specifically and passes that law. A famous judge, the late Chief Justice Lavery, always looked for the plain meaning of the section in any law, and that is an aspect of jurisprudence that appeals to me far more than talking about broad principles in a Constitution.

Of course it is necessary in our modern times to have a Constitution as a basic document setting out guidelines, but it is nothing like as important as the explicit writing of the guarantees under those guidelines into ordinary legislation that can be understood by ordinary people and interpreted by the courts as meaning the plain language in which it is set out. Indeed, there is no point in talking about constitutional rights to the citizen who cannot afford to avail of them. It was once said in a famous court decision, that the law was available to everyone like the Ritz Hotel was available to everyone.

Everyone cannot go to the length of taking a constitutional action and processing the matter the full way to decide whether or not this or that section is repugnant to the Constitution. What a Government should be doing is taking its guidelines from the Constitution and from court decisions, in particular Supreme Court decisions, and translating those guidelines into hard English in the form of legislation in hard language that can be explicit, understood and appreciated, whereby people or their legal advisers could go to a section in a piece of legislation and say: "Your rights are there", and proceed accordingly.

The Minister is, of course, half right in that there is a certain line of judicial decisions that would indicate that people do have rights of access to the court in certain circumstances. In the case of The State (Quinn) v. Ryan and Others, 1965 Irish Reports, the Irish police were acting on foot of a British warrant and trying to bundle a person across into the British Jurisdiction under section 29 of the Petty Sessions (Ireland) Act, 1861, and Chief Justice Ó Dálaigh held that that operation under that section was repugnant to the Constitution because it deprived a person of access to the courts as set out under Article 40.3.1.º That is okay. The effect of that decision was that the Chief Justice said, obiter dicta that every person had his right of access to court and could not be deprived of that right by the police bundling a person from one jurisdiction to another. He held that that section of that Act was repugnant to the Constitution. That was 11 years ago and that decision was on foot of that Article. Now what the Minister is suggesting is that somebody else who is being deprived of legal access under the detention procedure in this Bill can go ahead and take again his or her constitutional action.

Whether the constitutional action can succeed is very doubtful by reason of the withdrawal from the Constitution that is implicit and written into this legislation. It is not right that a person should have to proceed under a very grievous disability as to his or her success by reason of this withdrawal from the Constitution. The Constitution is there and judicial decisions are there in my view as guidelines to the Legislature and the onus lies fairly and squarely on the Government of the day to introduce specific and precise legislation that sets out the rights which are there in a broad way under the Constitution. There is no point in telling the citizen he has a constitutional right to take his case to the Supreme Court when, apart from the expense involved, his chances of success are seriously reduced by reason of this detention legislation related to the abrogation of the Constitution. That is the reality of the matter. What we are seeking is to write in here under these amendments, or something similar if the Minister's draftsmen can come up with something better, basic rights— in ordinary language, the right of access to a medical practitioner, the right of access to a legal adviser, the right of notification to next of kin, the right in the case of a minor of notification to parents or guardians.

That can be done, as is suggested under these amendments, at least once a day, at least every 48 hours, at least within one hour in the case of a minor, but the time is only a detail, but that basic right should be written in, and I cannot think of any reason why that should be regarded as something abstruse. The Minister comes up with the weakest of all arguments: "The Constitution is there, like the Ritz Hotel, open to everyone. You can all go and take your rights under the Constitution." But in order to do that you have to proceed to the courts and take legal action with the inevitable delay before a decision is reached and the prospect of a very doubtful outcome by reason of this legislation.

That is not the way a responsible Executive should be facing up to its problems. I suggest here—and I agree fully with what Senator Browne was saying earlier on—that it has not yet percolated into the Minister's consciousness the enormity of the decision to extend detention from 48 hours to seven days. This is a very substantial deprivation of human rights, a substantial extension of the existing situation. I think the courts would always have held 48 hours a reasonable period of detention and that that is the very limit they would hold to be reasonable. Indeed, that was written into the Offences Against the State Act, 1939, with great trepidation by the Minister of the time and introduced reluctantly and expressed to be so in its passage through the Dáil and the Seanad. The view held at the time was that the Government of the day were stretching the situation very much in writing in a 48 hour period of detention into the Offences Against the State Act. We are increasing that by five more days on the say so of a chief superintendent who will be operating under Garda procedures under the Garda security umbrella.

We are not protecting the citizen who may be involved in that type of detention. We can protect him by writing in the specific guarantees involved in these amendments. I appreciate the difficulties of writing it into this legislation at this stage, but I do suggest that the Minister take this up as a matter of urgency. I do not see why he needs to have any massive examination within his Department about this matter. It is a very precise matter. Maybe I am being too simplistic about it, but it appears to me to be very precise.

There are four categories of situations involved in the two amendments —access to the medical practitioner and the legal adviser, the notification of a relative and, in the case of a minor, access to parents or guardians. This is not an abstruse series of suggestions incorporated in these two amendments. They are very precise and if written into a Bill would be appreciated by people, and this comes back to the sociological point involved in what both Senators Mullen and Higgins were saying, that this is something that people can understand. This is not just Article 40.3.1º which reads:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

That is excellent. But that is not practical and meaningful as far as the citizen and his legal adviser are concerned. What does that mean as far as the parent of a minor or the relative of a detained person is concerned who goes into his or her solicitor and says: "my son—my brother or sister—has been held by the gardaí. We know where they are, we cannot get in to them. Can you make contact with them?" The solicitor has no section on which he can base his right and the Minister himself has stated in the House here that the position is unresolved, and he states here now that under the broad guideline of the Constitution there is a right existing. But if the solicitor concerned to whom that person goes can say: "Yes, section 1 of section 2 or section 3 of the basic access rights Bill in regard to detainees or prisoners or people in custody provides for that right. Go and exercise that right". He could exercise that right and automatically he would get it. That is the sort of right that is meaningful as far as the citizen is concerned. It is the duty of the Government of the day to ensure that constitutional guidelines and Supreme Court decisions of the kind that I have mentioned that touch on these issues are provided for.

That is what the Judiciary and, in particular, the Supreme Court are there for and that is what a Constitution is there for, to ensure that explicit laws are enacted implementing the guidelines. It is absolutely futile to talk about constitutional rights to the ordinary citizen of this land. It is only in a very exceptional case that he will proceed with the matter and only in a very exceptional case that eventually a decision will be determined favourable to him.

There is no point in the Minister saying, as his colleague was saying this morning and yesterday: "There was detention under the Offences Against the State Act. There has been a long tradition of this access being allowed, although it is not explicit in the legal sense". There is no point in talking in that airy fairy manner. It must be got into the Minister's mind that there is a big difference between 48 hours and seven days, and while it was detention of 48 hours at the outside, mostly it was only a case of a 24 hour detention. The matter did not arise because 48 hours was a reasonable period and people did not start to get excited about getting themselves out of detention within 48 hours. It is an entirely different ball game when they are in for a week. Furthermore there is a very serious danger, because the Minister cannot control every case, of rearrest after seven days. In this type of situation the Minister should take serious cognisance of the amendments which are offered. If people are detained for this long period they will want to know precisely what their rights are, and their relatives, legal and medical advisers will want to know precisely what their rights are. They should be spelled out in this legislation.

I understand that this Bill concerns people whose actions are not regarded by the Minister as being political. The Minister is on record as saying that this is so. We should not get mixed up in our jerseys. We are dealing with what the Minister would describe as everybody breaking the law. People breaking the law are required to conform with what the law spells out. At the same time, it is reasonable to advocate that the people responsible for administering the law should spell out a person's entitlement under that law. When this Bill has been enacted it is quite conceivable that innocent persons may be caught up in it and they will have to prove their innocence. Such people should know their entitlements and rights; it is imperative that they should. It has already been said that an insufficient number of our people know their entitlements in anything. This legislation is concerned with keeping people in custody. That being so, the person concerned is entitled to know his rights. He is entitled to know about access to a solicitor, doctor and relatives. So far I have not heard the Minister making any reference to the situation of a minor.

There is no need for me to elaborate on the situation affecting minors. Every day in the newspapers there are reports of minors participating in all types of violence in the Six Counties. Quite a number of minors have been arrested in this part of the country for the same types of offences. If the Minister is reluctant to spell out rights, could he indicate when there will be an opportunity given for the spelling out of rights? I am anxious to ensure that a person does not have to spend a lot of money to establish his rights. Thousands of people do not know their rights under any law, even in regard to social welfare benefits.

The State should always appear to be leaning over backwards to ensure that people exercise their rights and not appear as if they were depriving people of their rights. In that way we will demonstrate to the people intent on disregarding the State that they are not going to get away with it and, at the same time that there is a reasonable way in which they can be dealt with. Indeed, when they have time to reflect they will possibly recognise that they are living in a democracy. I would ask the Minister even for the purposes of the record, to indicate that time will be taken now for a person to know their entitlements. I know the Minister does not consider those who are interested in civil rights to be subversives or fellow travellers, as one of his colleagues said. Does it remain the duty of a body like the Irish Council of Civil Liberties to formulate a document setting out the rights of people under this type of legislation and then send it to the Department of Justice and say: "What do you think of that? Is it all right? Will we get the stamp on it?" Perhaps the Parliamentary Secretary to the Taoiseach, Deputy John Kelly, will use his influence, as vice-president of the other civil rights organisation which now and then comes to light and which objects to this type of legislation, to influence them. I want to ensure that people understand their rights. I am not trying to hide or protect people who are evading the law.

By now the Minister may have appreciated that his intervention and the argument he made does not stand up to analysis. He spoke about there being greater security for the citizen in a situation where the citizen has personal rights under the Constitution and that it it undesirable to put these rights into legislation and that it would be "going backward" to do that. It is the sort of point one can make at the end of a hard week's sitting in both Houses listening to arguments put. I do not wish to score points and hound the Minister on it. Nevertheless, I am concerned because there is a very important principle at stake. I should like to support the other Senators who have spoken and to identify that principle. The Minister seems to rely on part of the judgment in Mr. Justice Kenny's case which I have already put on the record. I should like to unravel that question of flexibility and then refer to the main point.

The part which the Minister referred to in Mr. Justice Kenny's judgment was:

If the High Court comes to the conclusion that the trial was not fair, it should grant certiorari. The Cases in which this State-side order may be granted cannot and should not be limited by reference to any formula or final statement of principle. The strength of this great remedy is its flexibility.

Mr. Justice Kenny was saying that the courts will grant certiorari if there is not a fair trial. He did not in his judgment to lay down specifically where there is not a fair trial. It should be open to the citizen to say: “I did not get a fair trial”, either because there was a breach of statute law, like the law of evidence relating to the criminal law, or codes of practice or lack of legal representation, which was the point at issue in this case. That is the meaning of the flexibility. It is a flexibility of the grounds of a fair trial on which you can apply for and get an order of certiorari quashing the order of the district justice.

The reality of this case is that the order of the district justice was given in January, 1975, and the Supreme Court gave judgment on it in July, 1976. That is quite good as Senators Ryan and Lenihan would agree, to get a Supreme Court judgment in that time. That is the sort of time lag that is a factor in it if a person has to assert his personal rights. Would the Minister not think that Mrs. McGee, who brought a constitutional action to assert her right to import contraceptives for her private use, would prefer to have that legal right to import contraceptives in legislation rather than to have to go through the agony, lack of privacy, perseverance and trauma of mounting a full-scale constitutional action in the High Court and Supreme Court to assert her personal rights under the Constitution? I have heard esoteric points of law and have been accused of making them myself but that really takes the biscuit.

How do the Garda know the sophisticated personal rights of the citizen, those latent rights, and how are they to be expected to observe them? The point has been put by Senators Mullen and M.D. Higgins that we are talking about ex post facto mounting of constitutional cases or legal actions to assert rights infringed. That is a most inadequate way of approaching the problem before us. I agree with Senator Eoin Ryan's interpretation of Article 40.3 about personal rights. The Oireachtas and the State must vindicate the personal rights of the citizens. The best way to vindicate them is to put them into legislation where appropriate. It is for this reason that I am somewhat dismayed by the Minister's general comment that he does not intend to examine this question of the right of a person detained for seven days to see a legal adviser, or a medical practitioner. But this right should be guaranteed across the board—a right of access for anybody held in custody. The Supreme Court thus only identified a right to legal representation in serious cases coming before a court. That is not at all the subject matter we are talking about when we are talking about section 2 of the Emergency Powers Bill.

I ask the Minister to reflect on the response to his contribution this afternoon and the dismay it would cause if he is not going to examine and bring in legislation to give a precise right to a legal adviser when somebody is held in custody and can be questioned by the gardaí, and, particularly, when the person can be held in custody for a maximum of seven days. This is a very important point and I am saddened and surprised at the Minister's approach to the subject.

I should like to ask the Minister how he sees the rights of a person under the section at the moment. When a person is arrested under section 2 of the Bill does he have a right not to answer questions until his legal adviser is present in the Garda station, prison or other convenient place?

Yes, in my opinion.

That is useful to have on the record of the House. That can be acted upon perhaps.

I support the other Senators who have so ably and eloquently supported the amendments. I am concerned that people can be detained for seven days. I am particularly concerned that it does not seem to be compulsory to notify the next of kin. If a person living along the Border is missing for seven days and the next of kin are not notified of his whereabouts, they can come to many conclusions. They may feel that he has been taken across the Border by the UDA or the SAS. Where will they get the information that will allay their fears? It is important that the Garda should be at liberty to inform his or her family where this person is being held.

I should like to draw attention to the fact that when the national emergency motion was put forward many Senators expressed themselves in favour of the thrust against subversion but put on record in that debate their reservations precisely about these minimum humane considerations. People were willing to go along with the seven day detention because they felt there was that degree of emergency. Surely it is distressing to the Minister to realise that of all the independent Senators only one remains on his side of the House in relation to the Bill. A great number of the Labour Senators have taken different attitudes against it. The weight of all that opinion, and the weight of the Lower House, has been resisted ultimately and very stubbornly by the Minister. It puts one into an odd kind of position to see the constant reiteration of the defence of the police, the pleading of their fine record and of their fair name over and over again the disclaimers about any possible abuse of that seven days' detention and the quite incomprehensible unwillingness of the Minister at the stroke of a pen to relieve them of all the odium that will attach to them inevitably when these minimum requirements are being refused.

There is a cloud surrounding the detainee's right to consult a solicitor, a doctor or to have contact with relatives. The Minister declares that the regulations concerning detention and those matters are unresolved. There was a chance to resolve them in this Bill but this has been deliberately refused. The effect of that seems to be quite sinister and quite incomprehensible. I do not think Senators are prolonging this debate because they want to be perverse about it. They are positively puzzled and disturbed about it on both sides.

This cloud of interrogation will hang over the entire process unless something is done now. It is hopeless to expect the Minister to recall the Lower House or accept these amendments. It may even seem perverse to keep pushing these amendments but what choice has one got? Either to yield to it and say nothing or else to use the only forum left to us to protest against it. I had hoped that I could vote for this Bill and I put on record my intention of voting for it if these minimal humane requirements were embodied in it. The amendments have been rejected and I am left with no choice but to oppose the entire Bill root and branch.

We have all learned a great deal from this debate. There are certain areas which will still remain absolutely impenetrable to me. Why, in the first place, consensus could not have been had between the two parties about the state of national emergency? Why this endless wrangle surrounds the Bill which is in spirit sound? Why have these comparatively modest adjustments been stubbornly and repeatedly refused? The entire measure, which had such a promising start, has been clouded and a very large area of suspicion and mystery created leading ultimately, to a vague feeling of distaste.

The whole vagueness of the situation in regard to the human rights referred to in the two amendments was highlighted in the question posed by Senator Robinson and answered by the Minister. Senator Robinson asked: "Has a person the right to have legal advice before answering any questions?" The Minister replied: "I think so."

I said in my opinion, yes.

Which does not diminish the point I am making.

I could hardly do more than give my opinion.

It clearly indicates that he cannot say that a person has the right. I have not participated in this debate at all and I will not vote on this because I agreed to pair with a Senator on the other side. If I was entited to vote, I would vote in favour of the two amendments even though on the Official Record I supported the measures in 1972 and again in the case of the condemnation of the killing of Senator Fox. I was gravely disturbed by the Minister's attitude to these points today. If such a decision is taken, the House will be branded as obscurantist and retrograde in its actions. In other words, it will say that a person in detention has not the right of access to a doctor and his whereabouts need not be conveyed to his relatives. The interpretation in the public mind will be that a person will not have the right of access to a legal adviser. This would be terrible.

The public are not aware of Article 40 of the Constitution. To use this as an argument for the denial of the rights requested in the amendment is wrong and will be meaningless to the public. I would appeal to the Minister at this stage to meet the situation by giving a firmer assurance than the one already given that he will look into these matters. That assurance is very vague. It is quite obvious to any reasonable person—the word "reasonable" has already been used to a great extent here—that these are fundamental human rights; the right to medical advice, medical care, legal advice and the right to inform relatives of a person's whereabouts. They should not be denied by any reasonable person. I know the Minister is a reasonable man and have always found him so and, as I said, he could meet the situation by entering into a firmer commitment than that already entered into.

If an impression of the type which Senator Brosnahan is fearful of goes abroad, it is the fault of this debate. I sense the impression growing, as the debate continues, that refusal to accept these amendments means a denial of the right to set out amendments, but that is not so. The point I am making is that these rights are available under our Constitution. I am not impressed by the argument that is inclined to regard constitutional rights as being less than perfect.

It is a pity that the Minister, as I said before, appears to have changed his mind, and this is disturbing. I recall him leading the other House along in his pursuit of points of this kind in emphasising the necessity to safeguard individual civil rights. If all he can say is "yes", then he is obviously acting correctly, but in using the phrase "in my opinion" he is introducing an element of doubt that his opinion is simply that of an individual. The element of doubt introduced into this dramatically altered situation—and this is the point which most Senators tried to emphasise—is where a period of 24 hours, which one hopes would be the period a person would find himself in custody, was extended to 48 hours, the period in the past, and is now being extended to seven days. The crucial change in the existing situation—extending the period to seven days—has altered the whole position in relation to four questions: the question of minors seeing their parents, relatives seeing their next-of-kin, the right to see a lawyer and the right to see a doctor.

The Minister is diffident about his approach to the question of rights. He says "in my opinion", and he is correctly diffident in the light of his other remark that the law is uncertain in this regard. The logic of these two points together would be that, as the responsible Minister, he should eliminate any uncertainty. He should be able to say to the House in respect of the four questions: the right of a minor to see his parents, yes; the right of an individual to see a doctor, yes; the right of an individual to see a lawyer, yes; and the right of the individual to have his relatives contacted, yes, and without any doubt. He must concede that he has been unable to say that to us with absolute certainty.

May I give an example if one started to draft that? Senator Browne says: "The right to see a solicitor, yes". I would say, broadly speaking, "Yes", but if the solicitor who presents himself is one who has been recently fined £250 for improper conduct and has been barred from visiting two prisons, and I have said "Yes" to the right to see that solicitor, what do we do with that gentleman? There is no such thing as an unqualified right. If we get into the area of definitions, it becomes a most complex subject.

It is not beyond the wit of the parliamentary draftsman to do that.

What about the right to a doctor?

Those rights are there but they are not absolute rights. I have given an example of why they cannot be absolute rights.

That is what the draftsmen are there for. They are paid for the purpose of drafting legislation along the lines we want.

The point the Minister is now making is that which we discussed in the amendment to the Prisons Rules which arose out of the unprofessional behaviour of a particular legal adviser. The basic fault of this Government seems to be that they allow the occasional malefactor to drive them into progressively attenuating, weakening, the democratic structure of our society and the civil rights and liberties of our people. In that way, as I said when I was quoting Newman, the retiring head of the RUC, we are creating a victory for the extremists and terrorists. If there is such a person who has broken his professional conduct behaviour pattern, that is a matter for the Law Society—and I will not discuss it now—but it could not justify the Minister saying "Because I am frightened that the prison authorities will be faced with a dishonest solicitor, I cannot give the rest of our people these rights." In other words we are legislating for the one individual.

I can say "yes" for all honest solicitors.

That is too facile.

We are now legislating by default for dishonest solicitors——

I will give an example of the practical results of trying to define this situation. If under the law as it stands at present a solicitor seeks admission but is refused, I have no doubt he will immediately get a court order granting him access. But if there is good reason for refusing him, he might not get the court order. That is the reality of the situation.

The draftsmen are there to draft legislation which makes the proper exemptions and exceptions.

Is it not now clear that the Minister has deserted the position he took up when he said he favoured the broad constitutional guarantee because of its flexibility, and that the reason he favoured the refusal to be specific about this amendment is because he is frightened by the possibility that the prison authorities will be faced with a dishonest solicitor and therefore we are legislating for the antics or activities of dishonest solicitors rather than the broad body of the legal profession, which is honest, and which does its job properly.

Who will be admitted without question by virtue of the right of the Constitution.

The solicitor would be admitted?

That is not in the Constitution at all.

If that is certain why can the Minister only say to us "in my opinion"? Why can the Minister not give us a certain guarantee that the solicitor, the relatives, and the doctor have immediate access? It seems to me that the Minister is putting on the police the responsibility of arbitrating in this question of constitutional rights. We have a position where a member of the Garda with somebody who has some kind of medical problem has to decide whether this is a diabetic, an epileptic, or some kind of emotional or cardiac problem, and whether this is the kind of case where he should permit the doctor to come in.

If the person makes an application for a doctor must he accept that application or has he discretion? If he has discretion, in what way can he exercise that discretion as a layman trying to deal with a medical problem? I do not think that is something that should be left to the members of the Garda. It should be built into our legislation so that there is no doubt whatever that on being taken into custody these rights which we have all referred to—the legal rights, the right to medical attention, the right to access to relatives, the right of parents to know where the minor is and, above all, the right to be assumed to be innocent until proved guilty— are made quite clear to each individual.

In listening to the Minister and throughout this whole debate there appears to be—I choose my words carefully—some kind of conspiracy amongst the two Ministers we have listened to here. I raised the question of the 1875 Act and the rights of individuals without the protection of the Trade Disputes Act. I remember Senator O'Higgins saying that he has flat-footedly denied that. As we progressed through the debate we found that he did not have the power to flat-footedly deny that. We are moving into this question of what is the purpose of the detention for seven days. It now transpires it is not simply the question of the isolation of the individual and other matters arising out of that, the protection of witnesses, interference with evidence and so on. We are now given to understand that the purpose of the seven day detention is to facilitate prolonged interrogation at the discretion of the Garda.

Nobody said that. That is Senator Browne's interpretation.

I am glad that the Minister is taking up this now because we want to be clear on this. What the Minister said was "Do you think the Garda are going to sit looking at him, saying nothing".

I did not say that.

The Minister did say that. I took it down.

I thought that is what the Minister said, too.

The Minister ridiculed me, because I made the suggestion that all they were going to be asked was their names and addresses and whether they knew anything or not, and then they would be left alone. He ridiculed that suggestion.

I did not.

We have established —and this is the disturbing part of this whole debate—the evasion and the conspiracy within this Government to conceal their true intentions in regard to this legislation particularly arising from the deterioration of our economic situation and the defects of the law in relation to trade unionists, on which he has now given an undertaking to Senator Mullen to do something about. Now we have this question of the real purpose of the seven day detention which is not only isolation but interrogation. It would seem to me that this is four square with the refusal of the Minister to give what would be real safeguards against harassment under interrogation—the right to legal advice, legal representation, the right to talk to relatives at reasonable intervals daily, and the right to medical advice if that is required. If these people were going in and out of jails or in and out of the Garda stations, then there could be no abuse of the interrogation process. If the Minister did not suspect, or did not know as a matter of fact from the Garda, that they want a free hand in regard to interrogation over a prolonged period in order to break down these witnesses, he would accept these perfectly reasonable amendments.

Amendment put.
The Committee divided: Tá, 14; Níl, 22.

  • 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.
  • Robinson, Mary.
  • Ryan, Eoin.
  • Ryan, William.

Níl

  • 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, Andy.
  • O'Brien, William.
  • O'Toole, Patrick.
  • Owens, Evelyn.
  • Prendergast, Micheál A.
  • Sanfey, James W.
  • Whyte, Liam.
Tellers: Tá, Senators Mullen and W. Ryan; Níl, Senators Sanfey and Harte.
Amendment declared lost.

I move amendment No. 8:

In page 3, between lines 12 and 13, to insert a new subsection as follows:

"( ) As soon as is practicable, but not later than one hour after an arrest under this section, the Gardaí shall inform the next of kin of the person kept in custody under subsection (3) as to the place of custody to which he has been removed."

Amendment put.
The Committee divided: Tá, 14; Níl, 23.

  • 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.
  • Robinson, Mary.
  • Ryan, Eoin.
  • Ryan, William.

Níl

  • Boland, John.
  • Codd, Patrick.
  • Connolly, Roderic.
  • Daly, Jack.
  • Deasy, Austin.
  • Ferris, Michael.
  • FitzGerald, Alexis.
  • Mannion, John M.
  • Markey, Bernard.
  • O'Brien, Andy.
  • O'Brien, William.
  • O'Toole, Patrick.
  • Fitzgerald, Jack.
  • Harte, John.
  • Iveagh, The Earl of
  • Kerrigan, Patrick.
  • Lyons, Michael Dalgan.
  • McAuliffe, Timothy.
  • McCartin, John Joseph.
  • Owens, Evelyn.
  • Prendergast, Micheál A.
  • Sanfey, James W.
  • Whyte, Liam.
Tellers: Tá, Senators Mullen and W. Ryan; Níl, Senator Sanfey and Harte.
Amendment declared lost.
Amendment No. 9, by leave, withdrawn.
Business suspended at 6.10 p.m. and resumed at 7.15 p.m.

I move amendment No. 10:

To add to the section a new subsection as follows:

"(7) A person who has been arrested and kept in custody under this section shall not for a period of six months following such period in custody be subject to the powers contained in this section."

The purpose of this amendment is to remove the possibility that a person could be arrested and kept in custody again and again. It is generally acknowledged that the power given under section 2 is a very extreme one, a very unusual one, and one which would only be exercised in unusual circumstances. It is possible that the power could be used in such a way as to subject an individual to successive terms of seven days in custody and could be used in effect as a kind of internment, of indefinite detention. I am quite sure the Minister does not intend that that should happen. I am sure it is unlikely it would happen but, nevertheless, the power is there. It is possible that the security forces would be plagued by some individual who was obviously up to no good, that frequently they would have some reasonable cause for arresting and keeping him in custody for seven days.

To remove the possibility, no matter how remote, that the power contained in the section would be abused in this way the amendment is designed to ensure that if a person is arrested and kept in custody under the powers contained in the section, it cannot happen again for a period of six months. I am sure the Minister will agree that this is a perfectly reasonable amendment, in the sense that what it envisages is perfectly reasonable. I am sure he will feel it is not necessary. If it is acknowledged that this is a very far-reaching power, something that should be used only in very unusual circumstances then to say that it cannot be used in relation to the same person more than once every six months is not an unreasonable restriction of the powers contained in the Bill. In order to avoid something which may not happen but could happen, I would ask the Minister to accept this amendment.

I sympathise with the thinking behind this amendment. The same thoughts were expressed in the Lower House. It was also said in the Lower House that some Deputies were aware that the existing power to detain for 48 hours had been abused to their knowledge in some instances where successive arrests were made. I stated that I was not personally aware of such instances and, of course I would be distressed to hear of them. I invited Deputies to bring them specifically to my notice and said they would be dealt with.

It would be unlawful in my opinion for the measure to be used in that way because the prior conditions before an arrest can be effected are such that it would be inconceivable that they could exist successively at the end of the period of detention. They would have been exhausted and they could not recur if the person were immediately let out and then re-arrested. They could not recur and therefore the arrest would not be in accordance with the section and would be unlawful. I readily admit that there could possibly be a very short interval. There could be even as short an interval as a day between the arrest and a subsequent arrest, but the subsequent arrest would also have to comply with the conditions in the section. Because of the short interval, the onus on the police would be that much greater to be able to stand up to any claim that they were not acting with reasonable cause. That is the deterrent against an abuse under this section.

To provide by statute that there would be an interval of six months would rob the measure of its effectiveness. It could mean that a person who would properly fall to be detained, perhaps even one month after being released, would know that he could thumb his nose, so to speak, at the Garda for six months. In practical terms I do not think we can limit the right to re-arrest.

A limitation is contained in the wording of the section itself, that a re-arrest, especially after a short interval, would put a very heavy onus on the arresting garda to be able to stand up to any legal attack on him that he was acting unlawfully. The immunity which the Bill gives does not extend to an unlawful use of the powers of the Bill, so if a garda were to attempt to use his powers unlawfully he would be open to be constrained by the courts at the suit of the person in respect of whom the powers were being exercised.

Which law would the garda break by arresting him again in a month or so?

If he did not have reasonable cause to suspect that he had committed and all the other things which are in the section.

Suppose he had?

If he had he would not be breaking the law and he would be entitled as it stands to re-arrest even after a short interval. What we want to avoid is any injustice or abuse of it. The protection against an abuse of it would be the fact that there would be a heavier obligation on a garda to justify reasonable cause after a short interval. The shorter the interval, the heavier the obligation. It would be my opinion that it would not be possible to have reasonable cause to permit arrest immediately on release. I do not think that would be possible as a matter of fact and it would immediately raise the issue that the garda was acting without reasonable cause. He would then be open to sanctions.

I am not going to press this amendment. On the balance of probabilities it is unlikely that the section will be abused in this way but nevertheless I think it is possible. There is a danger that it could be used but, unlike some of the other apprehensions we have about this Bill, the balance of probabilities on this one is probably very much lower than the others.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 and 4 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
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