I am not opposing the penalties proposed in this section. They are quite unrealistic and possibly will have some effect in the sense of intimidating people or making them think again before committing crimes, although that experience does not indicate that sentences of this kind have any real effect. It is true to say that even those who have committed murder in the last 25 years, who are, theoretically, serving life, in practice rarely serve more than seven or eight years. In these circumstances sentences of up to 20 years are unrealistic. I say this merely to query the reality of stipulating sentences which might have been realistic or in accordance with this kind of law some years ago. As the tendency is more and more towards limiting imprisonment to ten years the stipulation of 20 years must be regarded as a little more than a gesture. As regards some of the other subjects where lesser sentences have been introduced, for instance, the increased sentence for membership of an illegal organisation from two to seven years, there is a lot to be said for increasing them if it has any effect on the courts. At present there is a two-year sentence which is rarely imposed. If the seven-year sentence will have the effect of encouraging the courts to impose a slightly longer sentence, then I think there is some justification for this one. In regard to the 20 years' imprisonment, I believe it is little more than a gesture. It is something I do not think is worth imposing. On the other hand I believe that the existing sentences for usurpation of the function of the Government or obstruction of the Government, which are now ten years and seven years, are unlikely to be imposed. It is unlikely that anybody found guilty of these offences will be sentenced to longer terms than the existing terms laid down. However, I should like to say that it is unrealistic in regard to anybody actually having to serve a sentence but it may be of some purpose in highlighting the gravity of the offence in question.
Criminal Law Bill, 1976: Committee Stage.
I do not agree with Senator Ryan when he says that these sentences are unrealistic. He bases his argument on the fact that people sentenced to life imprisonment for murder are released far short of the full term. They are released after seven, eight or nine years. That is so but if they were unsuitable for release or if there was reason for detaining them far longer they would be detained. The reason why people of that category are released is that it becomes clear at some stage that further imprisonment is of no assistance to them. Their progress within prison, their attitudes towards their crimes, the attitudes in the communities where the crimes were committed, family background, family attitudes to the offenders and their realisation of what they have done, and the most supreme consideration, the likelihood of repetitions of the offences, all of these things are seriously considered. Happily, we have been able to release most people sentenced to life imprisonment for murder after the comparatively short period of seven or eight years. It is a long time in prison. Some people convicted of murder have been in prison much longer. These cases stand by themselves. I have no doubt that persons convicted under these sections who might be given very long sentences would have to serve out their sentences unless the prison authorities and the Minister for Justice of the day were completely satisfied that there would be no repetition of the offence and that there would be a complete break from the activities which led to the commission of that offence.
It is now important to repeat that any expectation on the part of subversives of an amnesty at some stage in the future is a vain expectation. Those who are sentenced for terrorist crimes need not expect to have their sentences suddenly ended. They will have to serve their sentences in the normal way and they will get the normal remission like any other person convicted of a criminal offence. They will not get anything more than that. It is important that this would be said clearly so that the full deterrent effect of these new penalties would come home. They are intended as a deterrent and I want to be quite frank about that. It is important that their deterrent effect would not be blurred by any false expectation of an amnesty.
This section provides for many increases in the length of prison terms. It is a cause for concern to all of us that for some time maximum penalties were not meted out by the courts. The reaction of the general public to this situation was that if these penalties had been meted out—it is difficult for us to dictate to the judiciary—there may not have been the necessity to increase the penalties in section 2. We can only hope that the courts, because of the concern expressed by the Oireachtas, will now take sufficient cognisance of how serious we treat these offences and that we increased these penalties so much. I hope sentences to correspond with the gravity of the situation will be now conferred in the courts.
I welcome the section as it is now framed, as I mentioned last night on Second Stage. The original section as it stood was completely unacceptable introducing as it did a form of press censorship and a general curbing of rights in regard to expression of opinion that would not be acceptable to any reasonable person in our civilised community. The section as now drafted is tighter, and rightly so. It is geared to get at what we should be trying to get at, the person who tries to corrupt a younger person by way of recruitment or indoctrination into an unlawful organisation.
I am glad that our amendment introducing the word "recruit" is now highlighted in the introduction of the section. Basically the section as it now stands is getting at the people we should be getting at. As it was originally framed it was getting at general political comment. It is now been narrowed down and I am glad the Minister thought fit to meet this point of view in the Dáil. It is now narrowed down to the specific case of people recruiting, inciting or inviting another person to join an unlawful organisation or to take part in its activities. That type of recruiting agent who tends to be in a position of command or superiority or otherwise and has inflamed young minds in the past—some of them are still doing it—that type of despicable person is rightly now nominated in this section as the person who commits this serious offence. The Minister very rightly in the Dáil gave way to this point of view and got away from the rather ludicrous manner in which the original section was framed.
I should like to say a few words on the section in its present form and in its original form and invite the House to consider the offence with which, essentially, it is dealing. That offence is one of incitement. When I was introducing this measure on Second Stage in the other House I felt I had to justify the insertion of the section at all in the sense that I would be asked to justify it on the grounds that incitement is already an offence under common law. It is an offence of long standing and clearly an identifiable offence. My justification was that the offence is, perhaps, not fully understood and being a common law offence it has never been specifically defined, even though it is well understood and refined by judicial interpretation from time to time. There was a doubt in my mind about the offence of incitement. It is a specific thing in ordinary terms. One could say it is the urging of another to commit a crime. That is a full and proper definition of incitement. But whether that would get at the type of person who is engaged in something perhaps slightly less specific than that I do not know.
The example I gave in the other House, speaking on the amendment, was take the person with the collection box, rattling it and saying, "Support the IRA". That is a type of action which might fall short of incitement, the urging of another to commit a crime. Nevertheless, that type of action is something that causes a lot of offence and disquiet to most citizens and they want to see it curbed. That type of action can show itself in many ways. The collection box is one way; the handbill with a message that is not clearly identifiable as incitement; or some of the newspapers, not the underground press —there is some expression to denote the type of paper I have in mind—who print letters whether they are genuine or editorial in which this message is also given. It was important, I felt, that the law would be strengthened in this regard and it was for this reason that it has been made an offence now to incite or invite—this is a new word I would readily agree if it was submitted to me that the term "incitement" already includes inviting; I think it does. For the same reason I did not introduce the word "recruit" originally because I was advised, and I fully accept it, that incite must include recruiting. On the basis of the rule that a criminal statute must be construed strictly there was a danger that if we had the word "recruiting" by itself it could be construed in the strict dictionary meaning of the recruiting sergeant, the person who actually does the signing in and not the person outside who does the "come-on" or the propaganda work. It was for that reason the word "recruiting" was left out. It is a useful word to have in. It highlights what we have in mind for the information of the public.
The important change is that we now use the word "invite" specifically in a statute and the offences inciting or inviting another person or persons to join an unlawful organisation or to take part in, support or assist his activities and this is the significant extension. The other words which have been excised by the amendment in the other House—"expressly or by implication, directly or through another person or persons, or by advertisement, propaganda or any other means", were inserted for the purpose of advertising to the public how this offence might be committed thereby putting the public on their alert. The public, of course, includes everybody. It includes people in all walks of life and that does not exclude journalists. Those words were put in to highlight how these offences could be committed. Removing the words does not alter the position one whit, because the offence of inciting or inviting another person to do these things has to be committed expressly. If it is not committed expressly it has to be committed by implication; it has to be committed directly. If it is not committed directly it is committed through another person. It has to be committed either orally or by advertisement or by propaganda or by some other means.
That is all the excised words said. They described how the offence of incitement can be committed. The section as drafted did not impose censorship, nor did it make anything an offence, except in the marginal area that I have mentioned, which was not already an offence. It is hardly being suggested here that the media wanted a licence to commit offences. That would be doing them an injustice. Senator Lenihan said that it was implicit in the argument that press censorship was a consequence of the section as originally drafted. I want to take pains to demonstrate that that was never the position. The section as drafted essentially stated in statutory form what was already the law. It did not create any new laws or impose any new restrictions.
It was already an offence for anybody in a newspaper to incite the commission of a crime. That position has not been changed nor is it essentially altered by the Bill. Likewise, it is not an offence to make a political comment, but is it an offence, and always has been, to incite a person to commit a crime under the guise of political comment. That always has been and will continue to be the position because there cannot be a licence to commit crime under the guise of freedom. We have laws for the purpose of restricting such conduct.
Section 3 will be a useful section because it points out the need for care henceforward for people not to be involved in any way in supporting or assisting the activities of the IRA. This is something which answers a serious public need and will reassure many people. I am sure Senators have had the same experience I have had from outraged members of the public asking "Can nothing be done about that fellow and his collection box?", or, "How was so-and-so allowed to make a speech in such terms?" People might be outraged by the general tone of a speech, but whether any particular speech will offend the law in the sense that it will be an incitement to commit an offence, will be a matter to be assessed not by me or by any political person, but by an independent public official, the Director of Public Prosecutions. We can rely on his discretion to take prosecutions only where it is genuinely merited. There is the further protection that before a person can be convicted the courts have to be satisfied that an offence has been committed.
On the other hand this imposes a duty on the papers to be careful. I heard one editor say that he consults his legal adviser regularly. That is a good practice and I would urge him to continue it, particularly having regard to what is in this section. We will all want to keep within the law. This is an important section and I am glad that in its form as now amended it satisfies everybody. It will be an effective section.
It is extraordinary that we are told now that the changes in this section have not made any change——
I said that in the other House too.
"Not one whit" were the words used.
It does not change its legal effect although it changes the appearance of the section.
That is extraordinary. If it does not make any change, why did the Minister resist the change for so long.
I did not resist it. I said it changes the profile of the section but not its legal effect. I said this in the other House, too. I accepted the amendment as soon as it was moved.
All I can do is recall what the Duke of Wellington said on a famous occasion to somebody who said something similar to what the Minister said: "If you could believe that, you could believe anything".
I do not know what we are arguing about because we are all pleased with the section as it now stands.
Nobody can regard as responsible the sort of attitude adopted by the Minister when he stated categorically that the administration will deal with this section as it would have dealt with the other section and he feels entitled to proceed on the same basis because it does not make one whit of difference under this section as compared with the section as originally framed. The fundamental matter in all legislation of this kind is the attitude of mind on the part of the Minister and the Government of the day.
Happily, it does not come back to that, because that does not matter once the law is passed. It is then a matter for the courts and the wording on the statute.
If that is the attitude of mind, it shows a total lack of appreciation of the real problem involved in dealing with illegal activities. I am going to be very strongly in support of further provisions in this Bill dealing with Garda powers of search, apprehension and so on, but in this area of public political activity and comment the Minister should tread very warily. I do not see anything particularly obnoxious about editorials in The Irish Press, The Irish Times, or Irish Independent or letters written in the correspondence columns of these newspapers. I read The United Irishman, its editorials and political comment. The Official Sinn Féin Party are a registered political party of this House. Fianna Fáil have a policy approach to the Northern problem which recommends strongly the phased disengagement of the British presence in Northern Ireland. There is bound to be political comment and debate in this whole area. There are people who believe that a united Ireland is the only real solution to our problems, South and North, stemming from the existence of unlawful organisations.
This whole area of legitimate public political comment and debate is one which should not be infringed or impinged upon by any legislation of this House. If the Minister states that the amendment does not make one whit of difference, he discloses an insensitive mind. If the law is going to be administered on the basis that the amendment does not make one whit of difference, to quote the Minister, and seeking to get at legitimate political comment and agitation, collection boxes, and so on——
Accompanied by shouts of "support the IRA". That is the example I gave.
If a man comes to me and says "Up the IRA" or up anything else——
But not anything else.
——I can reply appropriately to him. I am a free man, in a free society, and I can tell him what to do with the IRA.
That is fair enough but if he wants to collect money from you for that organisation, what do you do? Does the Senator think the IRA should be permitted to collect money publicly in our streets?
There is legislation to deal with that.
You would not say "No"?
I agree with the Minister, but there is separate legislation dealing specifically with that.
Yes, a £2 fine for collecting without a permit.
The Minister knows the law is there. The section as originally phrased——
We are all happy with the section now.
The Minister has introduced this by saying here in open forum that as far as he is concerned there is not one whit of difference between the section now and as originally drafted.
I said that in the Dáil as well.
I know, but what makes me slightly outraged is that that attitude of mind is reflected here in public.
That is freedom.
What the Minister is saying to the public, to the media and to Parliament is that you can have your amendment and be damned.
We are accepting the amendment because it does not take from the principle of the section. All that the section says to anybody is "Keep the law".
I hope the courts will take cognisance of what we are saying here. I regard the tightening of the section as very fundamental. I do not regard it as not making one whit of difference.
Happily, the courts do not take any account of what we say here.
Indeed they do. The Minister is well aware that judges are part of the community. They take cognisance of what goes on in the community. Otherwise it would be a deplorable state of affairs.
The courts would construe from the words of the statute and not from the debate.
I am talking about the judges' attitudes. Judicial attitudes are conditioned by the community in which they live, and by what takes place in this Parliament and what is reported as taking place in this Parliament. They are not living in a cocoon. I hope they take the construction of the section as it is now drafted and do not take the Minister's construction: that it does not make one whit of difference. The section as it is now tightly constructed is aimed at the real inciter or recruiter. The Minister has not referred to this at all. The Minister is not talking about the dangerous people at all. He has a bug about political commentators, about political agitators, and comment and so on. The Irish people are a very intelligent, constructive, mature sort of people and are highly responsible in the political sense.
They will not be led astray from their basic views by political comment they do not agree with. Let there be letters to the newspapers, let there be political comment, let there be political agitation and movement. That is good for democracy. What I am primarily concerned with, as one of the people involved in the drafting of this amendment as it now stands, is that the sort of person we should be getting at is the motivator or corruptor of young people, those who inflame people by oratory and recruit them into illegal activities at an immature stage of their life. There are numerous armchair generals of that kind throughout the country. They are the kind of people this section should be aimed at. I hope the section as it is now tightly drafted will get at these people, specifically any person who recruits another person for an unlawful organisation or who incites or invites another person or other persons generally to join an unlawful organisation or to take part in, support or assist in its activities. That is the way the section is now drafted. The section as it was originally drafted:
Any person who expressly or by implication directly or through another person or persons, or by advertisement, propaganda, or any other means incites or invites another person to join an unlawful organisation",...
Phrased in that wide manner it included all forms of legitimate political comment. In effect it was introducing censorship of the media.
It was not doing that at all. It could not do that but because of the unfounded fear that it might do that I accepted the amendment.
I have no doubt in my mind that the amended section gets at the source of the matter and that the section as it originally stood included all forms of legitimate comment, legitimate press comment, legitimate public comment, and legitimate political comment. Now that it is more tightly framed I hope the courts interpret this section tightly. I hope they do not interpret it on the basis that the Minister has stated that the section as now tightly framed and drafted does not make one whit of difference compared with the original section. I am sure the courts will interpret this section in a very narrow tight attitude of mind. If the courts adopt the sort of attitude expressed by the Minister, that it does not make one whit of difference compared with the section as originally drafted, then we are back to square one as far as the attempted muzzling of political and press comment is concerned. I have confidence that the courts will recognise the climate in which this debate has taken place, the strong motivation on the part of many of us at all levels—in the press, within our party, independent commentators— to ensure that any section like this should be tightly drafted so as to get directly and specifically at what one wants to eradicate and not have a wide drafting which could give rise to a wide interpretation which could include legitimate political comment.
It is very important that this section be interpreted by the courts tightly and not on the basis of what the Minister said, that it does not make one whit of difference. This area is one in which we should be very careful to have tight drafting and careful laws. The section as it now stands has that. I am certain that the courts will interpret it accordingly, will interpret it as getting at the type of offender I have in mind, and will not include what is basic to our democratic way of life—legitimate, public and press comment on political matters.
This is probably a dangerous area for one such as I to enter between such able debators as Senator Lenihan and the Minister. I take it that the Minister is confirming that the press still does not have the right to incite people, that this section applies to all members of communications, be they press or radio, as well as to every other member of the public? The original section as it was drafted left some people in doubt, particularly members of the press. Their doubts were stimulated by discussions in our party about the possible interpretation of this by the press. Certainly we never had in mind to include political comment, such as takes place every day. The leader writer in the Irish Independent seems to be hell bent on destroying the Labour Party. There is nothing wrong with that if he feels that that is good material for him to write; it does not necessarily incite people to violence. I see absolutely nothing wrong with it. What concerns me is the ideal expressed by Senator Lenihan to which each of us aspires, the ideal of a united Ireland. Members of the Labour Party declared that long before many others. The Minister's party also aspires to that ideal. I do not think for one moment that any of us can give the right to any newspaper to advocate the reunification of this country by illegal organisation. Section 3 is specifically, to ensure that if we aspire to the reunification of our country by the democratic process which we believe in, then nobody can condone incitement to violence or to join illegal organisations to achieve that ideal. This is as I interpret section 3. This is what I am voting for—the right to political comment, the right to report what they hear and see, without inciting other people to take up arms against the democratic institution of this state.
I welcome section 3. It is not for me or any other Senator to tell the court what to read into that section. It is the business of the court how they read that section and how they judge a person by it.
I welcome the section. It is necessary. We know what has been happening over the past few years. I remember away back in 1939 when a member of the IRA decided he would leave the organisation: he was shot dead outside the church gates in Dungarvan. That incident left an imprint on my mind. It is about time somebody stood up to the IRA and I congratulate the Minister for introducing this legislation increasing the penalty to a term not exceeding ten years in relation to those people who support the IRA or invite people to join that organisation. Indeed, I do not know whether or not it is enough. Anybody who knows anything about IRA activities over the past number of years should accept this section and not alone accept it but support its acceptance every way he can. This is relevant especially to Members of the Oireachtas. We have an influence on young people. This is evidenced from our votes. We should help parents to convince young people that the IRA is not an organisation to be in. They should support the law. This section is necessary.
I want to say categorically that, when this section was originally drafted, it was not intended as a censorship section. Neither could it ever have a censorship effect in the sense that it would prohibit the publication of things that were not in themselves unlawful. That would be censorship. If it did lean in that direction or achieve that end it would have been clearly unconstitutional because the freedom of our Press is guaranteed by the Constitution. The position is tha there was a misguided and an unfounded interpretation——
It was very well founded.
——that it was likely to have that effect. In answer to those beliefs—I firmly believe they were unfounded—I removed the words which gave rise to this unfounded apprehension. The section is essentially the same section as when it was first introduced. Its legal effect is not changed one whit. The law remains now as the law always was; that is, that incitement to commit a crime—nobody wants to take the right to incite, least of all newspapers— is itself a crime. That remains the position and the section is designed to highlight that. As Senator Lenihan rightly said, get at the armchair generals behind the scenes corrupting young people.
Just to show we have a strongly assertive attitude in regard to handling the whole question of illegal organisations and crimes of violence, I welcome this section. It is a practical type of section which enables search warrant procedures on behalf of the Garda to be expedited at sergeant level. It is a practical strengthening of the provisions of the Offences Against the State Act and, therefore, essential. It is the kind of provision we had in mind in supporting the broad principle of the Bill. It was obviously a bit archaic to have these procedures at inspector level. Inspectors are not to be found everywhere. I have the fullest confidence in the Garda sergeant rank which, and I am sure the Minister will agree, is the key responsible rank in the force. To give power, as in section 5, at Garda sergeant level for the searching of a premises on the basis of the superintendent being reasonably satisfied that there is evidence of the commission or intended commission of a crime is an excellent way in which to improve existing procedures.
I also note that this section extends section 29 of the Offences Against the State Act to other than documentary evidence. This again makes sense. The whole range of evidence can be a reasonable cause for such a search warrant to be issued. I welcome the section. It is a practical example of the type of thinking and reasoning which should be in the Bill as a whole rather than raising unnecessary hares. It represents practical improvement of police procedures which, I believe, will really enable the problem to be tackled.
Apart from agreeing with what is being done in this section and with what Senator Lenihan has said, I approve of the way in which this has been done. Instead of amending section 29 of the 1939 Act we are substituting this section for it. That is certainly a way of approaching these amendments of which I thoroughly approve and which I have often asked Ministers to do, instead of trying to amend a section by adding words or deleting words and so on. Apart from agreeing with the content of the section, I am very much in agreement with the way in which the amendment has been made.
I wonder whether or not what I said on the previous section applies to this. In the explanatory memorandum "escape from custody" has been dealt with in several previous Acts, including the Tumultous Rising (Ireland) Act, 1831. It is a pity we do not have such colourful titles on our Bill nowadays as they had at that time. In any event, the note refers to the fact that at least three previous Acts deal with aiding, abetting and escaping from custody. I should like to ask the Minister whether he regards section 6 as more or less consolidating the law on "escape from custody" or whether this merely adds to the original Acts or whether in order to get the law on aiding a prisoner to escape or attempt to escape, we still have to look at all three, four, or five Acts, as the case may be?
No. I do not think there will be any need to refer back to the old Acts mentioned in the explanatory memorandum. The law with regard to escaping from custody is part of the common law and we do not propose to make any statutory change in that regard. This Bill is primarily an anti-subversive measure. The law generally with regard to escaping might be left for another day. The law of aiding has a peculiar significance here—aiding or assisting escape from custody—because the more notorious escapes are those carried out by subversives or attempted by subversives and they can only be carried out with a great deal of help from the outside. It was felt that that area had to be tightened up in this Bill. Old sections referred to in the explanatory memorandum will now fall into disuse. They were couched in very archaic language. It will not in any way complicate the law that they are still on the Statute Book. Now this will be the modern provision dealing with this particular offence. If we had not to give so much attention to this type of legislation I and my Department might be engaged in the more practical and enjoyable work of tidying up and getting rid of these archaic laws from our Statute Book. I can assure Senators that these will fall into disuse, will not cause any confusion and there will be no necessity for lawyers to have to go back to read all of them together.
This is a tidying up of the existing statutory common law situation, and I think it is legitimate.
It is not possible to repeal the other Acts?
It would be possible but it would involve a fair amount of extra study because, when one gets into that area, one would have to read the old Acts very carefully and decide precisely what extent of repeal was necessary. Quite frankly, it was an added burden in the drafting of this emergency package.
This is a tough section in regard to the powers of the Garda Síochána. There has been certain opposition to it from certain quarters. I do not agree with the opposition to it. I agree with one section. It is part of what I was saying, that this is a sort of legitimate tightening up and strengthening of the investigatory process on the part of the Garda Síochána.
The same remarks apply here.
Briefly, the Opposition have indicated that they are opposing this section. I think I can assume, broadly, the argument that will be put forward, which was put forward in the other House. Let me say that it was only because the Government are conscious that we are in an emergency situation that they felt the powers proposed to be given here should be given and that it is only in such a situation that this step should be taken. We are very conscious and proud of the fact that our peace has been secured and maintained for us by an unarmed police force. It is the intention to continue that policy. We are also very conscious of the fact that the prime law enforcement agency of the land is the Garda Síochána. That important principle is not being interfered with in this section. That important principle has been maintained and vindicated in the section. The first important point I want to make with regard to these new powers is that they are not being conferred by an Act of Parliament directly on the Army. They are not being conferred on a Minister to operate, as he thinks fit, from time to time by the Army. They are being conferred on the Army via the agency of the Garda Síochána, the law enforcement agency of the State that we have entrusted with keeping the peace for us and enforcing our law. The Garda themselves will be the people who will decide when it is neat, apt and appropriate to invoke these new powers and invoke Army assistance. This is as it should be because it recognises and vindicates the fundamental principle of the primacy of the police in the law enforcement area.
The Army have always had a role in the law enforcement area. They have had a role to come in aid of the civil power in situations where the police might apprehend that they would be overcome by force of arms or force majeure. The Army have always had a role in that regard. It is not something new to see the Army on the streets in support of the police. This has been a frequent occurrence since the beginning of the State. However, their role has been a passive role. It was felt necessary in the situation and great problem facing us, with the extremely difficult terrain along the Border to be dealt with—and this essentially will be a problem of security; this will be a matter which will affect Border areas. We have a land frontier of many hundreds and hundreds of miles with literally hundreds of crossing-points on it, and the terrain is very remote and very difficult to police and patrol. It is terrain that lends itself to subversive activities. The campaign that is being carried on there is, in many respects, a para-military one of a violent gangster type and one which an unarmed police force is, I suppose, from the beginning at a disadvantage, speaking of it in those terms. But of course, they have the supreme advantage, the moral advantage, of not being armed.
Nevertheless there are situations there, because of the nature of the problem, in which in past instances, the subversives have not been apprehended or the amount of security has not been what it should have been because of the nature of the terrain and the impossibility of manning it completely, even with the combined Army/Garda forces, certainly with the number of Garda that could be sent to the Border. It is important that the State's presence there would be as effective as possible. One way in which it can be effective is to give these restrictive extra powers to the Army so that they can be more effective. But they are being given to them—and this is the second important point I want to make—in a very limited way, limited, in that they are subordinate to the police. The police are the people who will determine when they are to come in; the supremacy of the police is preserved. These powers are limited in the legal range in which they can be exercised. They can be exercised only with regard to the offences set out in section 8. Broadly these are terrorist-type offences. Not all of them would be committed by subversives but who is to know in advance the type of person committing a crime? When we cannot decide that in advance we cannot make any distinction between them. Anyway, we do not make a distinction, a crime is a crime and the purity of the motivation does not make it any less heinous, or any less morally reprehensible. It may make it less heinous in the eyes of the person committing it but in so far as society is concerned it is as morally reprehensible, no matter what the motive.
Therefore, these restricted Army powers are subject to overall police control and are limited in their scope. It is a modest proposal, carefully constructed, and can do nothing but good in the fight against terrorism, particularly in the Border area. This is not a gimmick—this is an unworthy argument and it was not advanced seriously in the other House; it was advanced as a debating point at the very end—to save Garda overtime. This is not something which is a measure of economy. Even if we were to treble the number of our police, it would be daft on the part of the Government to see a uniformed, disciplined force of over 14,000 people having to adopt a passive role at all times and on all occasions. There are occasions when they should be able to play a positive role. This is what we want to provide for in this measure, to give the Garda power to involve them in a positive way when the Garda, who have the overall responsibility, decide that they need them. We give the power to act in the positive, restricted way set out in the Bill, which will be in the general area of anti-terrorist operations along the Border.
It is a modest and, I think, a sensible proposal. I do not like breaching the principle of giving police powers to the Army but sometimes we have to do things we would prefer to avoid doing when circumstances dictate. It is a completely false analogy to compare the situation here with the situation in Northern Ireland. The British Army in Northern Ireland have total police powers and are completely independent of the police. They exercise these powers when, where and how often they like without reference whatever to the RUC. There is a clear distinction between the two situations.
Again, I would like to deal with the suggestion that giving these powers might alienate the Army from the people on the grounds that the British Army are totally alienated from the people in Northern Ireland. That is a completely false analogy. Our Army are our kith and kin whereas the other Army are foreigners in a strnage country. The two political contexts in which the armies are operating are absolutely and completely different.
While I regret having to make the proposal because of the circumstances that forces us to it, I am happy to see the proposal go through because the primacy of the Garda is preserved, the subordinate role of the Army is preserved and the powers given are limited. I am happy that they are not going to cause any alienation between the Army and the people, that they are not going to cause any difficulties for the Army. Essentially, as far as the man in the street is concerned, he will see no real difference. He is used to seeing soldiers on patrol with the Garda. That has been the position in Border areas for the last number of years and it will continue to be the position after the passing of this measure. There will be occasions of emergency when the Garda will requisition the Army under this section and on those occasions the Army will have certain powers of search and arrest. I anticipate that these occasions will be rare, that they will be the exceptional cases and that this new procedure will not become the norm. So as far as the people in the street are concerned, to all intents and purposes, the position will be the same, but as far as the terrorist is concerned there will be the significant difference that he can now fear the Army as much as the police.
I think we are all conscious of the problems which the Minister faces with regard to security. I fully agree that from the practical point of view this section would be of considerable assistance and that, to say the least of it, it would be very convenient for the Garda to call in the Army in the way envisaged by this section. There is no doubt that from the point of view of convenience there is a lot to be said for it.
I think the Minister plays down the change that is being made by this section. He underestimates what we are doing. This is a fundamental extension of the power of the Army. Although one may, when analysing it carefully, come to the conclusion that it is not moving too far in the direction that one would oppose, one is always afraid that a thing like this is the thin edge of the wedge, that when some further amendment is introduced the Minister will be able to say: "Well, after all, both Houses agreed to the provision of section 15 of this Bill" and, at some future date, would be able to use that as a precedent for going even further.
Whatever we may think of the practical effects and the convenience of this section, it is a rather fundamental extension of the power of the Army and one that is bound to give rise to serious misgivings. We live in one of the very few countries which is democratic. Every day of the week we find another country being taken over by military dictatorships, we find the army in complete control and behaving in a way which is utterly repugnant to our ideas of democracy, justice and civil liberties. Perhaps we are unduly sensitive when we see any proposal of this kind. We are unduly sensitive when we see the Army being given a role which is really a police role and which we think is not the role which we would like the Army to take over.
Even if we are convinced that from a practical point of view what is proposed is a good idea, we are naturally very worried about the fact that it is, or may be, the thin edge of the wedge, that it may be used as a precedent for going even further next time, because it inevitably causes the Defence Forces here to move one step nearer to the military dictatorships that exist in other countries and that we deplore. It may be a very small step. I am quite sure that the Army are not going to abuse the power they are given or asked to undertake here. However, we are very proud of the good name of the Defence Forces here, very proud of how they have carried out their duties in the past and we are naturally worried about anything that could tarnish that image in any way.
The section has been improved or is at least made somewhat more acceptable by reason of subsection (8) and the fact that the powers are confined to the regular Army, the permanent defence force. Nevertheless, it is something which we must approach with very considerable misgiving. One of its aspects is the fact that there is no period of limitation in regard to the request. It seems to me that it just says, "during a period specified in the request". It would have been very helpful to emphasise that this was only to be done in special cases in a situation where the Garda were really in serious difficulties in regard to manpower and if each request would only last for a period of seven days or so. The request may be made by a superintendent to the local Army officer to give this assistance for an indefinite period, maybe for six months or a year. He may not see any reason why he should bother to do this regularly so that in a situation, perhaps near the Border, he just puts six months on it. It would have been very helpful if a maximum period had been stipulated in the Bill, if it had been emphasised that this was only to deal with special occasions and that it was not to extend for more than seven days or something of that kind.
I am also concerned with the way this section is worded. If the section is passed by the Seanad I intend to put down an amendment on Report Stage dealing with the way in which the request should be made because the Defence Forces do not act in the same way as the Garda Síochána. They do not normally act as individuals, they act as units. If a request is made I think it should be a request for a unit and the matter should be handled by the Defence Forces as a unit. That is the way they are used to and that is the way they would like to be asked to deal with this request. When I say a unit I am not talking about a huge unit but rather a very small unit. Nevertheless the Defence Forces work as a unit and not as individuals. However, that is more a matter of mechanics than of the fundamental issue involved here.
I am opposed to this section but opposed on the basis that I acknowledge there is a problem. I acknowledge that the Garda have serious manpower problems from time to time. I agree that this measure would be very convenient because of the fact that it represents a fundamental extension of the law in regard to the Defence Forces, because it moves them one step in the direction, however small, of a military force which is gradually taking over the powers of the police. Because of that the situation has not yet been reached where it is necessary to take this step having regard to the ramifications of doing what is set out in this section. Accordingly, having weighed the pros and cons and having weighed both the convenience and the ramifications of the Army moving into this area, my view is that a case has not been made for it at this stage and I hope a case can never be successfully made for it.
I do not intend to deal one by one with the points made by Senator Ryan. I am sure the Minister will do so adequately. But I intervene to make the comment about something which was said here, to a degree this morning but to a large extent last night. The impression was given by some Senators that there was widespread disquiet in the Army because of the provisions of this Bill. One Senator gave the impression that his door was almost knocked down by people calling to make representations to him on behalf of the Army in this regard.
As the House knows, I am an ex-member of the Defence Forces. I still have contact with a large number of my former colleagues. I want to repudiate utterly so far as my knowledge goes the suggestion that this extension to the powers of the Army has caused any disquiet. On the contrary, only this week I had the opportunity during a social function of being present in an Army barracks in the company of many of my former colleagues and, far from hearing any disquiet expressed about the powers which they are now given, I heard them being welcomed on all sides.
Listening to some of the speakers one would think that the use of troops in aid of the civil power was an innovation of 1976. Senator Eoin Ryan is as well aware as I am that it was as far back as 36 years ago, when he and I had the honour as serving together in the same unit, that troops at that time were being employed in aid of the civil power and have been so employed on many occasions since. The provisions of this Bill seem to me to be a logical extension of the duties which the Army have carried out up to now. I was disappointed to hear Senator Ryan using phrases such as "the thin edge of the wedge" and expressing some doubt as to what could happen in later years. Senator Ryan knows that the Army have always been utterly loyal to the Government of the day, irrespective of what Government are in power, and I do not think he need have any fear——
I never suggested otherwise.
I may have misunderstood the Senator but said I was disappointed to hear him expressing doubt that this might be the thin edge of the wedge and talking of the possible implications of the legislation in later years. I saw there was no point in following him down that road.
The Army, since the inception of the State, have always been utterly loyal to whichever Government were in power and I have no doubt that the Army will continue to demonstrate that loyalty to whichever Government or whichever Minister happens to be in control of them.
On a point of explanation I should just like to say that what I suggested was not that the Army would seek further powers but that a future Government would thrust further powers on them.
I consider myself to be very much in Senator Ryan's position because this is a fundamental extension of Army power and it must be seen in that light. I am happier about the section because of the amendments which were made and the fact that subsection (8) has been added so that this section only applies as long as the Emergency Powers Act, 1976, is in force. I was not in favour of that emergency power legislation being brought in. I voted against the motion when it was before the House, but one must accept now that that is the situation and we must operate inside that limitation.
There are a number of fundamental points to be made. One of them arises from Senator Sanfey saying that this provision which we are discussing is not causing any disquiet among Army ranks. He made the point also that he believed that the Army would remain loyal to the administration of the day. I certainly second that. I believe that they certainly will. In one sense or another there was no necessity for Senator Sanfey to make that second remark because we all accept this and it is the fact that this is accepted as a sine qua non that is such a remarkable thing about this State. It must be the only one of Britain's ex-colonies, or practically any ex-colony, that has achieved its independence in this century which has not had major intervention by an army in its politics. This is a credit not only to the Army and to the calibre of the people who make up the force but also to the politicians who made the original choices, to the people who established the State in the first and second overnments. This is a very intereesting historical point that should be looked at more carefully and should be understood more fully as to why the Army in this State has always remained above and outside politics. But it is one of the great tributes and one of the things of which we can always be proud, and as legislators we want to maintain this situation. We want to keep the Army as far from politics as they have been always.
This is why we should be very chary as legislators in giving the Army any powers which bring them even a millimetre closer to the political arena. The point that Senator Sanfey made— that there is not any disquiet in the Army about this legislation—is not really a fundamental point. I know he was rebutting an argument that had already been put up. There are, conceivably, powers which the Army would like that it would be very bad to give them. Certainly there is not an analogy with other ex-colonial powers, as I have said. If one looks at the record of ex-colonial powers, there is this constant theme of armies wishing to become more involved in politics and to take up extra powers. In those cases, what the Army want is not what is good for the State. The question is a much broader one and, as I said, we should be very careful before we extend Army powers in this way by one iota.
As people have already remarked, we are debating this section when the Dáil has adjourned and it is unlikely that the Minister will accept amendments at this late stage or on the Report Stage of the Bill because this would mean recalling the other House. Therefore one might think it was not a useful exercise to continue this debate but I disagree with that. It is a particularly useful exercise because the feelings of people on both sides of the Houses— this has been a constructive and sensible debate—have made it absolutely clear to the Minister and to the Government that there are two aspects of this package of legislation. There is the legislation itself, and then there is the way in which the legislation is used. Any legislation of this type, because it is emergency legislation, is open to abuse no matter what anybody says.
The point I wish to make is that this debate has made it absolutely clear that, if there was widespread abuse or serious abuse of this legislation by any political agency, or any part of the Defence Forces, this would become such a major issue that it would bring the Government down. I am not referring necessarily to the Government in power. This could happen at any time. That is the real value of this debate. It has made it absolutely clear that these measures must be applied in the narrow way in which the Minister has insisted they will be applied, and that the safeguards which the Minister has said are there will be used, and will be seen to be used, when people are brought into custody, or when people come under the application of any of these Acts. This debate is a very useful one and it has copper-fastened this point. That is why it is useful to emphasise this.
I made this point to the Minister for Lands when he was sitting here for the debate on the previous Bill and he agreed and said of course this is the democratic check. I should like to emphasise it again because it is such an important point. If this legislation were abused, then it would quickly become an issue, a political issue, which would bring the Government down. That must be remembered when this legislation has been passed and when it has come into operation. The value of this debate is underlined by this very important stressing of the inherent democratic situation which exists in this State.
It seems to me that there are two debates going on. The first debate is a fairly obvious one about the particular nature of the powers and roles now being given to the Army in this set of circumstances and the advisability of this. In connection with this, I accept the Minister's outlining of the way in which the situation as it is proposed in this section differs from the situation as it exists in Northern Ireland. But I cannot help feeling some disquiet and some disturbance about the fact that we should have to be doing this at all.
I must also report that I have had a number of representations from constituents of mine, university graduates from this part of the State who are now living in Northern Ireland who are as anxious as the Minister is, and as I am, that the IRA should be disposed of by any reasonable legitimate means that are open to this society, about the effect of precisely this kind of legislation. Because they have lived with it in Northern Ireland, they are very worried about the effect of giving police powers to people who are not trained for this work.
I accept the Minister's argument that full police powers are not being given to the Army down here but, nevertheless, we are giving them some police powers. They have not been trained for police work. They may have rigorous training in other areas, but police training is very specialised. It is something which evolves over a considerable period of time to meet the sort of circumstances in which a modern police force finds itself. It can at the very least be a substantial risk to suddenly try and mix oil and water in this regard, to try and fuse two security forces which have rather different objectives, rather different patterns of recruitment even, and rather different ways of going about their business.
This leads me to the second debate which lies behind this and which I do not think has been fleshed out to any degree so far that I have heard by any Senator. When we are talking about giving police powers to the Army, we should really in 1976 be asking ourselves for a more precise definition of the role of the Army in relation to a State like this. The Minister and other members of the Government have given some indication of the enormous growth in the Army since this Government came into office. Of course, in one sense it is something to be proud of. In another sense it is a mark of the shame that hangs over us for as long as this threat is facing us. The growth in the Army, and to a certain extent in the police force but I am concerned more with the Army here, has not been accompanied by any serious rethinking of the role of the Army. Like Topsy it has just "growed".
If we examine the growth in the Army we will find that, as well as its obvious relation to the security relation, it also has many other aspects. For example, the Army take in many young people who might otherwise be unemployed. They take in many young people who have been rejected by the unfair and discriminatory operation of our educational system. In many ways, the Army act as a safety net for people who have fallen through the many gaps in our educational system. They take them in, give them a wage and teach them a decent trade. Whether all this should be done by the Army is open to some degree of question. I would prefer, as I am sure the Minister would prefer, to see all these young people in decent industrial jobs than hefting rifles around the countryside. Of course there is the overall question of cost.
In the debate on this section in the other House Deputy Barry Desmond pointed out that we are now probably spending about £35 million extra on security, including the Army and the Garda. It takes no large effort of the imagination to work out what we could do with that £35 million if we had it to spend on other things. We must really look at the question of spending so much money on security to see whether we should be rationalising our entire security operation, whether this temporary conjuncture of a largely unarmed police force and an armed military force should be taken as the opportunity to really sit down and look at things from the beginning.
What is an army for in the Ireland of today? Armies are traditionally for one of two things: they are for attacking people or for defending people. The capacity of our present Army to defend this State in the event of the sort of nuclear confrontation that is always just one step beyond the horizon must always be open to question, and that is not casting any reflection on the efficiency of the armed forces. It is just that we are not in that league. It is just as well, as Senator West remarks, but if that is the case, why then this immense capital and particularly current investment in an armed force which will be of no effective use in an absolutely total war situation?
The Senator is straying very wide from what is in section 15.
I will endeavour to confine my remarks to the section, Leas-Chathaoirleach. When we are talking in terms of bringing the Army to the aid of a civil power I think we are talking more in terms of the other role of the Army, the role of defence. I think we can see that all the security forces here at the moment are probably fairly well stretched, for all that we are spending an extra £35 million on them every year, to cope with the security situation that exists at the moment. The only other possible security situation that I can see arising is one which would arise from a precipitate withdrawal by the British Army from Northern Ireland. Again, I shudder to think of the security implications of that and I shudder to think of the economic implications of that security situation.
It seems to me that we are not taking advantage of this opportunity of calling the Army to the aid of the civil power. We are not taking advantage of the opportunity that this section gives us to have a really fundamental look at the role of the Army in our modern State. Is it too big? Is it too small? I suspect that it is too large and that we should seriously use this section as the take-off—and I hope the Government will do so—for an overall review of security, to see whether outmoded, almost 19th-century concepts of army, police and so on have really served their purpose and should not be looked at again in the context of a modern State which is already spending £35 million a year more on security than it would wish.
I do not intend to detain the House very long. It does appear to me that there is a considerable amount of misunderstanding, if misunderstanding it may be called, in the minds of those who express certain doubts as to the wisdom of calling our Army to the aid of the civil power—or the manner in which they may be called to give such aid—in the emergency and in the circumstances in which we find ourselves today. Senator West has said that our Army is unique among armies in as much as it has been without affiliation to political parties. Therefore, we would all be inclined to come to the conclusion that it is an Army which should be trusted with the authority of this State, to exercise that authority on behalf of the civil power, with the approval of the civil power and in circumstances where the sovereignty of the people and of the Government is challenged. It is hardly an honest expression to suggest by implication that at this time and in these circumstances the Army should stand idly by while the civil authority, the Garda Síochána, would be pressed and, in certain circumstances, bullied by gunmen and those who seek to deny the right of the people and who challenge and have challenged and have taken the lives of members of the civil authority.
These are the circumstances in which we are examining this matter. These are the circumstances in which somebody has seen fit to say that that Army, which we all agree has set standards of which the nation may be proud, should not be trusted. I see no reason why the structure of the security system here should not continue to stand on the principle that where the civil authority is encroached on and challenged then the armed section of the State authority should be called in.
The Army are entitled to be called in. I submit that it is a reflection on the integrity, patriotism and national outlook of the Army to suggest that any member could not be trusted to do his duty. During a previous emergency, and earlier on in more difficult times, the Army did what had to be done to sustain the authority of this country. That is what the Army is for. It is in our interest to recognise that this section is vital to the interests of the people as a whole and that we should give our approval to it in this House.
I will be brief. I want to say first of all that I agree somewhat with what Senator Horgan was saying. The establishment and institution of the Irish Army and of the Garda Síochána and their independent role, or roles, have been one of the basic reasons why we have a healthy democratic State here today. I have total admiration for both institutions and for their personnel and I hope we continue to regard them very seriously as the basic pillars of the democratic society which we have. Candidly, I feel we need our Army at its present strength and we need it well equipped as it is. In regard to the Garda Síochána I feel that we need more personnel on the ground. I yield to nobody in respect of my regard for the two institutions and their basic contribution to our community.
Part of the strength of the development of the two institutions has been their independence. At the same time the Army has rightly come to the aid of the civil power in certain situations. Their independence is very important and it is fundamental in a democracy to have the Army and police force as separate institutions attached to separate Ministers in separate departments while having a basic overall responsibility for security. In that co-ordinated manner the Army and Garda Síochána have operated in our society since the foundation of the State. That co-ordinated yet independent authority existing in respect of each institution has been a major contribution towards the strength of our democratic society.
For that reason it is only in the most extreme emergency situations that Defence Forces should be brought into the basic police area as has been done here under section 15. All the basic police powers here are given to any member of the Defence Forces on request from the Garda superintendent. All the powers of arrest, search and detention are spelled out in section 15 (3) with the limitation in regard to detention of six hours in subsection (5). A large measure of the disquiet which I would ordinarily have in regard to this intrusion of the police area by the Defence Forces has been removed by the response of the Minister in the Dáil to an amendment put down by Fianna Fáil now incorporated in subsection (8) in which the very unusual extension of the Army into the police power area is limited to the period of time during which the Emergency Powers Act is in force. In other words, the same 12 months limitation which we discussed on the Emergency Powers Act—the order placed before the House with the possibility of an annulling resolution— is written into the section in regard to the Defence Forces operating in this area. That was very wise.
The Emergency Powers Act continues in force as an Act until such time as a resolution is passed by each House of the Oireachtas annulling the emergency. Within the Act the powers have an annual life and are reviewed annually by Government order which can be annulled by either House passing a resolution within 21 days. That can be done but the Act will remain in force until the emergency resolutions are annulled.
This can continue even though the Act has no powers but is still in force.
Or in abeyance, yes.
I appreciate the thinking behind the amendment in the other House accepted by the Minister in relation to the time for which this will operate. I do not have great confidence as to where this legislation is going to leave us. We have already been told ad nauseam about the duration of the state of emergency which was first declared at the outbreak of war. Even in the United Kingdom emergency legislation, which was designed to last only for the duration of wartime, lasted 17 years.
Part of the difference between the police force and the Army is that the police force is usually unarmed and the Army is usually armed. We would be very grateful for a statement as clear as possible from the Minister as to the conditions under which members of both forces are permitted to use firearms in the course of their activity. There is a very substantial qualitative difference between a security force which uses firearms and one which does not. The police force has benefited hugely from the initial decision which was made in the early days of the State, at a time when people might be excused for taking the other decision, to make it an almost wholly unarmed force. This has redounded to its credit. It has improved and maintained the morale of that force.
We now have a situation in which one of the threats being faced by the security forces generally is not just occasional robbery with violence but a gang of people whose whole philosophy involves the bearing of arms and so on. This is obviously one of the main reasons behind this projected amendment of the law contained in this section. There is this qualitative difference between security operations involving the bearing of firearms and quite possibly killing people and a security operation which does not. I would like the Minister to give some indication of the guidelines under which the use of firearms is permitted in both forces.
A number of points have been made during the debate which I will deal with as briefly as possible. Senator E. Ryan felt that there should be some time limitation on the currency of a request made to the Army for assistance under section 15. This was considered and it was felt that it would not be possible to put in a time limit and say: "This is the proper and optimum time limit in respect of which this power should stay alive." What was done instead was to indicate in the section that the request lasted only for the period specified in the request. We did not draft the section that, "may make a request". We said that they may make a request for services "during a period specified in the request". There will be an onus on each superintendent or higher officer who makes the request to specify a time limit in it. We will have to depend on the reasonable application by both forces of this section and that the powers sought will be sought for only a reasonable period. If it comes to my notice and the notice of Senators that the powers are being sought for unreasonable periods, I will be glad to hear of this and the matter can be reviewed here.
It would not be possible to specify a time limit. An indication of the difficulty is that in the Lower House an amendment suggesting that the limit be 24 hours was moved. In the course of the debate the Deputies opposite indicated they would not object to 48 hours or maybe even 72 hours. Senator Ryan said seven days would be a reasonable period. It might be too long and in some cases it might be too short. This is why it is essentially an operational matter determined by the situation on the ground. We will have to leave it there.
On the question of to whom the request is addressed, the section is drafted that the request be made to an officer of the Defence Forces. Senator Ryan felt that this should be more formalised, that it should be to a specific unit and that a specific unit would come out in answer to the call.
The feeling was expressed in the other House that an officer of fairly senior rank should be the person to receive the request. Again we have to take account of the operational difficulties that might be present when a request is made. The request might have to be made in a hurry to the nearest available officer who might be a subaltern or a middle rank officer. It was for that reason that the section is worded as it stands.
It is anticipated that normally if the power has to be exercised in a situation that is not a sudden crisis situation, it will be done in close consultation between the plans and operations section of the Army and the higher echelons of the Garda and will be done in a formal way. We have to take account of the exigencies of the situation which might make it necessary to make a sudden request. That would then have to be capable of being directed to the nearest officer on the ground who would respond with the appropriate number of men.
I disagree that this could be seen as being the thin end of any wedge. Before any wedge can be inserted to widen whatever is needed to be widened, this Parliament has to be consulted. I consider it a limited power and I regret that it would be interpreted as being the thin end of the wedge. Certainly the Government have no intention of widening anything any further. Nor do I take the point that it is a step towards military dictatorship. Every democracy has to have an eye out for the danger of it. As Senator Ryan pointed out, so many countries have succumbed to this sort of thing. Everyone knows from the traditions of our Army, the traditional structures of our democracy, how remote that is. I do not think this is even a tiny step. This is not giving independent power to the Army. Powers given to the Army can only be exercised at the behest of the Garda. The Garda still have the controlling influence. In that connection I would disagree with Senator Lenihan when he talked about the intrusion of the Army into a police area. That is not so. It is vice versa. It will be an invitation by the Garda to the Army to come to their assistance and exercise the powers given to them here. It is important that we should bear that in mind. If we do, many of the apprehensions which have been expressed can be seen to be unfounded and can be put at rest.
Senator West said we should be very careful in extending our new powers by one iota. I agree entirely. I submit to him that we are being extremely careful in the very conservative, limited way in which the powers are being conferred. They can only be conferred by the police. The primacy of the police is preserved and the subordinate role of the Army in this area is also preserved. This is something the Army are very sensitive about and anxious to retain. The Army have no ambitions whatever to have a primary function in a law enforcement agency. They fully recognise and are sensitive that their role is subordinate to that of the police, that their role is to come to the aid of the civil power. That is the way they want it and it is the way this section is drafted.
Senator Horgan said it was dangerous to fuse two different forces. There is no question of fusing the two forces. Nothing like that is contemplated. Nothing like that can happen under the section. The request is made by the Garda for the Army to come to their assistance and be in a position to exercise the powers. The Garda will be in charge on the ground. That always has been the position and will continue to be the position. The forces will continue to operate separately but jointly on occasions. There is no question of exchange of personnel or exchanging roles. The Army will have a supplementary role of the limited type I mentioned. A debate on the role of the Army is not strictly relevant to this section and I do not propose to go into it now.
Senator Horgan asked for a clear and explicit statement on the right to fire. I would prefer if at some stage my colleague, the Minister for Defence, would deal with that in relation to the Army. They have stringent and detailed conditions.
He has the right to fire.
He has the Army morale raised to a degree that never happened before. There are stringent and careful conditions in which the Army may fire. Similarly with regard to the Garda Síochána. A policeman carrying a gun is in a very difficult position, because he may fire to protect his own life or the life of a comrade. On the other hand, he is subject to the ordinary constraints of a citizen. This puts the policeman carrying a gun in a difficult position. He could subsequently, in a post factum situation, be found to have used his gun improperly or outside what the court would consider to have been a normal and proper way. The very fact that there can be a post factum criticism of something is a restraint there.
The powers in this section are limited. The primacy of the police is preserved. The subordinate role of the Army is preserved. We do not have anything to fear and, as Senator Lenihan pointed out, the powers have only a limited life; they are not part of the permanent legal code.
I would like to change the emphasis of something that Senator Kilbride said I had said. He only got half of the statement. The other half was complementary and equally important. I said it was a great tribute to our Army that they have remained loyal to the different Administrations and have remained out of politics. I also said it was equally a tribute to the politicians who set up the structures so that this would be possible. I want that to remain.
I want to be able to pay similar tribute to the Army, but I want to feel that we are doing our job as politicians in ensuring that this situation will remain. It is therefore important that the two sides of this be seen as complementary. I would like to ask the Minister something about the mechanics of this section, particularly the request by an officer of the Garda Síochána, under subsection (2), which would then bring the Army, under sections 3 and 4, into play. I am not clear about the scope of this. I would like to ask the Minister, for example, if a Garda superintendent in Dundalk wished to alert the Army right along the Border for an unspecified period of time, would this be permissible under this section? Could an officer of the Garda Síochána in one part of the country alert the Garda in a much wider area than the area under his own jurisdiction?
He could not. A chief superintendent could only act within his own division. If it went beyond that it would be done at Commissioner level.
Is this part of the legislation? Does the legislation prevent this?
If a superintendent in Kerry decided to activate the Army in another man's district, say, in Donegal —it just would not happen.
I could envisage a situation in which a senior officer in Dundalk might want to alert the Army along the whole Border—the Minister must envisage that situations like this might happen—and this is possible by means of this section? What would be the rank of the officer involved?
If the Army had to be requested on a scale larger than a Garda district or a Garda division, the request would have to come at Commissioner level and come to a very high level in the Army. Normally, a superintendent would exercise jurisdiction within his district, a chief superintendent within his division and over that it would be a matter for Commissioner level. It would not be possible for a superintendent in Dundalk to request an Army presence in the entire Border area. If he felt there was a need for that he would have to consult higher authority which would be done at Commissioner level.
May I ask the Minister about the situations which must have occurred up to now in which members of the Army, acting in Border areas, have been threatened by people they suspected of subversive activity who were acting within our territory, in cases in which the Army are not accompanied by gardaí on patrol? Technically speaking, the Army could not arrest or search such people unless they actively engage the Army in a shoot-out. Is that the situation? The Army must have been threatened in situations like this. Obviously, they have been shot at from across the Border by people who were in Northern Ireland but they must also have been shot at by people in our territory. If shooting does not occur, what is the Army's position?
The Army have effected arrests along the Border when they have come on people carrying arms. Clearly a felony was then being committed and they had the ordinary citizen's power of arrest. The type of situation where they have been powerless is that in which they have met people, obviously subversives who were after dumping their weapons, and prima facie innocent people walking along the streets, whereas their very presence and everything about them indicated that they were subversives. In that situation up to now the Army have been powerless. There have been situations where, literally, noses have been thumbed. That is not good enough.
Suppose a Garda superintendent has not requested that they act, they still cannot act in that situation?
There would still have to be a request operative to enable them to deal with that sort of situation. If they are summoned to a particular area where shooting has been reported— and this is the sort of situation that arises—and the area is cordoned off, the request at that stage will certainly be one pursuant to the section.
Just one more point, because it is important to see how the section will work in practice: I would fear that a blanket request could be made which would cover the whole Border area so that any Army patrol might operate under subsections (3) and (4) of this section and arrest people in the situations which the Minister has described. There would be a question of the period of time over which it would lapse. My fear would be that the Commissioner could make such a request and that the Army would not be restricted and would have a free rein.
In theory that could happen. What will happen in practice will be in effect a continuation of the existing situation that when the Garda want the Army to come out with them, they will make a request to the Army barracks that they want the Army for a particular operation. That continues to be the position. If the request is now made under this section it will give the Army the extra power.
Up to now there has not been, and I do not envisage that there will be, a blanket request to the Army to come in aid of the civil power because they would have to do so for specific reasons known to the police at the time. The position will continue to be the same.
I hope I am right in assuming that hopefully there will be in two cases, one of them under the control of the Army and one of them under the control of the Garda, a record of all requests made under this section and acted on. Members of the Oireachtas, at the expiry of the 12-month period, if there is another debate on this legislation, may be anxious to know what sort of orders have been made, how many of them there were, for what period and so on. If the Minister could give the House an assurance that this kind of information will be available, if asked for, it will clarify much of the debate which has been going on between him and Senator West.
I do not think that difficulty will arise.
If I know anything about the Army and the Garda they keep ample records.
I am glad of the Minister's assurance in that respect. There is still a certain amount of ambiguity about the section which I should like to have cleared up. If a member or unit of the Defence Forces comes to the assistance of the Garda, under the section whose command will they be under? Are they under the command of a senior officer or are they under the command of the Garda authorities?
Soldiers remain under the command of their officers, whether commissioned or non-commissioned. The operation generally will be under the direction of the Garda present, whose line of communication to the soldiers would be via their superior officer.
This leads directly to my next point which is related to the point I mentioned about the use of firearms. For example, in subsection (3) (b) we are told that:
A member of the Defence Forces may use reasonable force in order to comply with a requirement to stop a vehicle, and such force may include the placing of a barrier or other device in the path of vehicles.
Does such reasonable force include the use of firearms if an attempt is made to break through the barrier? We had examples in Northern Ireland where the police or the armed forces used firearms on unarmed suspects who were apparently, or were said to be, attempting to escape from custody. What sort of force will our Defence Forces be allowed to use in such a situation? Have they got yellow cards equivalent to those used by the British Army in Northern Ireland? It seems that the particular powers which are delineated in this section and subsection would not in any circumstances involve the use of firearms. Or is that correct? We do not know whether it would be within the competence of the Defence Forces themselves to decide whether when they are exercising these powers they may fire on people or not.
The amount of force that can be used must be reasonable force and that cannot be defined in the absence of the situation in which it is used. This puts an obligation and burden on both Army and Garda to ensure that what force is used is reasonable. The judgment of what is reasonable will have to be made subsequently in another forum removed from the heat and excitement of the moment. It may be that subsequent judgment may find that the force used was unreasonable. It is a matter for the discretion of the parties on the spot at the time. If the use of firearms could be regarded as reasonable at that particular time, then the use of firearms would be permitted; but there would be the further restraint on the use of firearms by the Army in that the conditions in which firearms may be used are stringently laid down. I do not think our soldiers carry cards. They are instructed at regular intervals on their rights to use their arms and fireball ammunition. Broadly speaking, they are entitled to use firearms to defend their own lives, the lives of comrades and to defend State property from attack or damage. There have been a couple of instances in this jurisdiction where firearms were used. In one case the Army were fully vindicated after a trial in court. In the other case the matter is still sub judice.