Seanad Éireann debate -
Tuesday, 19 Feb 1985

Vol. 107 No. 4

Offences against the State (Amendment) Bill, 1985: Committee and Final Stages.

Section 1 agreed to.

SECTION 2

Question proposed: "That section 2 stand part of the Bill."

Mr. O'Leary

On section 2, I am concerned about subsection (2) where it enables the Minister to make application to the High Court by way of ex parte application. Subsection (2) (a) says:

If proceedings are not brought under section 3 of this Act or otherwise,...

Section 3 of the Act is quite clear. It deals with the normal application that could be made by a person who claims to be the owner and I have no difficulty or problem with that. I would like to ask the Minister what "or otherwise" means. I expect "or otherwise" means in that regard that no law can prevent somebody going to the High Court and asking for his money back, not looking for it back under section 3, but saying. "I want it back: it is my money", in other words the equivalent of a common law application. Is that what "or otherwise" means"? If it is what it means is the Minister happy that after three months and when the power to make the order referred to in subsection (1) no longer exists, if there had been an application to the court, not under section 3 but just an application to the court asking for the money back by way of plenary summons, the person cannot in fact get the money back? When the three months have expired but before six months have elapsed there is a three-month limbo period involved, and is the Minister happy that the money in the High Court cannot be got out by way of an application — which seems to be envisaged — under subsection (2) by the use of the words "or otherwise"?

Minister for Justice (Mr. Noonan,

Limerick East): First, what the Senator has indicated would be one explanation of “or otherwise”. It will also be open to him to bring other proceedings, for example an action for a breach of contact, against the bank or a declaration that the Act is unconstitutional. There would be a variety of possibilities here.

On the question of the limbo period, the short life, the three months life, does not apply to the Bill as a whole; it applies to section 2. The remainder of the Bill will stand. Section 2, where the Minister will produce a document for the bank and the bank has to comply, is the part that cannot be operated after the three months; the other procedures in the Act will apply and there will not be a limbo period.

Mr. O'Leary

Take the case of a bank which receives one of these documents. It receives the document telling it to pay over the one million pounds that it has into the High Court because the Minister believes that it is money of this type. It is paid over to the High Court; the High Court receives it, presumably using as the authorisation for its lodging the document signed by the Minister. In otherwords one just does not go up to the High Court and say, "here is one million pounds". They will say, "why are you giving us the one million pounds?" They will be told, "we are giving you the one million pounds because here is the authorisation signed by the Minister". Three months pass and the authorisation signed by the Minister may no longer have effect. Some person then initiates proceedings to say, "please give me my money back". The High Court has one million pounds on deposit on foot of an order made under a section of the Bill which is no longer in operation. If the Minister is happy about it, I am happy about it. I am, however, a little concerned about it. Should the Minister specifically include in the Bill a statement to the effect that the lodgments made in respect of any order made under paragraph (a) would continue to have an effect throughout the period of the lodgment with the High Court? Has the Minister considered that?

Mr. Noonan

(Limerick East): The three months clause applies to section 2 (a) of the Bill. That is the procedure whereby a Minister may require a bank to pay money into court. Once the money is in the court the procedure for a litigant to get the money out remains extant and will not be affected by the three-month clause. All the three-month clause would bring about would be that the Minister would not be empowered to make new orders about other moneys that might come to his notice unless the Government reactivated section 2 (a).

Mr. O'Leary

I am worried about the situation where, after the expiry of the three-month period the High Court now has money in its custody. I want to give it a statutory basis for having that money. I would suggest to the Minister that it would be very convenient if there was a statutory basis. If the High Court, four months after it gets the money, says, "why do we have this money?" then it can look at a particular section of the Bill and say, "even though paragraph (a) is no longer in operation, there is a specific duty on us to keep that money until such time as it is adjudicated under section 3 or the Minister makes application under section 2(2)".

Professor Dooge

I have listened carefully to Senator O'Leary as to his repetition of this point. It seems that he is raising a difficulty that is not in the Bill. It seems to me that paragraph 2(a) on page 2 is only concerned with what the bank does. It tells the bank to comply by handing over money held at the time the document is produced; it is not concerned with money that comes to the bank after the date of the order and it is concerned only with the handing over of the money by the bank to the High Court. There is nothing, it seems to me, in subsection 2(a) that determines what is to happen to the money other than that it is to be handed over.

Mr. Noonan

(Limerick East): Section 3 applies to the procedures whereby a litigant may claim money which is paid in. All of section 3 is preserved, and once the money is paid in under order of section 2 then the rest follows. Once an order has been made during the three-month period to pay the money into the court then it is money which is in the court as a result of an order under section 2; the procedures for claiming ownership apply under section 3.

Mrs. Robinson

I have a somewhat different point to raise, and that is to clarify the duration both of section 2 and of the Bill itself. As the Minister stated the rest of the Bill is permanent legislation. Section 2 has this provision for the lapsing of the power that exists for three months; the Government may from time to time continue it in operation. There is no ultimate time limit on that. Although the Minister has emphasised that it is a provision that gives very real safeguards that after the three months the Minister cannot renew it since it requires a decision of the Government, is there not equally a danger that within every three-month period it will automatically be on the agenda of the Government and that we are in fact enacting a permanent power of this kind? There is no provision to say that this will operate for a period of a year or two years or three years after which the power will lapse and you have got to look for new power. There is not even the requirement to provide that the looking for power to extend for a further period of three months would require the active approval of both Houses of the Oireachtas. There is only the subsequent power under subsection (4) that an order should be laid before each House and can be subject to a resolution annulling it. In practice does not this mean that although it seems to have lots of safeguards it will in effect be renewed every three months because it will appear to a Government to be useful to have it in reserve in case this power is needed. Is it not a less effective genuine curtailment of power than it might appear on the face of it?

Mr. Noonan

(Limerick East): I do not think so. Paragraph (c) (1) says it will remain in operation for three months beginning on its commencement and will then cease to be in operation. The reason for the whole Bill being subject to a time clause is that by writing in a provision that during an initial six-month period somebody can litigate while money is in court or under the charge of the court but we say that for a further six years people can take an action to recover the money. Consequently, the protection that is being given here to bona fide account holders runs over a very long period. One could envisage a situation where somebody would start in the middle of the sixth year an action which could run for quite a while after that. What is being subject to the three-month time clause is the part of the Bill which gives the Minister the extra power. As the Senator says it is subject to Government order and it would be for the Government to decide at the appropriate time whether it would lay an order before the Houses to renew this section of the Bill or not. There have been occasions in the past where Governments did not renew specific powers granted to Members of the Houses of the Oireachtas and they were allowed to lapse. Rather long detention periods were brought in on one occasion and were allowed to lapse fairly quickly.

Mrs. Robinson

I wonder could I come back to the point I raised on Second Stage on subsection (2)? Again it is more in the form of a question — the provision to which Senator O'Leary was referring where the Minister may, after a period of six months apply ex parte to the High Court for an order directing that the moneys be paid to the Minister or into such account at the bank as the Minister may specify. That may, in fact, be common sense and the appropriate thing to do, but it does seem to be a very considerable exercise of power by the Minister and it leaves no discretion to the court in relation to the particular moneys. I am not suggesting that these moneys would necessarily be a useful injection to the funds of suitors or some other fund, but it is analogous to the situation in the Sinn Féin funds case. It is not exactly parallel to it and I do not have the same concern about it, but at the same time the Minister is, in an ex parte application, directing the court to pay the moneys in a particular way or into an account at a particular bank that the Minister may specify.

I appreciate that under section 22 the property is in effect vested in the Minister. I presume that is the effective linkage, but perhaps the Minister would explain why that is framed in that particular way and if he is satisfied that it is an appropriate way of getting the funds out of court if no application has been brought by anybody asserting ownership of them.

Mr. Noonan

(Limerick East): I think the point to be made is whether the court must grant an application of the Minister and if not is this an interference by the Executive with the Judiciary and therefore unconstitutional? My advice is that no, the court must be satisfied that no applications have been brought under section 3, and if they have, that they have been dismissed. It is not, therefore, ousting the discretion of the court. Subject to that, however, the court must, if the Minister asks, grant the application. There are precedents for this. There is the appointment of an administrator under the recent legislation dealing with the PMPA, for example. My advice is that that problem would not arise.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. Lanigan

Could I ask — I may be naive about this — with regard to a person claiming to be an owner of moneys, does that take into account the person from whom the money was taken by the Minister and does it include a person from whom the money might originally have been taken? Is the Minister suggesting here that somebody who claims to be the owner but is not the legitimate owner can go to court and that equally somebody who is the legitimate owner can go to court for the recovery of the money? I would like to have that clarified.

Mr. Noonan

(Limerick East): Yes, and of course it would be very helpful for the Minister if the legitimate owner did go to court.

Mr. E. Ryan

If you look at the end of section 3 it says: "if the court are satisfied that section 22 of the principal Act has not had effect"...It could be that section 22 did have effect in the sense that it is money which is belonging to an organisation that is subject to section 22 of the original Act but it can be shown that that money was, in fact, stolen by the illegal organisation. In effect, section 22 has had effect. The Minister has shown that this is temporarily in the custody of the illegal organisation and to that extent section 22 is in operation. But it can also be shown that this money was originally the property of somebody from whom it was stolen.

Mrs. Robinson

I want to make much the same point. This section raises a question of two kinds of people, (1) the legitimate owner who at some earlier stage was deprived of the money whether through kidnap, threat or some other measure, and (2) a possible person claiming — and presumably that person would be somebody who would be perhaps a member of an unlawful organisation as described by the Minister. I have two different questions relating to section 3. First of all, is the Minister satisfied that it is not necessary to increase specifically the amendment made in section 8 of this Bill, in section 3 and section 22 as amended or extended by section 8 of this Bill? It may be that it is not necessary to refer to it. It is that section that has not had effect in relation to the moneys.

The other thing that concerns me is in sections 19 and 22 of the Offences Against the State Act. What is referred to is an unlawful organisation and the property of that unlawful organisation. It is not clear to what extent, apart from the extension now in section 8 of this Bill, property of an individual is to be assumed to be property of that organisation or where the distinction is to be drawn. For example, if the member of the organisation had a pub or some other revenue-raising entity and had got money in funds but was known to be an active member of the unlawful organisation, would that be covered by the extended definition? We must read this together with section 8, subsection (2):

Moneys held by any person for the use or benefit of, or for use for the purposes of, an unlawful organisation in respect of which a suppression order under section 19 of the Principal Act is in force...

That seems to me to be a considerable extension of the original section 22 where it was clearly the property of the organisation and then a doubt arose as to whether it was the property at the time the suppression order was made or any subsequent property that might come into the hands of the organisation itself. It would be necessary in order to understand the scope of section 3 and to understand the circumstances where the courts might be satisifed that section 22 of the principal Act has not had effect, to be clearer on what the rights of the three sets of people would be, of the legitimate owner, of the person who might be claiming although he might be claiming as somebody who was associated with an unlawful organisation but saying: "That was my money, not the organisation's money", and where the overlap might be.

Mr. Noonan

(Limerick East): Section 22 has brought about a situation where the property of a suppressed organisation is forfeited. There is an extension to it here but the extension is confined to moneys, not to property. “Moneys” in the Act is money in the bank or shares in a building society, because that would be the way one would have money on deposit; one would be a shareholder in a building society. That is the extent to which the scope is being extended in so far as the type of asset is being extended. Then the question as to whether it relates to the organisation or whether it can relate to members of the organisation arises. What we are doing here under section 8 (2) is saying that moneys held by any person for the use or benefit of, or for the use or purposes of, an unlawful organisation etc. That extends it to the individual who has the clean image, the front for the suppressed organisation where it can be shown that it is for the benefit of, or use of...There is an extension in that respect also.

On the rights of the legitimate owner in the kind of situation drawn to our attention initially by Senator Ferris the bank robbery or the robbery from a home where there is money which is passed to a suppressed organisation, but who are not the rightful owners of it — I would argue that section 3 gives rights to the legitimate owner as well, because the fact that the money has come into the possession of an unlawful organisation or its members for a period does not imply a legal transfer of ownership. Even if a court were to interpret the situation along the lines suggested by Senator Ryan, the rightful owner has other powers under common law through which to proceed to obtain the money. Naturally, in the real situation this measure is being brought forward by the Minister and Government to prevent money being used for the benefit of the IRA. Consequently, there will be no reluctance on the part of the Minister to see money returned to rightful owners. There are powers, other than powers contained in the Bill, which protect the rights of rightful owners when money is taken by criminals or by any organisation.

Mr. E. Ryan

Providing the Bill does not preclude that.

Mr. Noonan

(Limerick East): No, the Bill does not preclude that.

Mr. O'Leary

I want clarification on this question. The Minister indicated his intention to ensure that money of this kind would be returned to its rightful owners, but due consideration would have to be given to the possibility that the same organisation would succumb to the same blackmail in the future. If it is not made uncomfortable for the people who fork out the money they will be under no constraint in the future if they are guaranteed that they will get their money back. This is a matter which has been brought to the attention of the House. The Minister should give consideration to this during the course of the period ahead as to what our attitude to this should be.

Mr. Noonan

(Limerick East): We are talking about two different situations. The particular instance which gives rise to this legislation is where the money is a result of extortion under threat of murder, assassination or kidnap. I agree with what Senator O'Leary says, but I am arguing on the generality rather than on the particular situation. There are situations where somebody at a loss as a result of a criminal act by an illegal organisation was in no way party to that loss. This is different, and this is what I had in mind when answering the questions from Senators Ryan and Robinson.

Mrs. Robinson

I want clarification on the question I asked as to whether the Minister is satisfied that the reference at section 22 is sufficient and does not require the inclusion of that extended by section 8. It is important for the purposes of the intention that it would include the extended definition in section 8.

Mr. Noonan

(Limerick East): The draftsman has advised that section 22 of the 1939 Act means section 22 as amended and it does not require us to state it specifically.

Question put and agreed to.

Sections 4 to 6, inclusive, agreed to.

SECTION 7.

An Leas-Chathaoirleach

Amendments Nos. 1 and 2 are related and may be discussed together.

Mr. O'Leary

I move amendment No. 1:

In page 5, subsection (1), line 33, to delete "£100,000" and substitute "£1,000,000".

Section 7 deals with penalties for people who fail or refuse to comply with the requirements of the Act. The first amendment deals with the penalties which are described in subsection (1), that is, the financial institution, the bank itself, being responsible and unwilling to act in accordance with the direction of the Minister.

To a certain extent this may not be as important as the other amendment, While it is true to say that the bank would be at risk to the extent of £100,000, it depends on the State for its continued existence. An unfriendly act such as this would not be easily forgiven by the State, and to this extent the relationship between the bank and the State would mean that a relatively small fine would be sufficient. When we are talking about money which we can only speculate as being some millions of pounds, a penalty of £100,000 on a bank might be quite small, and the bank may consider itself intimidated into a situation when it would be willing to pay £100,000 rather than suffer the adverse consequences of the wrath of an organisation who would seek to raise this kind of money by extortion and threats in the first place. Therefore, it is necessary to put "beef" into the Bill in regard to the fines and terms of imprisonment under the succeeding section. For this reason I move in respect of section 7(1) that the £100,000 be deleted and £1 million be substituted.

The second amendment deals with the conviction of an individual in the bank who refuses or neglects to do something which he should do to comply with the legislation, Subsection (2) reads:

(2) Where an offence committed by a bank under subsection (1) of this section is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any person who, when the offence was committed, was a director, member of the committee of management or other controlling authority of the bank concerned, or the chief officer or other person, by whatever name called, having charge of the management of the bank, or the secretary or other officer of the bank (including the manager of, or other official of the bank at, a branch of the bank), that person shall also be deemed to have committed the offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.

It is important that on indictment the possibility should be open for a conviction for a number of years far in excess of two. This would be a method of protection for people who are working in banks. Supposing there was only a nominal fine provided for in the Bill. Members of the staff of the bank in question might find themselves under pressure; they might find themselves, by electronic means, agreeing to the transfer of money at short notice if the organisation concerned suspected that the Minister had made an order in respect of their funds. Two years is not sufficient as it does not give the bank official a strong enough argument, it does not enable him to say that he will get into the height of trouble if he carries out certain requests in the case of an organisation with seven or eight million pounds on deposit with the bank. At present the worst that can happen to the official is two years in jail.

When there is £7 million, £8 million or £9 million or £10 million involved, to threaten somebody with two years imprisonment is not proportionate. The protection of the employees of the bank must bring about a situation that the penalty for not complying must be very severe so that it will discourage people from putting pressure on them, as has been the case in banks already. Under both these headings, the fines which are contemplated and the terms of imprisonment are not sufficient.

Mr. Lanigan

Apart from the sanctions specified in the Bill has the Minister under any other banking Act the right to take away the licence from a bank which would contravene an order of the Minister? Can I take it that this is the only sanction, or under normal law would a bank lose its licence because of contravening a Ministerial order?

Mr. Loughrey

As I travelled to the Seanad, the saga was unfolding and like Senator Robinson I was afraid of other aspects which might have been raised. The figures were growing and growing as reports were coming in on radio. A seven figure sum was the first one. That extended not necessarily from the smallest possible seven figure sum to the largest possible, £9,999,999 and to a more substantial number of millions later on. It appears to me that when a sum of £100,000 was mentioned——

An Leas-Chathaoirleach

The amendment deals with offences and penalties.

Mr. Loughrey

I am dealing with section 7 (1). The figure of £100,000 seems a trivial sum in comparison to those to which I have listened on the radio. Senator O'Leary has said the sums of money that might be involved can be vast, and the sum of £100,000 to a financial institution is absolutely dismissive. If it became known to the institution that the Minister was presenting this documentation, and if leverage or threats were being used on the institution not to comply, this sum would be paltry in comparision to the amount of money that they might be handing over. I would support the argument by Senator O'Leary in this regard.

Mr. B. Ryan

It is not my usual position to be wearing a law and order hat, but I agree with Senator O'Leary. It would be very easy for a bank to cough up a fine of £100,000 if it would make life very simple for them. It is entirely out of proportion to the capacity to pay. It could be the easiest exit for them to comply with threats. It is ironic that this Bill results from the capacity of illegal or prescribed organisations to extort money by threats of one form or another. In that context a sum of £100,000 might seem to a major financial institution to be a very small price to pay for the ease of mind that they would have with the absence of threats.

I am always sceptical about prison sentences as having the capacity to deter, but in the context of some decisions we have taken in this House during my period here in the last two years, a two year prison sentence as a maximum seems trivial, for instance, when we are prepared to lock up a kid for five years for stealing a car or a kid who is a knowing passenger. But senior executives of a bank who conspire or connive to transfer enormous sums of money into the hands of organisations who would use them to do enormous damage to ordinary people will get a sentence of two years. I do not think it will matter. If a bank official has his family threatened, if we had life in prison it would not deter him. But the institutions, organisations and those who have executive responsibility who might be tempted to take an easier route need to have penalties that reflect their capacity to pay.

Mr. Noonan

(Limerick East): When we are establishing figures for an offence of any sort it is a matter of judgment. We examined the situation and came up with these figures after a certain amount of discussion. The figures are adequate. We are talking about a figure of £100,000 penalty on an institution which has been found guilty of an offence. We are talking about a lesser sum of money on the individual, but we are also talking about a term of imprisonment for individuals, whether somebody at senior level in the management of a financial institution or a bank manager or somebody in the absence of a bank manager who is managing the bank.

The real penalty and the real deterrent for a bank is the fact that a bank would leave itself open to conviction. One should look at the nature of the situation that would pertain when a reputable financial institution would be hauled before the courts and convicted of an offence under this Act. That is the big deterrent. The subsidiary deterrent is the actual amount of money. The sum of £100,000 in the light of a sum of money of seven figures might seem to bear an inadequate relationship, but there may be situations when we would be using this legislation for £10,000, £20,000 £50,000 — we are not always in the millionaire class when we are legislating or seeking to establish penalties. The penalties are adequate because the real penalty is the threat that a reputable financial institution will be convicted.

When it comes to the individual rather than the institution, a term of imprisonment is also introduced. Obviously one cannot put the bank, as an institution, into jail. A term of two years imprisonment is a reasonable deterrent for people in senior positions in any financial institution. A conviction and then a two year term of imprisonment are fairly heavy for the kind of people to whom the deterrent would apply. Non-compliance with the section could come about through neglect, and we must remember the nature of the offence per se when we are trying to establish the particular level of deterrent. After consideration what we have in the Bill is adequate and I would ask the House to accept it.

Mrs. McGuinness

Senator Lanigan asked the Minister a question as to whether it would also affect the licensing of the banks. The Minister has not replied to that question.

Mr. Noonan

(Limerick East): The licensing of banks is a matter for the Central Bank under legislation which was initiated by the Minister for Finance. It is not in my area and I do not wish to speculate as to whether it would have any effect on licensing.

Mr. Loughrey

It seems to me that the fine for the institution, to protect that institution from further blackmail from an organisation, should be a sum not less than the amount for which the document has been produced in the first instance: if it is £2 million the fine should be £2 million.

Mr. O'Leary

I regard Senator Loughrey's suggestion as a good one. I would like to ask the Minister another question; which I will put delicately to him. In arriving at the decision to set the potential fines on the financial institution in this regard, has the Minister taken into account the pattern of attacks on financial institutions in Northern Ireland over the last 14 or 15 years? It would appear to me that there has been a steady decrease in the number of attacks on financial institutions in that jurisdiction. Did the Minister give any consideration to the circumstances in which this decrease might come about when arriving at the figure of £100,000? There is an area there that the Minister should consider as being worthy of investigation. It might be an area which would indicate the extent to which these financial institutions are willing to obey the law in this regard.

Mr. B. Ryan

Is the Minister sure that there is such a thing as a reputable financial institution?

Mr. Noonan

(Limerick East): Yes, I am. We have a very good banking system. We have very reputable financial institutions. As I said, it is a question of judgment. I do not think we can have a sliding scale. We have to specify a maximum fine under law and allow the courts discretion to apply it at the appropriate time.

Senators seem to be approaching the argument from two conflicting sides. There are two perceptions being brought to bear on the question. First, Senators are arguing about the adequacy of a particular time as a deterrent. This can be argued up and down the scale. Second, they seem to be suggesting that there is some element of protection for bank staff in the level at which a fine is pitched. I would be doubtful about the second line of argument.

Bank staffs over the years have been subject to threat and in recent times they have continued to be subject to threat. I do not think that the IRA will be deterred from threatening anyone of us because of a penalty that might face any of us in law for not complying with their desires. We have thought about it. We have to strike a balance somewhere. A fine of £100,000 on an institution plus a two year prison sentence on an individual in a senior position in a bank provide the kind of deterrent necessary, always taking into account that the major deterrent for any reputable institution of any sort, especially a bank, is that it would be susceptible to conviction for an offence such as this in the first instance regardless of what the penalty was.

Amendment, by leave, withdrawn.

Amendment No. 2 not moved.

Section 7 agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. B. Ryan

This is where I raise my spectres again. Section 2 refers to the property of an unlawful organisation and the Minister has clarified that the organisation would be proscribed under the Offences against the State Act. Section 8 (2) seems to extend the property of an unlawful organisation to moneys held for the use or benefit or for use for the purposes of an unlawful organisation. Have I misunderstood the section?

Mr. Noonan

(Limerick East): That is correct. That section extends the Offences Against the State Act, 1939, in that respect, as I said in my Second Stage speech.

Mr. B. Ryan

Could the Minister explain to me what the terms, particularly "benefit of" or "for the use or for the purposes of an unlawful organisation" mean?

Mr. Noonan

(Limerick East): They are ordinary terms which would indicate that the unlawful organisation had access to these funds through some kind of front man or a reputable launderer and that in the final analysis they would be used to forward the activities of the unlawful organisation.

Mr. B. Ryan

Could it include the objectives of the organisation as distinct from the activities?

Mr. Noonan

(Limerick East): The purposes of the unlawful organisation would include that.

Mr. B. Ryan

Therefore, I have profound reservations. Take the case of the H-Block candidates who participated in the 1981 election. I was not in politics until after that election, but to put it clearly I was not involved in the H-Block campaign but I suffered a considerable amount of personal and indeed physical abuse because of my opposition to them in another capacity. Nevertheless, they participated in an election and there was a widely held view expressed in Irish political circles that they were operating to the benefit of and indeed in parallel and in tandem with the Provisional IRA. Would it, therefore, be reasonable for me to say that moneys held by individuals in the H-Block campaign will come under the provisions of this Act?

Mr. Noonan

(Limerick East): Ultimately, the courts would have to determine this. The property of an unlawful organisation and moneys held by any person for the use or benefit or for the purposes of the unlawful organisation in respect of which a suppression order in section 19 was made would come within the ambit of the powers of this Bill. We are talking about moneys which the IRA would have or moneys held and to which the IRA would have access for their purposes, and we know what they are. In the same way as we go after their members if we believe that certain members have been involved in crime, whether it is kidnapping, a murder or bank robbery or whatever, we would go after property by virtue of the Offences Against the State Act, 1939, under which their property is forfeited anyway if it is the property of a suppressed organisation. It is likely, too, that we would go after money which the IRA would have if we could find where they have it.

Mrs. McGuinness

Exactly how will subsection (2) work out? I understand perfectly what the Minister said: he means money which is held by a sort of clean front for IRA purposes, and I am in absolute agreement with him that this money should be affected by the Bill. Would it mean that the Minister would decide when he was going to make one of these orders, this was the kind of money in question and then that some person or persons could later make an application to the court saying that is not what the money is and that the courts would then decide? Is that the kind of mechanism that would be involved?

Mrs. Robinson

As I made clear at Second Stage, it would be this section which would be of particular concern to me in a broader sense. I asked, and I do not think the Minister has yet answered, whether there was thought given to the possibility of basing a measure of this sort on Article 28 as opposed to an amendment of the Offences Against the State Act, which has effectively been done. The effect of subsection (2) is unclear. We have to admit that it is unclear what property would be included, but whatever property is included and deemed to be the property of the unlawful organisation is automatically forfeited not by any order by anybody at any time, but by virtue of a special order which may have been made many years before.

Therefore, it is far-reaching. We are dealing in section 2 of this Bill with a particular mechanism of applying to court in relation to it. The scope of it rests on the provisions of sections 19 and 22 of the original Act. If it is deemed to be the property of the organisation, although held by an individual or individuals, then it is automatically forfeit. I do have concerns about the existing provisions of section 22 of the Offences Against the State Act as extended in section 8 of this Bill. I have to express worries about the scope of it. It seems to be penal deprivation of property, which is a function of the administration of criminal justice by the courts. There seems to be an erosion of the separation of powers which is fundamental to the constitutional principles as has been enunciated.

Mr. Noonan

(Limerick East): The answer to Senator McGuinness is yes. There is a compensation provision in the Bill which has to be borne in mind apart from the fact that the Minister could be brought to court. Somebody could argue that it was not the property of an unlawful organisation and consequently win the case. There is a compensation provision as well, which is a further brake on the action of an impetuous Minister or indeed on an impetuous Government.

On Senator Robinson's point, I would have to say yes. Naturally, when we were considering in this particular instance we adverted to the powers available under Article 28 of the Constitution. It was felt that the manner in which we have approached this was sufficient.

Mr. B. Ryan

I am not going to get myself branded as a defender of the Provisional IRA — far be it from me. I long ago said that the abuse of powers that may be necessary to deal with the subversive organisations can often be the best recruiting agent the subversive organisations have. We argued about this question of alienation and all those things here on another issue a long time ago so I will not go into it again. It appears to me that, given the attitude of this and preceding Governments to Sinn Féin, to say in effect that they are synonymous with the IRA but membership in terms of objectives, methods and what they support, that as section 8 (2) is now presented to us the entire funds of Sinn Féin would come under the aegis of this Bill, and those of the IRSP. I cannot see why, if a Minister should choose to be awkward at some stage in the middle of a general election, he could not legitimately argue that he was acting within the powers of this Bill.

Mr. Noonan

(Limerick East): Anything a Minister would do in the middle of a general election campaign would be susceptible to whatever political consequences there would be for that action very quickly, so there would be an immediate accountability in that very limited sense. Sinn Féin are not a suppressed organisation, they are not a proscribed organisation, so moneys held by Sinn Féin would come within the ambit of the Act and there would have to be information that they were IRA moneys, and the Minister would have to be prepared to argue that subsequently if moved against. I do not believe any of us contributing to this Bill expect that the Provisional IRA will walk into a bank and open accounts, a cheque account and a deposit account, No. 1 IRA account and No. 2 IRA account.

Quite obviously in the normal sense of activity they will either use front organisations or front men or women. There is not much point in doing what we are trying to do unless we can talk about persons "with the use and benefit" etc. It is an essential component of it if we are to be effective. It is a strong remedy. I suggest that the amount of money involved, if it could be used for the military activities of the IRA would cause us a lot of problems.

Question put and agreed to.

Section 9 agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.