SECTION 5.

Amendments Nos. 2, 3 and 4 are related and I would suggest they be taken together. Amendments Nos. 2 and 4 are consequential on No. 3.

I move amendment No. 2:—

To delete paragraph (a), sub-section (1).

One of my difficulties was the wide power given to the Government. They may prefer the Defence Forces to be on active service even though there be no emergency at all. That is a very bald power. If it were limited to a period of emergency I could follow that, but I cannot follow it for ordinary peace time. Paragraphs (b) and (c) of sub-section (1) state when a man is on active service, that is, when forming part of a force engaged in operations against an enemy or engaged in a place occupied by the enemy. If a state of emergency is declared by the Government or the Dáil I can understand the forces being on active service, but it is too wide to say that the Government may declare them to be on active service at any time—in which case all these serious punishments, even including death, may be enforced by court martial. For that reason, I think the Government should not have that wide power under sub-section (2).

It is not the Government that is getting these powers, it is the Army—through the Government of course. It might be found necessary to give this power without any operation against the enemy having been actually commenced, but obviously imminent. The Government would have to be the judge in a case of that kind. There are other circumstances, too, for instance if the country were subject to intermittent air attack but no actual fighting were taking place on the ground. The powers might be necessary then.

Mr. Collins

Does the Minister envisage the Army needing the power to declare a state of emergency ? If we were subject to intermittent air raids, does the Minister not think the powers under Section 4 would be already invoked? Deputy Cowan's difficulty seems to be, would it not be possible for the Minister or the Government of the day, in certain circumstances, to limit it and correlate it with Section 4: " In any emergency the Government may declare the Army to be on active service."

I think we can safely leave that as it stands. No Government will rush rashly into making an Order under sub-section (2) of Section 5. Although the Minister says it is the Army, it is the Government that will make the Order: " The Government may, whenever they consider the circumstances are of such a nature as to warrant their so doing, by Order under this sub-section declare the Defence Forces to be on active service." They will not do that without the emergency having been declared, under a previous Order. If you leave them the power under the previous section, even with the limitation that is on it, then it is only natural that you would leave them this power to declare Óglaigh na hÉireann to be on active service. I do not see any objection to that at all and I would suggest to the Committee that that section would pass as it stands. I have no objection to it.

Is the Deputy pressing the amendment?

I would like the Committee—and I would like the Minister also—to consider the aspect of it that has caused me some concern. If a state of emergency is lawfully declared, I can understand the Army or any part of the Army being placed on active service. The Act provides that whenever a man is attached to or forms part of a force which is engaged in operations against an enemy, whether intermittent or otherwise, he is on active service. If he only fires a shot every 24 hours, he is on active service. If he is in a place wholly or mainly occupied by an enemy he is on active service. The object of military people—and I understand it pretty well—is always to get all the powers they can. That is the case in every country. The military forces are trying to get all the power they can. The ordinary civilian is trying to prevent that. There is always a reasonable compromise between the two. I can see no reason why the Army could be declared to be on active service unless there was a state of emergency, unless they were engaged in operations against the enemy or unless they were in a place wholly or mainly occupied by the enemy. If the Minister can justify on any grounds putting the Army on active service when there is no emergency, when there are no operations against the enemy, when there is no enemy about, I will be glad to hear the justifications.

There was an emergency declared in the last crisis through which this country passed. The Army was never declared to be on active service.

There was intermittent bombing of this country and still the Army was not declared to be on active service. There were shots fired both by the infantry and the anti-aircraft artillery and still the Army was not declared to be on active service. The only way in which I can alleviate the distress that appears to be in the mind of the Deputy and his fears as to what might happen to soldiers is to say that it could happen that a soldier might be acting in a treasonable manner at such times. It might be necessary to deal very stringently with him in such circumstances. Again, I think it is just the same old fear of misuse of powers by some individuals. The only emphasis I can put on the fact that I do not think it is likely to happen is by saying that we went through six years when sometimes there was very provocative action on the part of one or other of the belligerents and still the Government never declared a state of active service. If it was necessary to declare a state of active service as a result of their belief, as a result of the information at their disposal that an invasion was imminent or as a result of the intermittent bombing to which I have referred, it would be highly desirable that the brake or shackles should be removed from the right of the Army immediately to deal with a situation of that kind. You can well imagine what might happen if, say, somewhere down in the Midlands or in the West a couple of hundred men were dropped by parachute. You can well imagine the absolute necessity for the Government to use these powers to deal with a situation of that kind. It might reasonably prevent any further development, whereas, if it was not dealt with immediately, it might result in a general state of activity all over the State. I do not think there is any danger to be feared from giving this power to the Government.

It is not so much the Government's action that Deputy Cowan is afraid of but that, through the power the Government will give to the Army, there is a possibility that, in circumstances, the Army authorities might misuse the power in connection with private soldiers. Quite possibly a man could be court-martialled and sentenced to death. I am anxious to support Captain Cowan in his anxiety to safeguard the Army personnel from being, shall we say, too harshly treated or victimised.

A declaration that the Army is on active service is consequential, if you like, on Section 4, is it not? There is nothing unusual, as far as I can see, in subsections (b) and (c) of Section 5 and (a) follows from Section 4. Therefore it is logical.

Section 4 need not be invoked at all.

Mr. Collins

That is why I asked the Minister the specific question: Was there any circumstance of emergency that Section 4 could not cover that he envisaged that would give rise to the necessity for the wide powers that are taken in Section 5. If Section 5 is made consequential on Section 4, I do not think anybody has any quarrel with it.

No objection but there is something more in this.

Mr. Collins

There is a power outside the four walls of Section 4 inherent in Section 5 and that is why I asked the Minister that question. Every circumstance that the Minister has put to the Committee so far would constitute an emergency in which Section 4 could be invoked. With respect to Deputy Cowan, the only amendment I would suggest is to limit Section 5 to being consequential on Section 4. All the amendments suggested by Deputy Cowan would then be met.

I have no objection to the Government having power to declare the Army to be on active service in a period of emergency declared by them. I said that in the beginning. I have no objection to that.

Mr. Collins

I am sure the view of the Minister and the Government would be that there would not be any circumstances outside the emergency as envisaged in Section 4 in which it would be necessary to call the Army on active service.

We are actually using the same words—" the Government may, whenever they consider the circumstances are of such a nature as to warrant their so doing, by order under this subsection. . . ."

I think Deputy Cowan's and Deputy Collins' point is that the Government, without invoking Section 4, could declare the Defence Forces to be on active service—without declaring an emergency.

Mr. Collins

I think the section in its very framing envisages being consequential on Section 4. I was wondering could the Minister between this and Report Stage ensure that that limitation was there, that there would be an exercise of the declaration under Section 4 before Section 5 could come into effect.

It means that the Government would have made two Orders—they would make an Order declaring a state of emergency and another Order declaring the Army on active service.

Would this meet Deputy Cowan—saying in subsection (2), " the Government may in a state of emergency. . . ."?

Yes ; " the Government may, whenever they consider the circumstances during a state of emergency. . . ."

I will undertake to have that examined again.

It would necessarily follow that the only time in which you could deem the Army to be on active service would be when the Government would declare a state of emergency. Possibly there would be occasions when it would be necessary to deem the Army to be on active service, but the situation might not be serious enough to declare a state of emergency.

That seems to be the point.

If I may say to Deputy Corish, " active service " for the purpose of the Act does not mean that a soldier fights better on active service than if he is not on active service. If he has to engage an enemy he fights him whether he is declared to be on active service or not. " Active service " for the purpose of the Act has very serious military consequences, affecting the personnel, their discipline, their punishment, and things of that kind. You can be shot for an offence on active service for which if you were not on active service you would not be shot. As far as the defence of the State is concerned, a soldier will do his duty all the time, but it is the consequences that we are concerned about, and the Act itself provides that if he is engaged in operations against the enemy he is on active service. The Minister has not to declare it. He is automatically on active service. If an enemy is occupying a place and he is against them he is on active service automatically under this Act. This Act so declares. The Minister has power to declare the Army on active service, and what has been suggested to the Minister—and he has agreed to consider it—is that that should only apply when a state of emergency has been declared. I think that is as clear as I can put it.

I will have that examined from both the Army and the legal aspects.

Yes. Amendments Nos. 2, 3 and 4 may go then.

Amendments Nos. 2, 3 and 4, by leave, withdrawn.

Mr. Collins

May I ask this question—they are withdrawn, the Minister agreeing to examine the matter ?

He has given his undertaking.

Section 5 agreed to.