I have received notice from Deputy Johnson of an amendment to Amendment 1, to delete the words "wherever reasonably practicable."
DAIL IN COMMITTEE.
The amendment sent down from the Seanad, and to which we are asked to agree, is to insert this new Sub-section. The words, "where-ever reasonably practicable," which occur in it, seem to me so loose, and render the new Section so loose, as to make the new Section of no value whatever as a protection. "Where the responsible officer . . . . has reasonable ground for anticipating that it will be necessary to enter a dwelling-house." Surely, where there is reasonable ground for anticipating that such a course would be necessary, it would be practicable to call for a police officer to be present, but when we, having spoken about having reasonable ground for anticipating, then put in the words, "wherever reasonably practicable," we must ask ourselves who is to judge of the reasonable practicability, and immediately it will be seen that these three words simply nullify the whole effect of the amendment.
I think it is very desirable that the section should be embodied in the Bill, but if the section is to be an effective one, it ought to ensure that the military will not be free to enter a dwelling-house without being accompanied by a police officer. And the new section, if the amendment I am moving is accepted, deleting these words "wherever reasonably practicable," would give some assurance, at least, that the intention was to ensure that a policeman would be present when the military were going to enter a house. But if we leave these words in "wherever reasonably practicable," we simply nullify the effect of the new section, because it may be that the soldier himself will say it was not reasonably practicable, and if there is any doubt in the mind of the citizens, it can only be decided by going through a long process of law. If these words remain in the effect will be that the responsible officer who, in given circumstances may be a private soldier, will be empowered to enter into a dwelling-house to make an arrest and he will be the judge of whether it was reasonably practicable to ask a police officer to come with him. I think that ought to be avoided if possible. I think the new section would be a protection for the citizens if these three words were deleted, and the responsible officer is quite well guarded when he is asked to ensure that an officer of the police should accompany him when he has reasonable ground for anticipating that it will be necessary to enter into a dwelling-house. The anticipation must be there before he breaks the law. The new section only deals with cases which are prepared beforehand, and if there is any preparation for entering a dwelling-house to make an arrest, surely it is not unreasonable to insist that the police officer should accompany the soldiers. I do not think that the case would be so strong for the deletion of these three words if we had not defined the responsible officer as being a private soldier who had got authority from a superior officer, but taking that definition into account I would urge the Dáil to agree to the deletion of these three words from the new Section, which would then be a real protection to the citizens against the irresponsible action of people who are called "responsible officers," and who are defined as being soldiers acting under general authority.
Mr. O'HIGGINS
The history of this amendment in the Seanad is that it was put up, in the first instance, without these three words. After I had spoken to it and recited certain objections which to me seemed obvious, the suggestion came from one of Deputy Johnson's colleagues in the Seanad that it would be reasonably acceptable if these three words were inserted. That was subsequently agreed to, after consultation with the Minister for Defence. Deputy Johnson has spoken much of the necessity of protecting the citizen, and Deputies have to ask themselves wherein lies the best protection for the citizen, whether you are to impose restrictions on the military that may render their activities and their operations in certain districts extremely difficult, or simply trust to a responsible spirit and a responsible outlook to take all necessary precautions. You cannot legislate really on the basis that you have even a rough uniformity in the conditions throughout the country. Conditions in Kildare, for instance, will differ very much from conditions in South Leitrim or West Cork, and that ought to be realised by Deputies.
Now take the words in this amendment from the Seanad: "In any case. where a responsible officer of the Military forces of Saorstát Eireann has reasonable grounds for anticipating that it will be necessary to enter a dwelling-house for the purpose of effecting an arrest," and so on, it might be said that an officer going out in charge of a patrol in a particular area might always anticipate, and should reasonably anticipate, that in the course of his duties for the day it might be necessary to enter some dwelling-house, and it is suggested that every day an officer, going out in charge of a patrol in a particular area like West Cork or South Leitrim, should take with him a member of the Dublin Metropolitan Police or of the Civic Guard. Who is to interpret, or who is to say, when an officer has reasonable grounds to anticipate that it will be necessary for him to enter a dwelling-house? I submit that no one can really say that except the officer himself, judging the conditions in the area, and judging what the nature of his duties in the course of the day are likely to be.
The saving clause with the words, "wherever reasonably practicable," is inserted simply out of an appreciation of realities. An officer in charge of a party of troops starting out on a patrol may have had no real grounds to think that it would be necessary for him, in the course of that day's duty, or couple of hours' duty, to enter a house at all, but on the way he either sees a very much-wanted man entering particular premises, or gets very definite information that such a man has entered particular premises. The nearest Civic Guard Station, let us say, is ten, twelve or fifteen miles away. Is he to halt his men on the road and send an urgent despatch for the Civic Guard officer to come along so that he may enter those particular premises? You need that saving clause, and you simply need it because you are not dealing with straight lines, you are not dealing with a uniform situation, but with a situation that is an essentially patchwork one; you cannot draw your straight line or put your two-foot rule to it and say, the thing shall be done in such a way and not in such a way. In South Leitrim, and in parts of Cork, a party of troops patrolling might find it necessary, at any time—on quite short notice, they might find it necessary, I say, or at least highly advisable in a proper performance of their duties—to enter a dwelling-house, and it might be utterly impracticable to secure the attendance of a police officer so that that particular visit might be carried out in accordance with the law as it would be if Deputy Johnson's amendment to this amendment were to be accepted by the Oireachtas.
I would point out to the Minister that the Bill, as it stands, pre-supposes that the responsible officer or some of his responsible officers, if they happen to be below the rank of Commandant, must, before they make this arrest, or before they enter a dwelling-house to make the arrest, be empowered in a particular case to make such an arrest. Now, if that power has been given specifically, in a particular case, surely at the time of giving that authority it is practicable to arrange for a policeman to enter. I submit that the three words "wherever reasonably practicable" simply mean that the soldier will use his own discretion, whether he calls a police officer to assist him in making the arrest, or to be present at the time of the arrest. Now, the Minister should take it perhaps as a compliment to the Force for which he is responsible, that we should require that a police officer should be present when soldiers are doing work which clearly should be done by a policeman, and the fact is, of course, that from experience people have not confidence that soldiers will be so discreet and so well disciplined as to refrain from entering houses when they have that general power, even though there is no justification for their entering houses. We are hoping that that stage has passed, and we are hoping that we will never have occasion to regret the acts of soldiers doing such things as they have done, but the Bill as it stands does give authority to troops who may have, by general order, been empowered to make arrest, because the Section as it stands does give them the authority to enter dwelling-houses to make these arrests.
I desire that we should ensure that these powers are only to be exercised when there is specific authority given, and in such a case it is practicable, I suggest, to arrange that a police officer should accompany the soldiers when entering dwelling-houses. But, I submit, that if we are to leave in the words "wherever reasonably practicable" we lessen that assurance very considerably, because we leave the judges of practicability to be the people who are going to make the arrest, and who may be, according to the Bill, a private soldier or private soldiers under the direction of a sergeant, or any other officer junior to a sergeant. We have enlarged the definitions of the Bill in such a way as to make it necessary to provide that a police officer be present when the military are going to make an arrest. I admit that much of this argument depends on the reading of the Bill, and particularly of Section 8, which defines the case where the military may use these powers.
There appears to be a grave misunderstanding, judging by the debates which took place in the Seanad, as to whether the power is to be given to military to make particular arrests of particular persons, or whether the Bill gives powers to military over particular areas. There is a very wide divergence of opinion on that, but I think the Minister for Defence will agree that his speech on Tuesday, 15th January, makes it quite clear that his intention, at any rate, was that this power should apply to particular cases, that is to say, to particular persons in particular areas. In view of the doubt in the matter, as between the two Ministers, which will have to be resolved, presumably, by a Court, involving very considerable expense on the community, it is better to minimise the evils as far as possible. That is why I urged that the responsible officers should always, wherever there is anticipation that an arrest will be necessary in a dwelling-house, be accompanied by a policeman.
I think the Deputy, in a previous discussion on this Bill, almost complimented the Executive on their valiant attempt to bring the Military Forces in the country back to their normal position.
They may do things you do not want them to do.
I think the compliment was not undue. I think I made it plain, when speaking on the matter, that we wanted to avoid placing any general administrative area in the country in the hands of the Military. The administration of law and order in the country rests with the police. We have the country studded with military areas, from the point of view of the administration of the Army, but there might be areas where conditions are such that we might have to say the Commandant of a particular area and his superior officers shall be regarded as the "responsible officer" for the purpose of certain clauses in this particular Bill, and that in such area that Commandant would be empowered to delegate the powers of "responsible officer" to a lower officer. That would be in the case of an individual Commandant commanding a particular Battalion. You then get to the other end of the question, and because the administration of law and order is in the hands of the police, say in Co. Cork, that does not prevent this situation arising. People have heard of Kealkil and some of these places. A responsible military officer or a responsible police officer might say there is a bunch of fellows in Kealkil and they should be rounded up. There are men there who are carrying arms and who are making themselves a nuisance to the people. The military might not be able to satisfy themselves as to whether this particular person or that particular person is in that particular group. You might have to send out a Military Party to deal with that particular situation. The question might arise as to whether a Civic Guard should accompany the party of military who are going out on an expedition of that kind. I regard it as not unreasonable that the responsible Military Officer should say: "The circumstances we may find ourselves up against in this particular matter, are such that we should not bring with us a member of an unarmed force." Even at this particular stage of normality in the country there are places where a problem like that might arise, where a party might have to enter a dwelling-house. I admit that it is an extreme case. I admit that the normality in the country is such that you might take it, as a general rule, that even in such cases you could bring a member of the Civic Guard with you, but in the actual carrying out of the work a small military party might have to enter a house at the same time as three other houses were being entered. One party might be entering a house five hundred yards to the north side of Kealkil, and they might have a Civic Guard with them, but at the same time another party might have to enter a house five hundred yards to the south side, and they might not have a Civic Guard. We do need—and this is a matter that really requires to have particular attention drawn to it—the protection of the law for the members of our Military Forces, who, in the present circumstances, are called upon to deal with very delicate situations. It is, perhaps, quite right that members of the military forces have not said "miss" or "ma'am" or "please," at quite the right moment, in particular parts of the country, but their duties have been very difficult and, just at the present moment, when you want to have them absolutely circumscribed by law, their duties are bound to be infinitely more difficult. I feel that by leaving in the words that are here we give our military forces, at any rate, some protection from the law, which, if it were stringently applied without this protection, in every particular case, would make the working of the military forces absolutely impossible, because we are taking up the attitude in regard to our military forces generally that they are working in normal times and that we impose upon them the restrictions of normal times in all their work. Having had to perform exceptional duties in exceptional cases, we have been having our men exceed the law in many parts of the country, and they could be made amenable to the law. If a responsible officer realises that a certain action is necessary, which would redound to the public good and the public safety, and takes action, he takes the responsibility of such action. If he does good we praise him, and if he puts his foot in it we say the Army is a terrible institution and we must put down this sort of thing. But we are giving our greatest possible attention to the necessity for bringing our military forces out of the situation. The fact that this Bill gets finished in the Dáil in this particular form is a very good earnest of that. I would plead for the acceptance of these three particular words, "wherever reasonably practicable," for the simple reason that it protects the military forces in the discharge of very difficult and very delicate work. From the legal point of view, they are due that protection.
The Minister, of course, has certain desires, and he is doing his best to achieve his wishes in regard to the Army and with regard to the administration of the law and the like. He seems to forget that when this Bill becomes an Act it is not his intentions or desires or wishes that the soldiers will be working under, apart from internal discipline. So far as the law is concerned, it will be the Act as it will then stand. In acting, the officer will not plead the speeches of the Minister in the Dáil. If he can show, having committed a certain act which he is being charged with in the Courts. that it was not reasonably practicable to get a police officer, and that he is the judge of practicability, he might justify going anywhere to make arrests. The Minister in reality is pleading for a free hand for the Army. That is what it amounts to, though it is not what his intention is.
So far as arrest and detention for one week is concerned, I maintain that the Act will empower any police officer not below the rank of Superintendent, or any person who has authority delegated to him, to do anything that the Act allows to be done. That is disputed. If we are to leave the judging of practicability to the officer concerned or to the persons not being officers, not even being sergeants—any persons who have been detailed to arrest any person or persons—then they are free to go into any house in such an area if one Reading of the Bill is to be accepted. They are free to go into any house in such an area and arrest such a person without fear of the law. The Minister says he wants to protect the Army from the law. I commend him to the Minister for Justice, and would remind them both of the advice given about the necessity for enforcing the law. I would like this law, now sought to be made, to be free from doubts, and that it should not protect soldiers acting with very loose authority in a way in which soldiers have been known to act within the last few months. I think one move in that direction would be to delete these three words.
I have little to add beyond this, that Deputy Johnson puts one extreme view and says, "This amendment, as it stands, means a free hand for the Army." If we are going to say extreme things and quote extreme cases at one another, let me say that Deputy Johnson's alternative is that if any soldier in any set of circumstances in Leitrim or West Cork, or anywhere else, enters a house in search of a wanted man, without having along with him an officer of the Civic Guard or Dublin Metropolitan Police, that soldier is liable to action for burglary. That is an utterly absurd position—an utterly unsound position. The Deputy or Senator who would put that forward would be thinking and talking with the minimum of advertence to the realities of the situation. I ask the Dáil to reject unanimously and enthusiastically Deputy Johnson's amendment.
Question put.
The Committee divided:—Tá, 12; Níl, 46.
Tá.
- Pádraig F. Baxter.
- Connor Hogan.
- Séamus MacCosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheórais.
- Pádraig Mac Fhlannchadha.
- Tomás de Nógla.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Domhnall O Muirgheasa.
- Tadhg P. O Murchadha.
Níl.
- Earnán de Blaghd.
- Séamus Breathnach.
- Próinsias Bulfin.
- Séamus de Búrca.
- John Conlon.
- Bryan R. Cooper.
- Maighréad Ní Choileáin Bean Uí Dhrisceóil.
- P.J. Egan.
- Osmond Grattan Esmonde.
- H.J. Finlay.
- Desmond Fitzgerald.
- John Hennigan.
- Tomás Mac Artúir.
- Domhnall Mac Cárthaigh.
- Maolmhuire Mac Eochadha.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Seán Mac Giolla 'n Ríogh.
- Risteárd Mac Liam.
- Seoirse Mac Niocaill.
- Pádraig S. Mag Ualghairg.
- James Sproule Myles.
- Martin M. Nally.
- John T. Nolan.
- Peadar O hAodha.
- Criostóir O Broin.
- Seán O Bruadair.
- Próinsias O Cathail.
- Conchubhair O Conghaile.
- Eoghan O Dochartaigh. Séamus N. O Dóláin.
- Tadhg S. O Donnabháin.
- Eamonn S. O Dúgáin.
- Donchadh S. O Guaire.
- Aindriú O Laimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Thomas O'Mahony.
- Pádraig O Máille.
- Risteárd O Maolchatha.
- Séamus O Murchadha.
- Pádraig K. O hOgáin.
- Seán M. O Súilleabháin.
- Caoimhghín O hUigín.
- Seán Príomhdhail.
- Liam Thrift.
Amendment declared lost.
Question—"That the Committee agree with the Seanad amendment"— put and agreed to.
Amendment 2 from the Seanad: In Section 8, page 4, line 51, to delete the words "Ministry of" and to substitute therefor the words "Minister for."
Motion made and Question—"That the Committee agree with this amendment"—put and agreed to.