This is essentially a Committee Stage Bill. I might start off by saying that, on the Committee Stage, I shall be glad to see every section of the Bill being closely examined. I shall be glad to see every line of the Bill being closely examined, as has been suggested by some Deputies. As I said in my opening statement, it is a Bill that needs careful consideration. It is a far-reaching Bill which repeals a number of Statutes going back to the 13th century. While some of the proposals are re-statements and re-enactments of the law as we know it, still, there are others that need close examination. Some of these sections may turn out, with that close examination which is a feature of the Committee Stage of a Bill, to need some amendment.
Taking everything into account, I cannot complain about the way the Bill has been received in this House. Opposition Deputies are entitled to make the most of the fact that they had not before them any specific draft of what is proposed by way of amendments to sections 30 and 31. There was a genuine difficulty there but, on my side, there was a procedural difficulty. I felt that, if I were to circulate a specific draft, objection would be taken because this is not the Committee Stage.
In answer to Deputy M.J. O'Higgins I should say that, while I have spoken of amendments to these sections, this was only because I wanted to explain the nature of the changes. When it comes to putting down the formal amendments, I intend to propose two new sections and to omit the existing ones. I have spelled out, as well as I could, in my opening statement, the lines of what I proposed to substitute for sections 30 and 31.
Deputies in both the Opposition Parties have said they intend to vote against the Bill partly because of what sections 30 and 31 contain although I do not propose to retain those sections as they appear at present. Some Deputies have said they find some other sections of the Bill objectionable. It would seem, however, that there is disagreement among Deputies in the Opposition Parties on some of the proposals in the Bill. Some Opposition Deputies suggest one thing while other Opposition Deputies—possibly, I think, through misunderstanding some of the sections—have taken a different line.
Reference has been made to the sections providing for re-trials. These have been criticised as involving new principles, double jeopardy, and so on and we are told that once a man is acquitted that should be the end of the matter. I can only assume that the Deputies who made those remarks have not had an opportunity of assimilating what I pointed out in my opening speech, namely, that there is nothing new in the principle of what is proposed. A principle that, once a person is acquitted, that is the end of the matter is not by any means accepted in present law. On the contrary, when it is an acquittal on a point of law, the right of appeal, with the possibility of a re-trial, is the normal rule and has been so all along. These amendments apply, statistically, to fewer than one per cent of the cases. Essentially, they apply to this one per cent the rule that is already applicable in 99 per cent of the cases.
I pointed out in my opening statement on this particular matter that there is an appeal, by way of case stated on a point of law, in the district court: that has been the law for many years. This covers 99 per cent of these cases which are dealt with in the criminal courts. Indeed, this principle goes beyond the criminal law. For instance, in the Land Code there is an appeal from the Lay Commissioners to the High Court—again on a point of law. This applies irrespective of what happened in the courts below. This principle has been there for a very long time. All that is proposed is to apply the same principle to the one per cent of cases that are not already covered.
If Deputies have made up their minds to vote against the Second Reading—notwithstanding the apparently uniform support for the great bulk of this Bill, because that has been the tone of this debate—nothing I can say is likely to change it. But I can see no reason whatsoever why the Second Reading should not be allowed to pass without a division. There are 62 sections in this Bill. The criticisms that have been offered relate to just a few of them—indeed, in the main, to the two of them which in fact will not be moved. However, this is a matter for the Deputies themselves. I cannot help emphasising that most of the Deputies who have spoken on this measure have heartily welcomed many of the proposals in it. The vast majority of the criticisms of this Bill were confined to two sections that will now be omitted from it.
As I keep emphasising, this is essentially a Committee Stage Bill. As far as the close examination that will take place on the Committee Stage or on any amendments that may be moved is concerned, I shall certainly welcome a very full debate on it and on every one of them and will give specific explanations, where this is necessary, to get the Deputies to appreciate fully the reasons for these sections.
Even apart from what was said by Opposition Deputies about sections 30 and 31, the comments related to particular sections and, therefore, were comments that could more usefully be made on the Committee Stage. This was unavoidable as there is a variety of matters, not very closely connected, in this Bill but it would be much easier to deal with these specific matters on the next Stage.
Deputy O'Higgins made a point on section 7 about the case where an employer is defrauded of money and wants to get back his money but does not want to have to report the matter to the Garda. Deputy O'Higgins himself noticed that the Explanatory Memorandum drew special attention to this type of case because it mentions that to accept restitution is legally regarded as accepting reward for silence or, in legal parlance "compounding a felony". The Deputy can take it therefore, that I, too, recognise that there is an argument for some modification of the existing law if it can be kept within the bounds of reason. And for that reason I am glad to see that he has commented on it. I shall give this particular matter some further thought between this and the Committee Stage. I, too, in my time have experienced some of the difficulties that, obviously, Deputy O'Higgins has come up against in practising his profession.
On section 6, however, I think he went wrong. He said it places on the accused person the onus of proving himself innocent, and that this is a tendency to be found in much recent legislation. He admitted, however, that there are cases where this must be done because the particular sections would not be effective otherwise. I think he is wrong, however, about this section—it is, to be specific, section 6 (2). There is no question, there, of making the accused person prove his innocence. The essence of the offence is that the accused knowingly helped another to escape. The prosecution will have to prove that, but the section provides an exemption; even where the prosecution proves that he knowingly did this thing, it will be open to him to prove that he had a reasonable excuse. It is a well-established principle of law that a person who claims the benefit of an exception or an exemption has to prove that he is the exception he claims to be, and so there is no departure from principle. On the practical level, there is no conceivable alternative because the "reasonable excuse" the person might have would almost certainly be the kind of one that only he would know about.
Some references were made during the debate to the provisions about the collection of rates and taxes. I am glad to see that everybody admits that rates and taxes must be collected and that campaigns to withhold them cannot be allowed to succeed. This, indeed, goes without saying. Nevertheless, there has been criticism of these provisions on two grounds. The first is that they are unnecessary. It is alleged that the existing law is adequate. The second criticism is that, if there is a campaign of this kind, it betokens a failure at Government level.
In one sense existing law may be adequate. I said so in my introductory speech. An organisation that advocates or encourages the withholding of rates and so on is, by that very fact, an unlawful organisation, and the consequences of that, for the organisation, are very serious. The difficulty is that the consequences are so serious that one has to try to look the other way for as long as possible in the earnest hope that those responsible will see the light very quickly.
I do not think that is what Deputies mean when they speak of the existing law. They are not thinking of the Offences Against the State Act. They mean, I think, the legal process of enforcing the collection of rates by seizure. This, of course, is adequate for individual defaulters or even for defaulting groups if they are just a few local people with a purely local grievance. However, for many reasons, it is both inadequate and inappropriate where there is a widespread conspiracy to withhold rates. By any reasonable test, it is the people who incite others to withhold their rates and taxes who should be made amenable. Seizures are, of their nature, directed at individual defaulters, as such. They are cumbersome and expensive. In practice they require the diversion of large numbers of gardaí for protective duties. Where there is an organised campaign, seizures inevitably give rise to charges of discrimination, victimisation and questions as to why some individual should be first on the list. Yet we all know that somebody must be first on the list.
Before leaving that I should say that it has been the practice of some people who have participated in a widespread organised conspiracy of this kind to do the preaching, to take a leading part in the campaign not to pay the rates and so on, while they themselves, the inciters, took very good care to slip quietly in and pay their own rates. They got numbers of unfortunate people who were not aware of what was happening behind the scenes, into trouble with the law. We had that situation not so very long ago and I think that such people should certainly be made responsible for their actions in inciting others, who may be in an emotional state, to take part in these unlawful activities. They make sure that they themselves go scot free and that no sheriff can descend on them, to take their stock or chattels to be realised for rates due.
The other criticism that was made on this section is that when this sort of situation arises it means that the Government have failed in their duty. We have had this kind of comment also about demonstrations near Leinster House, statements that people would not be engaging in this type of protest unless they had a grievance and that, if they have a grievance, it must be the Government's fault. If this is just a matter of Deputies wanting to try to have a crack at the Government, I am not concerned; but if it is meant to be put forward as a serious argument against a change in the law, I feel bound to point out that it is a very dangerous fallacy.
I am quite sure that any Government—of no matter what Party— would like to give huge increases in agricultural subsidies, huge increases in social welfare benefits, huge increases in educational grants, in fact huge increases in everything if they had the wherewithal; but the purse of course is not a bottomless one, as we all know. Organised sectional groups—and I do not mean to use this term in any offensive way—tend to press their demands to the limit. Some people say that this group or that group would not be adopting these tactics unless they had a serious grievance. This of course is nonsense. Of course they would, if they could get away with it or succeed with it, and I for one have no intention of criticising them for that. In so far as different groups think that, by this form of action, irrespective of the demands of others or irrespective of the position of the national purse, they are going to get some special treatment, some of them will undoubtedly try it.
We should introduce a little realism into this. Different groups fight for the interests of their members and that is only to be expected. But in any civilised society one either fights within the rules or one gets penalised for going outside the rules. One of the rules is, and must be, that rates and taxes must be paid. Precisely because they are vital, there will always be a temptation to some groups to think of withholding them. The most effective way of ensuring that the temptation is resisted is to have it recognised, beyond dispute, that such a campaign is directed at the very foundations of our society and that it cannot be allowed to succeed. This is neither arrogance nor intolerance nor intransigence. It is, in sober truth, no more than saying that our institutions could not survive if we were to allow such challenges to succeed.
Some Deputies have referred to the criticisms of the Bill that have been made by various bodies such as county councils, trade unions and so on. In fact, I referred specifically to those criticisms in my opening speech. However, this picture which some Deputies attempted to draw of a universal condemnation of this Bill is a caricature. Most of the criticisms were concerned with just a few sections and it is only now, I think, that many people are getting to know that there are sections in this Bill apart from sections 30 and 31.
Deputy O'Leary suggested that I had tried to imply that the Bill's critics were just a group of subversives. He could not have been referring to anything I said in my opening speech. He was obviously referring to something I said in a speech in Cork some time back and, since he has referred to it, let me set the record straight. What I said was, and I quote:
On 26th July last, a letter was issued from the Sinn Féin Headquarters at 30 Gardiner Place, Dublin, instructing all members of that organisation to write to their TDs about the Bill. But not only that: they were also instructed to organise the writing of similar letters by any other organisation of which the Sinn Féin member happened to be a member. So, if you have a Sinn Féin Member of a County Council or a Trade Union, or a Residents' Association, he is instructed to get that organisation to lend its weight to the campaign. And, of course, these organisations are just told that the Bill contains such and such a provision—which it does not —and they, in all innocence, lend their names to this kind of campaign.
If anybody wants to read that as meaning that I denied there was criticism from these various bodies, when in fact what I said was the very opposite, he is welcome. If he wants to suggest that I said or implied that these groups were subversives when my whole point was that they were innocent victims of a planned campaign, again he is welcome. I am content to let the record speak for itself.
There is no point in any of the Deputies concerned trying to evade this issue. I accept, as I have repeatedly said, that there were people who had genuine objections to sections 30 and 31 and perhaps to a few other sections out of 62 sections in the Bill, but the resolutions and protests were not confined to these sections. They referred also to sections that are simply statements of the existing law and on which trade unions and others were grossly misled. Some of the protests were about sections like the provisions re-enacting something from the Conspiracy and Protection of Property Act of 1875— that have been the law of this land all down the years.
While I am on the matter of my speech in Cork and what I said on television, which was referred to by Deputy T.F. O'Higgins, I should like to answer the allegation that on both of these occasions I adopted a "notan-inch" policy and that if I had then adopted the line I have taken in my Second Reading speech, there would have been far less controversy.
I was on television for just a few minutes. My comments were taped beforehand and were limited to answering specific criticisms put to me. I knew nothing of the contents of the introductory statement given on the programme before my taped interview was shown.
As far as my Cork speech is concerned, I stated in the most explicit terms that it was made only for the purpose of answering some of the wilder criticisms of this Bill. I stated, again in explict terms, and I even said a few times during the course of my speech, that I was not to be taken as saying that the Bill needed no changes. I said I was expecting to make changes. On section 30, I quite specifically stated that I was defending only the principle on which it was based, and that it was in the interest of the public-at-large that the police should receive some advance notice; and almost the very last words of that particular speech were these, and I quote:—
I repeat that I have, from the outset, expected that some amendments will be necessary and I have at all times made it clear that I am willing and anxious to listen to reasoned criticism and indeed to do anything I can to remove any grounds for genuine misgiving even where I myself might be completely satisfied that there was no reason for such misgivings. All I ask is that the criticisms that are offered should relate to the Bill as it exists in fact and not the Bill as it exists in the imagination of those who have criticised it on the evidence of some casual paragraph in a newspaper report.
Even as late as today, some Deputies have been repeating that it was only just before I came into the House for the Second Reading that I indicated that I was prepared to make any change. Again, for the record, if I do not get tired hearing myself repeating this proposition, let me say that, from the very first time I spoke in public on this Bill, I indicated, just as I have quoted, that I was prepared to consider reasoned amendments and to listen to reasoned arguments in connection with the different sections of the Bill. That was my original attitude; that was my attitude all along; that is my attitude on this Stage of the Bill; and that will be my attitude on the Committee Stage of the Bill.
Deputy Michael O'Higgins, in his comment on the Bill, spoke of the duty of the State to preserve law and order. He said there were different ways of carrying out that duty and he thought the best way was to have a situation where the law is respected and not merely tolerated and where the organs of the State are admired and not feared and where the whole administration of justice is welcomed by the people.
I certainly support that proposition and I expect that every Deputy in this House would do likewise. But how far does one take it? I am sure that Deputy O'Higgins and most other Deputies are quite familiar with the fact that we have all kinds of people and groups standing up on public platforms and openly admitting that they are not really concerned with remedying this grievance or that grievance but with, as they put it, "destroying the system".
Many of them will say that they have not the faintest notion of what new system they wish to put in its place. They even say it is somebody else's job to find an alternative. Some others, of course, are quite clear as to what they want in its place and what they want is something which few, if any, of the Deputies here would welcome. However, these people claim that to destroy the system they are entitled to resort to public disorder. There is not much use in talking to people like that about respect for the law. They say they have not any and I put it to Deputy O'Higgins that, on that issue, at all events, he can safely take their word. I also put it to the Deputy and to the House that we must take account of life as it is and not as we might wish it to be.
In much the same way, I must take issue with Deputy Dunne who seems to me to allow his humanitarian ideas to get the better of his good sense. He opposes all retrials, even those the law already provides for. However, I will say that he has been much more logical and consistent than some of the experts outside this House. He was quite right in putting his finger on the fact that what is at issue is the ordeal of the trial and not the purely formal and legalistic point that in one case there has been an acquittal and in the other case there has not.
The formal acquittal on a point of law carries no weight at all because we are talking of cases in which the acquittal is due to a legal mistake and was not given on merits. In such a case, the accused has had much less of an ordeal than where a jury disagrees, because he has not gone through the ordeal of waiting for a jury verdict. The logic of the situation is, therefore, that we should either have no retrials at all, as Deputy Dunne advocates, or have what the Bill provides. I am afraid that it is quite unthinkable that retrials should be completely abolished. It would inevitably result in some people who were clearly and provably guilty of crime evading trial. This, I imagine, would be quite unthinkable to most Deputies. I wish to say very seriously that, in certain circumstances not at all far-fetched, it could lead to crimes of private vengeance by injured parties or their relatives convinced that the law did not allow justice to be done.
Deputy Dunne also took up my reference to special courts and proceeded to launch an attack on them. I do not accept what he said but, if he takes the trouble to re-read what I said, he will find that the very point I was making was that nobody likes special courts and that we should, if we can, create a situation in which special courts will not ever again be necessary.
He spoke of making it easier for the State to secure convictions. This phraseology does not fit the facts as they now are or the situation that we are trying to establish. It is phraseology which gives the impression that the prosecutor goes out to "get his man" irrespective of whether he is guilty or innocent. This is not so. What the prosecutor does is to place all the facts before the court and then let the court decide, and the court decides subject to that over-riding provision about the onus of proof. All this Bill seeks to achieve is that we should do away with some quite artificial and illogical obstacles which prevent the jury from giving a true verdict based on the available evidence.
Deputy T.F. O'Higgins launched a severe attack on the Bill and he picked on section 24 as a particularly bad example of the kind of provision which he accused my Department of thinking up without having any regard to individual rights. Again, if he will refer to my opening speech, he will find that this section which he thinks so dreadful is taken—as I acknowledged—word for word from English legislation and was recommended by a distinguished English committee of legal experts. The Deputy may disagree with the section, but I think that if he had known of the weight of expert and learned opinion that supports it he would not have been so quick to dismiss it as a product of bureaucratic minds insensitive to the interests of ignorant or unrepresented defendants. And if he reads the report of that English committee, which I have placed in the Library of the House, he will see that that section is very carefully thought out.
Deputy Belton said that this was a Bill which is mainly the concern of the lawyers of this House. However, by far the most constructive criticism came from Deputies who were not lawyers at all. I notice that neither of two eminent lawyers in the House, Deputy Lindsay and Deputy T.F. O'Higgins, thought it necessary to read my opening statement on the Bill or the Explanatory Memorandum. I feel justified in claiming that, if they had done so, they would not have made the contributions they made in the House on this Bill.
Deputy Dillon, Deputy Dunne and other Deputies referred to the repeal of Magna Carta. This repeal is, in fact, a formality and is simply part of the continuing process of clearing away deadwood from the Statute Book. As I mentioned in my opening speech, the Bill proposes to repeal in full over 120 old and obsolete statutes. Very many of the chapters of Magna Carta have already been formally repealed from time to time. What is left, apart from Chapter 16, is superseded either by the Constitution or by later specific enactments. Habeas corpus, which has been referred to in the debate, is not dependent on Magna Carta: it is specifically provided for in our Constitution. It is well known that the original Magna Carta was a charter to which the good King John was forced to affix his seal at Runnymede in surrender to the barons; our charter of liberty is the Irish Constitution.
Chapter 16 of Magna Carta is not being repealed. This is concerned with the obstruction of rivers and is a provision of civil law, not criminal law. Whether it is still a live part of our law I could not say without very long and detailed research. This was not gone into when the repeals were being prepared, because this Bill deals with the criminal law.
Deputy Dillon also suggested that we should have a Consolidation Bill dealing with some of these repeals. I am afraid it would not work out, and I say this specifically on the point he particularly mentioned, that is, powers of arrest. Most of the powers of arrest are Common Law powers, and are not always clearly defined. We could not have a consolidating Bill on them. His proposal is the exact opposite to what is normally accepted in England as well as in this country as the proper and most effective procedure for consolidation, that is, that one first passes a Bill to make any necessary changes and to clear away anomalies preparatory to consolidation.
Deputy Dillon mentioned that this Bill was left suspended for two years from the date of its publication. In fact, it was not published until May last. I agree, and I am fully conscious of the fact, that if we had the Second Reading a lot sooner, much of the misapprehension and misunderstanding that have arisen in the minds of some of the public would have been eliminated.
Some Deputies, including Deputy Dillon, were concerned about majority verdicts. Deputy Dillon thought it was quite wrong for me to emphasise the position in civil cases. If the Deputy looks at the record, I think he will agree that I did not emphasise it or make much point of it. I made what was just a passing reference to the fact that majority verdicts by juries in civil cases have been accepted here since the foundation of the State or as long as I remember the legal business anyhow. Of course, in places like Scotland, in both civil and legal cases that has long been the position, as I pointed out in my opening statement.
I think some Deputies missed an important point. If you have one recalcitrant man on a jury in a criminal case, he can hold up the whole proceedings. If there are eleven jurymen for acquittal and one for conviction, then there must be a retrial. Deputies are inclined to think this is always going one way, but, of course, this is not so. There have been cases, such as I have mentioned, where one or two have held out for a conviction against nine or ten who wanted to give a verdict of acquittal. This is an aspect of the changing of the jury system that does not, as I say, occur to Deputies or people generally considering this problem.
The other matter—and I shall go into this in greater detail on the Committee Stage—is that in this country we have the problem over a number of years of quasi-political crime, if I could describe it as such. I made it quite clear that the reasons for this proposed change have nothing to do with the reasons for the change in the law in England, which, we know quite well, was due to juries being got at by highly organised gangs of criminals, but we have here, from time to time, cases, some quite recently, where certain political elements have been involved in crime and where juries, or some of them, have been got at or an attempt made to get at them. As I pointed out in my opening statement, if the majority verdict operated here that type of campaign would be far less likely to succeed. It is true that if the situation warranted it, if it got really serious, we could be driven back to our special courts, but, as I say, I do not like that; I do not want that. On the Committee Stage of this Bill I shall go into this matter further with Deputies in the House, but I believe this is a correct way of tackling the difficulty which is peculiar to our country. Deputies on reconsideration will probably come round to my view.
