Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage (Resumed).

Question again proposed: "That section 4, as amended, stand part of the Bill."

Minister for Justice (Mr. O'Malley)

Before Question Time I was dealing with what would be an offence under section 4 and I pointed out and I want to reiterate that merely to criticise housing conditions or encourage people to squat simpliciter would not amount to an offence under section 4 (1). I pointed out that section 4 does not in any way affect or curtail freedom of speech to any degree greater than the existing common law offence of incitement which has existed for a very long period. Deputy Dr. Browne tried to create the impression that the section was in some way aimed at newspapers. This most certainly is not true and while like Deputy Dr. Browne I do not always agree with what newspapers say, I most certainly respect their right to say what they feel is correct. If they make an error, like Deputy Dr. Browne, I freely accept that they will freely publish a correction if the matter is brought to their attention. What Deputy Dr. Browne and some other Deputies seem to seek to imply now is that in some way newspapers should be in a better position than ordinary citizens in what they say or on what they comment and the way they comment on it. I cannot accept that. They have been subject to the ordinary law and they are still subject to it and when this Bill is passed they will not be in any weaker position than at the moment nor in any way worse a position vis-à-vis the rights or duties of ordinary citizens.

I was also dealing, when I reported progress, with the complaint of Deputy Fitzpatrick and others in regard to the amendments which I put down to subsections (2) and (3) of this section, which somewhat recast the two subsections. As I pointed out, I did this in deference to the objections, expressed by quite a number of Deputies opposite, to certain features of the subsections which they felt were objectionable. I complied with their wishes as it were——

Mr. T.J. Fitzpatrick

(Cavan): The Minister attempted to.

Mr. O'Malley

——in taking out these allegedly objectionable provisions and in particular taking out the provision whereby an absolute defence was given to somebody provided that he dissociated himself from the activities of his colleagues in whatever organisation it was. Now I find myself in the extraordinary position that I am being most heavily criticised for having made those very amendments which I made in response to criticisms opposite, in particular the criticism of Deputy Fitzpatrick which I quoted earlier, at column 87 of Volume 251 of the Official Report.

I think I am being quite fair when I say that those who would criticise a section for allegedly containing certain defects and when the section is amended to remove those alleged defects the same person would criticise the amended section because it does not contain those alleged defects that person is a hypocrite and only a hypocrite and I do not think that that could be called an unfair description.

Mr. T.J. Fitzpatrick

(Cavan): Would the Minister read my complete reference to section 4 on January 27th? I said that the entire section was objectionable and I would oppose it tooth and nail.

Mr. O'Malley

I read what the Deputy said about the subsection which I amended. That is the point I am making.

Mr. T.J. Fitzpatrick

(Cavan): The Minister read bits of it.

Mr. O'Malley

Deputy Fitzpatrick's contribution on this section, which he feels is the nub of the Bill and in his view the most objectionable part of it, suggested clearly that there is no need for this Bill and that we were going at the matter wrongly and so on. I should like to refer the House to the Official Report for Tuesday, 26th May, 1970, Volume 247, column 110, when Deputy Fitzpatrick was speaking on Second Stage of the Prisons Bill, 1970. I quote the Deputy:

We have very unsettled conditions, restless conditions: the nation is perturbed by crime of all descriptions, ranging from armed bank robberies resulting in the death of police officers, to what might be regarded as something less, in the form of sit-in protests, fish-in protests, protests of one sort or another. I do not intend to dwell on this at any length but I think the toleration of the taking over of public or private buildings, whether as sit-ins under the auspices of cultural or architectural activities or sit-ins in protest against lack of housing or fish-ins as a national protest is nothing short of tolerating anarchy and can lead only to total disrespect for the law and to the common commission of more serious acts of violence. It is bound to generate disrespect for the law and for public and private property. I hope that the Minister, in entering his office, will tackle these problems as they should be tackled because they have been overlooked and tolerated for too long.

Mr. T.J. Fitzpatrick

(Cavan): Will the Minister read me on the Second Stage of this Bill and any other public pronouncements I made? I have been perfectly consistent.

Mr. O'Malley

Deputy Fitzpatrick gave me some advice shortly after I became Minister for Justice in May, 1970. It is fair to say that in so far as that advice is concerned I have carried it out to the letter. Deputy Fitzpatrick comes in here and criticises the need for the Bill, the type of Bill and so on. That can fairly and squarely be described as hypocrisy of a kind rarely seen in this House.

These was criticism made by Deputy Cooney on the last occasion, as well as by a number of Deputies today, about the words "adequate explanation" which appear in the last line of subsection (3), as amended. It would be no harm if I referred to the history of where those words came from. I adverted to this previously on the debate on amendment No. 12.

Those words and the whole concept and drafting of the subsection are precisely the same as appeared in a Private Member's Bill promoted by Deputy Cosgrave and Deputy Fitzpatrick on behalf of Fine Gael some time ago in relation to the use of knives. The House will recall that the two sections which they put together and called a Bill were taken word for word from sections 22 and 23 of the Criminal Justice Bill. I am not comparing the merits or demerits of the situation to be dealt with by this Bill with the situation to be dealt with by the Criminal Justice Bill or the Private Member's Bill to which I have referred. I am saying that the legal concept is precisely the same, the drafting is the same and the principles involved are the same. If they are all right in the Criminal Justice Bill or in a Private Member's Bill, I fail to see how the same concept is not right in a Bill such as this.

In effect, what I have done in the amendment and the situation we now have in subsections (2) and (3) as amended, is that it is a matter in each case for the court to make up its mind as to whether a person is guilty. The court has complete and absolute discretion. Under the Bill as previously drafted it had not the same discretion but, as it is now, the court has a discretion in trying an offence under this section which it would not have if it were trying somebody for incitement under the Common Law, under the Petty Sessions Act or under the Act of 1861 in relation to aiders and abettors. The court now has discretion to take all the circumstances into account and to decide whether it is fair to convict a person. Under existing law it does not have that discretion. Therefore, I cannot follow how the argument can be put forward that people are in greater danger or that there is an extension of the existing law. As I pointed out previously, the contrary is the case. The defendant has greater safeguards under this section than he has at Common Law under an indictment for incitement, or an indictment for counselling, procuring, aiding and abetting.

Play was made of the use of the words "encourages or advocates". It was suggested by Deputy Cruise-O'Brien and others that the old words of "counselling and procuring" are preferable to the modern, perfectly clear words we use in the section. The case was made that the words "encourages or advocates" were not used in any other legislation in this country or in any other country. It was stated that it was undesirable to use modern clear terms and, apparently by default, the argument was that it is better to use old-fashioned terms, the meaning of which would not be clear to the man in the street.

As this point was made on Second Stage by Deputy Cruise-O'Brien, it might be no harm to compare what is the law relating to encouraging and advocating, inciting, aiding and abetting, counselling and procuring in other countries at the present moment. I have confined myself to looking at the law in democratic countries only as I see no point in going to the kind of places Deputy Cruise-O'Brien and other Deputies might put before us as models of how a country should be run.

Mr. Corish

The Minister should grow up and treat this matter in the proper way.

Mr. O'Malley

In the State of New York, section 2034 of the Penal Code provides that a person guilty of using or of procuring, encouraging or assisting another to use any force or violence upon or detaining any lands or other possessions of another, except in the cases and manner allowed by law, is guilty of a misdemeanour. In the American Law Institute's Model Penal Code a person is guilty of solicitation to commit a crime if, with the purpose of promoting or facilitating its commission, he commands, encourages or requests another person to engage in specific conduct which would constitute such a crime.

I might mention that the American Law Institute is composed of judges of the United States Supreme Court, judges of the States Supreme Courts, professors of law in the universities and legal writers of repute, in fact most of the leading jurists of America. They publish official restatements of the law in many volumes and also model codes, such as the Model Penal Code, which are designed to serve as models for the legislatures of individual American States, with a view to achieving some degree of uniformity in State law.

Mr. Desmond

And, hey presto, America is a land of peace and goodwill.

Mr. O'Malley

In France, under Article 60 of the French Penal Code, a person who counsels the commission of an offence, afterwards committed, is punishable as an accessory.

In Germany, Article 49 (a) of the German Penal Code provides that a person who attempts to instigate another to commit an act punishable as a felony shall be punished in accordance with the provisions applicable to the attempted felony.

Section 21 (2) of the Canadian Criminal Code provides that, where two or more persons form an intention in common to carry out an unlawful purpose and to assist one another therein, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Mr. Corish

What about South Africa?

Mr. Keating

All this is irrelevant. It is just wasting time.

Mr. O'Malley

That has also been the law in Britain for many years and this section in no way extends that law——

Mr. Cooney

Absolute nonsense. The Minister's own quotations condemn him.

Mr. O'Malley

——which would be open to him under the existing common law of this country.

Mr. Cooney

I oppose this section, amended or unamended. It is a most obnoxious section in a most obnoxious Bill.

Deputies

Hear, hear.

Mr. Cooney

It is distressing to come in here and hear a Minister of a democratically elected Government and a democratic Parliament advocating the acceptance of this piece of legislation as part of our statute law. It shows a regrettable lack of appreciation, in particular, of what I consider to be the cornerstone of democracy, the idea of the rule of law.

I am prepared to bet with the Minister that my interpretation is correct, in spite of advice he may have received. I do not know who is responsible for the tone of this Bill, its arrogance, its totalitarian tenor, but if the people giving the advice are the people responsible for its fascist hue I should not like to accept their advice. This Bill flies in the face of the principle that new crimes should not be put on the Statute Book unless there is a glaring, obvious, widespread social evil. I suggest that the disturbances that have taken place at which the Bill is aimed do not fall into that category. It is obnoxious as amended by the Minister just as much as it was before he amended it because as it is now amended, subsection (3) states that a person shall be deemed to have consented to the making of a statement if certain things make it appear to the court that he was a member of a group, "unless he gives an adequate explanation". Again, the Minister has not given any precedent for that and I do not think he will find one.

Mr. O'Malley

I gave two on the last occasion.

Mr. Cooney

I wish the Minister would let me finish. If a person is charged with an offence I read the section to mean that the prosecution states that a statement under subsection (1) has been made and that the person charged has consented to that statement and thereby committed an offence. The prosecution then proves that that person consented to that statement by putting before the court certain circumstances, including the constitution and the rules of the group on whose behalf the statement was made and the extent of the defendant's participation in the group—informer's evidence. The court can then find that there was consent to the making of the statement and can say to the defendant: "Having heard that you are a member of the group and having heard what their constitution consists of and having heard that a statement was made under subsection (1) on behalf of the group, I will convict you unless you have an adequate explanation."

Here is a novel legal principle. The defendant in that situation is faced with a tribunal which, having heard evidence from members of the Garda, has then to decide to convict the defendant on its subjective dealing with whatever explanation the defendant puts forward. I submit to the Minister that it is bad law, quite contrary to all principles of our legal system, that there should be a statute under which a person must say: "If I do this or if I do not do that I will be convicted." That test must be applied because the person must ask himself: "Will the explanation I give be regarded as adequate?" It is quite wrong that the adequacy of the explanation should be exclusively within the decision of the presiding judge.

I referred the last day to a school of jurisprudence which deals with the sources of law, with the influence which judicial decisions has as a source of law, and I pointed out that that factor can be affected by subjective feelings of the presiding judge. That school of jurisprudence is known jocosely as the digestive school. That may be funny in a lecture room but in a court of the land it is not a bit funny for the defendant, the adequacy of whose explanation may depend on the humour of the person on the bench, whose humour, in turn, may be determined by the state of his digestion. That is the type of law the Minister is asking us to put on the Statute Book. I described it as abnoxious because it is repressive, fascist, totalitarian and this is the most abnoxious section of all.

Mr. Keating

I do not have legal training, unlike the Minister and the last speaker and, therefore, I am not capable of entering legal arguments in any detail. However, one can have valid opinions on this Bill without a legal training because it is perfectly obvious, even on a casual perusal, that the Minister's objective is not legal at all but political and not simply generally political but party political. In other words, what is happening is that the legal profession, of which the Minister is a member as well as being a Member of this House, is being prostituted for Fianna Fáil Party political purpose of the most degraded sort; and public servants who are in the Department of Justice and who are paid for by all the public are being prostituted in the same scandalous. way.

When a party starts to rot the rotting is all of a piece. The rotting expresses itself in everything they do. We have seen that rotting going on in public for the last two years. In most species of living things decay takes place after death; in the Fianna Fáil party putrefaction is taking place before death, but the smell is what one expects from putrefaction and the smell of this Bill is an offence. Surely even the members of the Fianna Fáil Party who retain some honour, some sense of the rule of law, some sense of the republican vitality and determination that gave their party reality four decades ago——

Mr. Meaney

I see in the paper that you are opposing your own Leader——

Mr. Keating

The interesting interjection indicates the level of political thought of the Deputy who, when faced with something that is a profound scandal to himself, which ought to give him sleepless nights when he has to trot up the steps to rubber stamp it in a servile way, is reduced to a trivial interjection to try to alter the subject completely. It is an obvious and simple tactic to try to change the subject. As far as I am concerned, it is simply a confession of bankruptcy by the people sitting on those benches——

An Leas-Cheann Comhairle

Would the Deputy come back to the section as amended?

Mr. Keating

I was commenting on the obvious moral difficulty that this Bill must present even to the honest members of Fianna Fáil as indicated by the level of the interjections. This, of course, is a prostitution of Parliament, a prostitution of a political party, a prostitution of the law, and a prostitution of the public service for the sake of trying to do damage to a small group of people, principally to do damage to the Sinn Féin Party and the Dublin Housing Action Committee.

Let us look at the central idea that is enshrined in section 4, even in section 4 as amended. The central idea is that, if somebody in an organisation to which one belongs says something which would be contrary to this law if it were passed, all of the members of that organisation can be held responsible at law unless they specifically repudiate his statement. That is fine. Let us see how this new provision, this prostitution of law, would look if it were applied in a slightly different area. Let us say we are not applying it to the matter of people trying to get protection from the elements, trying to provide their families with a roof and enough warmth, not to have children sick. Let us say that this principle of guilt by the failure to repudiate were to apply to a conspiracy to import arms into the country.

An Leas-Cheann Comhairle

Let us not get away from the amendment.

Mr. Desmond

It is a very appropriate analogy.

Mr. Keating

I am arguing that if the basic idea in section 4 is valid in this Bill, it should be valid for every piece of legislation, and by taking examples from other areas of legislation I am seeking to establish that the basic idea in section 4 is not only, as the last speaker said, Fascist, jackboot, authoritarian, but it is also party political because it is also using the might and the dignity of the law to crack a very small nut in a vindictive way. However, if this were to be extended, if the principle operated for other kinds of law, then all the members of the party in government who are going to do their servile, rubber-stamp thing when the moment comes and toddle up the steps and validate it, would themselves all be guilty of what members of their own party may have done if they did it in regard to arms importation, in regard to various other illegal activities.

Though I am not a lawyer, I think the natural sense of what is honourable and just to do is in the possession of everyone. If the principle is valid, if people act to provide themselves and their families with shelter, then it is also valid across the whole spectrum of legislation. You cannot pick out this sort of guilt by association because you are goaded by the Dublin Housing Action Committee. You cannot make special bits of law to suit this city this year or last year in regard to one little organisation. What is sauce for the goose is sauce for the gander.

Mr. Desmond

I believe next month they will deal with Women's Lib. Poor old Mary Kenny will be for the high jump.

Mr. Keating

The members of the Government Party have so disgraced themselves by rubber-stamp voting that we are past the stage where any appeal to their honour or their conscience or their sense of Irish history or their sense of the dignity of the legal profession is worth a damn. However, there are some members of the party to whom one might conceivably appeal. If those people who are generally referred to as dissidents, who uphold republican principles, wish to uphold the standard of law which they themselves may dearly need, then rather than putting a halter around their own necks they will be showing a little wit when the vote comes if they vote with the Labour Party and the Fine Gael Party. If they want an issue to tumble a putrefying government, then this is a moral issue on which it is well worth doing it.

This is a law which is aimed at coercing people into becoming turncoats. However fast one runs away from republicanism and from the traditions of the country, one ought at least to remember a little and one ought to have enough insight into what motivates Irish people to know that if you try to compel a man by law to renounce what has been said by another member of the organisation to which he belongs, if you try to compel him to turn his coat by law, then even if he disagrees with the spokesman of that party he will feel in honour bound not to repudiate what has been said.

This is legislation for disruption. It is legislation to try to use the dignity of the law and the dignity of Parliament on a tiny, trivial subject. There is no need for any other legislation, neither section 4 nor the Bill as a whole. Things could be perfectly simply solved by providing the accommodation that the protesters need. They do not enter for fun. They do not enter for kicks; they enter out of need. The way to prevent such a situation is to provide accommodation. The solution is to solve the social problem but not, in the process, to degrade the law and to make the crushing of a small organisation the preoccupation of this Parliament.

All our experience is that the passing of this legislation will have the effect opposite to that which seems to be intended. I say "seems to" because, of course, it is possible that the engendering of conflict and of social chaos is at least partially the motive in the introduction of law like this for the reason that I have said: it will force people to do the opposite to what it seems to want to make them do. If you say: "You must repudiate the spokesman of an organisation with which you feel you can identify and in which you feel pride" and if you try by law to compel that repudiation you will have the opposite effect. It is therefore not just all the things that Deputy Cooney said it was—fascist, jackboot—it is also trivial, it is party political, it is a degradation of Parliament. As well as that, as we have come to expect in recent years, it is stupid in the sense that it will have the effect opposite to the one attempted.

Therefore, from every conceivable point of view it is a pitiful waste of parliamentary time to introduce this Bill. It is a scandal that we should have to fight against it, to hurl back the thoroughly base reasons which motivated its introduction. We have no option but to make this fight not because the Bill itself matters a damn but because the principles, the degradation, that the Government are bringing into Parliament are so important.

This country would be better off it the whole thing were to be scrapped, not simply amended section by section. Sometimes it is strong to admit a mistake. Sometimes it is strong to appear weak. This is a moment when a little humility, a little weakness on the part of the Government would be seen by everyone to be strength—the courage to admit a mistake, the courage to admit an action out of vindictiveness at a time of anger. One hopes that the vindictiveness has now passed, that the anger has passed, that with cooler thoughts after the feelings of vindictiveness, people realise, as indeed the public servants must realise, and as many people in the Fianna Fáil Party must realise what a shameful thing this is.

It would be no disgrace now to drop the whole thing. Fianna Fáil members may not want at this critical moment in the affairs of their party a public defeat on a Bill but they do have the power to go privately, if they wish, and compel its withdrawal. It seems to me that particularly those who had the courage to rebel once or twice on recent issues, notably on the issue of the dole, have an even greater moral responsibility to do that now. Nobody will require them to do it in public. Nobody will require confrontation. They can do this quietly. Indeed, if they are astute they will realise that this involves their own future as well as the future of the Dublin Housing Action Committee and the Sinn Féin organisations. They would be wise were it pushed to a vote to side with the Opposition and pull down the Government on this but in fact it is not necessary to do so should they go quietly and compel the withdrawal of the entire Bill.

Mr. T.J. Fitzpatrick

(Cavan): The Minister when he last spoke made something in the nature of a Second Reading Speech. He made reference to statements made by me on the Prisons Bill and on the Second Reading of this Bill.

In so far as I made any reference to illegal activities on the Prisons Bill I was merely restating the policy of this Party as it is well known, the policy of upholding the rule of law whether in Government or in Opposition and I was appealing to the Minister and to his Government to encourage people to uphold the rule of law by word and by example particularly.

I regret that the Minister has seen fit to introduce section 4 of this Bill. I believe that if the Governments over the last years had been running this country in a democratic manner and had been listening to lawful protests this Bill would not be necessary nor any part of it. We had the extraordinary performance in regard to the Hume Street houses. The Government refused to listen to peaceful protest, to editorial comment, to appeals in this House, but when the people concerned adopted what the Government regarded as illegal methods then the Government caved in; they had second thoughts and they yielded just as they have yielded on several occasions in the past couple of years.

That is the way they have been running this country over the years and that is what has the Government party in the mess they are in at present and that is what has them introducing this Bill to try to convince the people that they are the great upholders of law and order when in fact they are letting the country slip and slide anyway it likes.

On the Second Reading of this Bill I made my position and the position of this party perfectly clear. I said at column 85 of Volume 251, No. 1, of the Official Report:

So far as the general policy of the Bill is concerned, I and this party believe in the rights of individuals, not only in the rights of landlords, but in the rights of the ordinary man who occupies a house or land whether he occupies it as owner or as tenant, but this Bill will need a lot of thought and consideration before this House could pass it. Certain portions of it seem to me dangerous and quite unnecessary.

I then went on to the part of the Bill which we are dealing with now, section 4, and I stated at column 87:

I say that section 4 is an unnecessary and dangerous section and I intend to oppose it in toto on Committee Stage.

There is nothing inconsistent about that. There is nothing inconsistent about my attitude to this Bill on the Second Stage and my attitude here today. I am doing what I said I would do on the 27th January last. I am opposing section 4 of this Bill. I think it is quite unnecessary and dangerous.

The Minister thought fit to refer to my remarks on 27th January last or at least to some of them. He would have been better employed if he had dealt, as we are now in Committee, with some of the questions which I put to him on the Second Stage in a general way to give him an opportunity of considering them in relation to section 4 which we are now dealing with as amended. On that occasion I pointed out that there was no definition in this Bill of a group of persons. I said at column 86:

What is a group of persons? Where is the definition of "a group of persons" in this Bill? It would be very difficult to define a group. Are they to be associated under some set of rules, under a constitution? Are they to be incorporated or unincorporated? Are they to be some people who meet socially?

I posed those questions to the Minister and the Committee Stage of a Bill is the Stage on which questions like that are answered and not an occasion on which a general discussion takes place.

I repeat those queries to the Minister now. I ask him when he next speaks to define a "group" and to say how he thinks the courts will define it, or how he thinks the courts should define it, and what guidance he intends to give the courts. There are many groups of people in this country. There are social groups; there are political groups; there are athletic groups; there are numerous other groups. How many people constitute a group?

This is a loosely drawn section, a bad section. The Minister says he is using the word "encourage" because he thinks it is an ordinary word that is helpful and easy to understand. I think there is nothing more dangerous than the use of ordinary words in statutes, and particularly in criminal statutes. The Minister or his predecessor in one of the Licensing Acts in 1960 or 1962 used the words "special event". A district justice down the country applied one interpretation to the words "special event", the same interpretation as was applied by the Minister's Department and the Attorney General and cattle marts all over the country were given licences. A High Court judge applied a different interpretation from that of the Minister and the district justice, and three Supreme Court judges upheld the High Court judge although the Minister and the Attorney General were represented in the High Court and the Supreme Court to say they were quite satisfied with the interpretation given by the district justice. Those were ordinary words but they were eventually thrashed out in the Supreme Court by reference to dictionaries.

The liberty of an individual should not depend on a dictionary definition of a word. When we are passing legislation here to deprive people of their liberty and to create criminal offences we should define the words we are using. In relation to this section I invite the Minister to define the word "group". The next word I should like him to define in relation to this section is the word "encourage". That is another vague word. It is defined in some dictionaries as "to hearten, to cheer, to inspirit, to make bold, urge, further or promote". Those are gloriously vague words.

If the editor of a newspaper, in relation to what the Minister would call forcible entry or forcible possession, were to write that while the actions of these people could not be condoned it was easy to understand them in view of the shocking housing shortage, surely that would be heartening these people, it would be cheering them, it would be giving them some spirit, and he could be guilty of an offence. I will be accused of being political now but if, as a result of the editorial in today's Irish Press slamming the Minister for Education for his new proposals about the management of the secondary schools, the editor were held to be encouraging people to go in and squat in these schools to make sure that they were not managed in that way, would he be hauled before the courts and be found guilty of an offence?

We are dealing here with a piece of criminal legislation which will be applied, if it is applied at all, in an emotional atmosphere and in emotional circumstances. To date, the first case in which forcible entry took place— and I want to say that I do not agree with forcible entry; I have made that clear at all times—was in the circumstance of a housing shortage when a man and his family found themselves without a house and considered that they were entitled to go and get themselves a house. That is something about which people could feel very strongly and might innocently speak very strongly about and, as a result, they might be held to be giving good cheer to the people in the house or to be heartening them, or inspiriting them, or encouraging them, and they would be guilty of an offence.

The next case of forcible entry was in completely different social strata. This was a question of squatting in the Hume Street houses to vindicate a belief or a point of view that these houses should be preserved for posterity, a view which after years the Government accepted and upheld. Is it any wonder that people would feel strongly about that, and rightly so, and speak strongly about it? Yet they will be charged with an offence. The Minister talks about mens re which is thrown in as an explanation for everything. In every legal discussion when a man is cornered he turns to the defence of mens re.

Under this section as it is now drafted, I say these people could be guilty of an offence if they said that all methods should be used to preserve those houses for posterity and that once they were pulled down they could never be rebuilt, a perfectly logical argument to put forward. Once you pull down a house and build some modern monstrosity in its place, the house is gone. Supposing somebody made that cogent argument in a newspaper or on a platform, surely under the section he would be guilty of an offence.

The other field in which we had these protests is another very emotional field: the claim to the right of Irish people to fish Irish waters and to catch fish without having to get the permission of foreign landlords. That is a field about which Irish people have felt very strongly all down the years. People might think, do think and have thought in the past, that the people who exercised those rights even by force were doing right. If they sympathised with them, under this section they could be guilty of an offence.

This section is totally unnecessary for the implementation of reasonable sections 2 and 3 of the Bill. A perfectly respectable organisation might like to conduct its business in private. There are such organisations, some of them absolutely respectable and some of them not so respectable, who believe in conducting their business in private. Supposing some member of that defined organisation goes out and makes a statement which is contrary to subsection (2) of subsection (4), in order to prove himself innocent a member of that organisation might have to produce the minutes of the organisation. Would the Minister like it if all the minutes of the National Executive of the Fianna Fáil Party over the past 12 months had to be hawked up and published and brought into court in order to show that so-and-so voted against what another member was saying? The Minister may say that that is absurd but that is the sort of absurdity he is legislating for and the sort of absurdity to which we are objecting.

On Second Stage I said that section 4 was totally unnecessary I considered it totally unnecessary when I first read it. It would be very difficult to enforce it even as it is. There is no reason why decent people should be dragged into court to exonerate themselves by going into the witness box because of an absurd piece of legislation like this. I believe that if this Bill were being drafted now it would not contain this section. The Minister put it in and published it several months ago and now feels that he is obliged to stand over it just as the Criminal Justice Bill was introduced by his predecessor and has now been put into cold storage indefinitely. He would be well advised to do the same with this. On several occasions in the past 12 months the Government have taken hasty action and have gone back on it.

Having spent the morning putting in some useful parliamentary work on an urgently-needed piece of social legislation, namely, the Redundancy Payments Bill, it is a most depressing experience to have to come along this afternoon and oppose this section of this Bill. One would have thought that amending legislation is designed to perform some social good or to remove a problem. I suggest to the House that by any criterion this section is unwarranted.

It is 30 or 40 years since the terms "Fascist" and "Gestapo" were fired across this House with such vehemence. I do not think that Deputies, particularly newly-elected Deputies such as Deputy Cooney, indulge in such phraseology lightly. Therefore, it behoves the Minister when such charges are made to be constrained in his reactions and to pay some attention to the sharp reaction which has come not only from Members of this House but from every authoritative representative of legal, social and political opinion. The Minister cannot produce a public figure of legal or social standing or with any judicial experience, or with any experience in the Garda Síochána, who will give him an iota of support for section 4.

Although I doubt if the Minister is renowned for his humility, he should accept that there is sharp repugnance towards section 4. I would draw the analogy of how his predecessor reacted. The Minister made great play of section 22 of the Criminal Justice Bill, 1967, and of the various meanderings of his predecessor in his attempt to get the Bill through the House. I should not like to see any Deputy reduced to a shivering mass as was the former Minister for Justice, Deputy Ó Moráin, when, with perspiration streaming down his face, he withdrew the Criminal Justice Bill at the Fianna Fáil Ard-Fheis some years ago. He was compelled to do this because of the reaction of the Fianna Fáil organisation. It must be stated in fairness to Deputy Ó Moráin that he withdrew the legislation.

However, the current Minister for Justice decided to resurrect part of it. May I suggest to any Fianna Fáil Deputy who goes into the Lobby in support of this section that he has soiled the term "republican" which he is supposed to represent.

When we discussed this matter on 26th May, the Minister expressed the view that there is nothing novel in what is proposed in this section. The Minister is more than stretching the imagination. This section is obnoxious and repulsive and it must be opposed completely. The Minister has gone on record as saying that there was fairly drastic drafting on his part. He has said that, having had a look at the Bill, he now wishes to ameliorate the position of the defendant. According to the Minister the defendant is now in a better position as a result of his amendment than he was under common law and the rights of the person are defined clearly. These are sweeping statements made by the Minister as judge and jury—as he will be under the Bill.

One should take the ten commandments of proof which the Minister is going to produce here. First, he envisages that in practice the provision of section 4 will operate in the following way. The Minister states that the prosecution will have to prove that the alleged statement was actually made. Will our hard-pressed gardaí be given new training in stenography? Will all the recruits at Templemore be given a crash course in shorthand so that they will be in a position to prove that the alleged statement was made? I would ask the Minister to elaborate on how this will develop.

Will a member of the Garda Síochána attend a protest meeting armed with tape recorders in order to be able to prove that the alleged statement was actually made? In future will the notes of newspaper reporters be used? The Minister has a peculiar love-hate relationship with newspapers in this country but he is careful not to go too far. It might be said that the first commandment is that the prosecution shall prove that the alleged statement was made. I see the ranks of the Special Branch swelling dramatically so that the Minister may carry on his vendetta against protest groups. These groups have assumed, in my opinion, an importance they do not really deserve all because the Minister has given it to them. He is so busy talking about groups that every impressionable adolescent must be more than anxious to join, if only to prove the Minister's point of view.

The Minister's second point is that it must be proved that the protest was made by or on behalf of a group of persons. Every Deputy who has spoken has pointed out the entirely subjective connotation of the term "group" in the section. What does, in fact, constitute a group? Is it one person, two persons or half a dozen persons on a platform, or is it any particular organisation? The Minister will assure us that it is up to the court to decide. The Attorney General, the State solicitors, the Garda superintendents, the Garda inspectors, the sergeants have a right to know what exactly is in the Minister's mind. There is no attempt at any definition of the word "group" in this section. The section is spurious. It is one which no self-respecting parliamentary draftsman would include in any legislation.

The third commandment says that the accused person may be one of a group on whose behalf a statement was made. Will there be physical personal observation by members of the Garda Síochána of every single protest group in the country? How will we have proof that the accused was one of the group? Will we have the South African technique whereby membership cards, minutes of proceedings and all the rest will be kept in Dublin Castle and then produced at the appropriate moment to show that someone was a member of a group on whose behalf a statement was made? The Minister must see a rich harvest here. He has been hooked on empty protest. He should get off the hook, recover his sense of balance and allow Parliament to proceed with more constructive legislation.

We have the phrase, introduced by the Minister out of concern for the accused, that the court, having looked at the circumstances of the case may regard proof of the defendant's membership of the group as proof of consent in the absence of any adequate explanation. This will be a paradise for the Attorney General or for anybody who prosecutes and the Minister will spend the rest of his life chasing around after State Solicitors. This is tendentious and questionable legislation.

We come then to the constitution and rules of the group. Most of these groups form on an ad hoc basis. They gather on a particular occasion. It is open to question whether many groups have rules and constitutions. But, if they have rules and constitutions, they will have to produce these. The Garda Síochána will sequester them and the members of the group will have to go before the court and produce their constitution and their rules. This is bureaucratically repressive. The Minister is making a laughing-stock of himself.

We come then to the extent to which the defendant participated in the activities of the group. He attended one meeting. Is he guilty or is he not? If he attends three out of seven meetings he will be adjudged guilty. The unfortunate accused will have no conception of what may be the interpretation of "participating". He may become involved by merely standing on the street, being rounded up and pushed into a Black Maria and brought down to the Bridewell. There were many repressive edicts in bygone centuries. The Minister has become newly converted to these.

The phrase "provided the court thinks it is reasonable to do so" is a very magnanimous contribution from the Minister. If the court thinks it reasonable that an individual participated to some extent in a particular group he will be judged to have committed a criminal offence. He may have made a comment. He may have smiled. He will get six months in clink. No self-respecting Minister for Justice should put such a provision on the Statute Book.

All these things having been established, the defendant is then informed that the prosecution has done enough, to quote the Minister, to establish a prima facie case and, in the absence of any adequate explanation, the court may feel constrained to infer that the defendant consented to the making of the statement. The Minister should spend a few weeks in the cattle marts talking to the farmers to find out what their interpretation is of common sense. This is legislation gone mad. It is utterly undemocratic. It is at variance with every democratic concept. The Minister seems determined to outdo his predecessor where the rights of citizens are concerned. The constitutionality of section 4 is in question.

I would urge the citizens of this country to test the constitutionality of this section because it is called into question by any criterion, whether one takes into account the defunct 1922 Constitution or any of the provisions of the 1937 Constitution. It calls into question the exercise of freedom of expression. It would not be the first time that the constitutionality of a whole piece of legislation was tested in the Supreme Court and the legislation thrown out.

The Minister has advanced a novel defence in regard to shifting the burden of evidence. He says an analogy is to be found in section 28 of the Larceny Act, 1960. The Minister is being absurd when he tries to draw an analogy between the physical possession of housebreaking tools and the public statements or verbal actions of an individual. Such an analogy does not hold water as far as any person in the country is concerned. Anybody in the legal world to whom I have shown the section was not impressed by it or by the Minister for having introduced it.

I suggest that if we require this piece of legislation at all—we do not need it at this point of time—public order or morality has in no way reached such a pitch of insecurity that would warrant section 4 and that therefore the Minister should withdraw it. One must challenge Fianna Fáil Deputies in this regard. I am shocked at the total manifestation of hypocrisy by Deputies such as Deputies Blaney, Brennan, Sherwin, Allen, O'Connor, Haughey, Timmons, Gibbons, just to mention a few of them. I do not think a single member of that group will support that section in conscience. They have gone around the corridors of the House saying so but of course they will walk into the Lobby this evening and support it because they are scared of a general election in which they might lose their seats. As far as the Minister is concerned, they have had a blank cheque to exempt them from such charges as incitement, encouragement, conspiracy. I draw the analogy between the Firearms Act and this. They are the people who wanted armed military incursions into Northern Ireland but there was no question of legislation being brought in to deal with the standard of hypocricy of this House.

I challenge Deputy Blaney if he is the much vaunted republican so vitally interested in civil rights in Northern Ireland at least to show some sense of perspective and to come in and oppose this legislation. Deputy Haughey hopes to have an each way bet on the position of Taoiseach but when it comes to the crunch he is prepared to swallow his principles and support this section about which privately he said that the Minister was daft to go ahead with it. He said the same outside the House. He could not say it inside because it would upset the show.

I find it depressing that a relatively new Minister should be so hard up in terms of precedents that he has to go right back, as Deputy Cruise-O'Brien pointed out, to 1861, and 1851 and that he has to rely on sections of Acts passed more than a century ago to apply to modern Ireland of 1971. In its outlook this section is simply what Deputy Cooney called it, fascist. I do not think any other word could more appropriately describe it.

I was amused at the dependence of the Minister on an analogy with New York. He lauded the courts of New York and their academic judicial advisory groups on their legislation. One may have a lesson to draw from this analogy with an area where the Minister finds the law so satisfactory, a city renowned for its brutal violence, where the whole fabric of the occupation of premises has broken down, where one is not safe to walk the streets in the evening. The Minister finds nothing strange in drawing an analogy between New York and the Republic of Ireland, a peaceful island off the coast of Europe. The only thing one can say is that he has here opened up a whole new vista of legal definitions. I do not think the implications of section 4 are fully appreciated by the Irish people and I think each newspaper should print that section in large type, surrounded by black rules, if it is passed.

Many representative citizens have opposed the section, none more strenuously than Father Sweetman, the Jesuit. It is appropriate that one should place on record his view of the Bill and of this section:

This particular Bill and this particular section make a criminal out of any individual in any group of persons who encourages or advocates entry unless that individual can prove ignorance or repudiate his colleagues. Surely this contravenes the right of a person to accept the majority decision of the society to which he belongs even if he does not agree with it. To force him by law to dissociate himself from the contents of the statement is clearly undemocratic.

I do not think he was extreme in that expression of opinion in regard to this Bill. He was referring to a Fianna Fáil cowboy and Indian type legislation— the goodies and the baddies, and we have it here under this legislation. My colleague, Mr. Donal Nevin, of the Irish Congress of Trade Unions, was absolutely correct when he said this Bill, with its overtones, leaves the Criminal Justice Bill far behind. Rev. Fr. Enda McDonagh, Professor of Modern Theology in Maynooth College, has said this Bill gave him a vision of society which he found impossible to take. He said the Government ought not to be tackling the symptoms, that is, the deprived, the weak, that they should be tackling the strong who are responsible, and that this Bill would protect the strong even further and would not alleviate the problems. I want to quote another eminently respectable public figure, Mr. Louis McRedmond. He has said that the Bill is crude, unjust, that it is bad law and that section 4 establishes the new concept of guilt by association and undermines the principle of a person being innocent until proven guilty.

These are sane, competent public commentators, whose comments the Minister will find it difficult to argue against. When one puts this legislation in perspective, one remembers that it is the Greater Dublin area which is the only area of the country where house squatting has been practised. This has largely arisen from the absence of Dublin Corporation, from the self-immolation of 45 councillors who declared themselves out of office. These councillors do not exist and have not existed for a number of years. It is quite miraculous that with the total absence of local representatives there has not been greater confusion in local authority housing in the Greater Dublin area. However, even with the absence of local councillors there are 50,000 tenants in Dublin Corporation houses. There are at least 5,000 or 6,000——

Acting Chairman (Sir Anthony Esmonde)

The Deputy is getting far away from the section.

Mr. Desmond

I am concluding on this point: out of a total of about 70,000 local authority dwellings in the Greater Dublin area there are about 120 which are illegally occupied, mostly by subtenants who stayed on in houses. I have no doubt that without this legislation the corporation could resolve the problem. Again in relation to section 4 I want to record our total opposition to the provision. If this Bill goes through, as far as we are concerned in the Labour Party, it is all the more reason why we should strive as a political party to achieve office in order to be able to repeal this legislation. We believe this is an elementary commitment which we, as a responsible political party, should make to the people, on whom this repressive legislation is being foisted. It is legislation which is a disgrace to the republican traditions of this House, and it is an everlasting disgrace to the Fianna Fáil Party who have deteriorated to such a level as even to contemplate its introduction.

Dr. Cruise-O'Brien

In his last statement just now the Minister for Justice said, and I quote:

Section 4 does not in any way affect or curtail freedom of speech to any degree greater than the existing common law offence of incitement which has existed for a very long period.

Let us assume that the Minister actually means that, that he is sincere in saying it. Even so, the fact that the Minister has said this here in a debate has, of course, no force in law; it is just an obiter dictum made by a Minister here, and what is important is the actual wording of the Bill which we are asked to pass. That wording as we have it now does not bear out what he says, because the words “encourages or advocates” in the section are different from the word “incites”. It has been pointed out that the word “incitement” which is of venerable usage in law, has acquired meanings, and “meanings” means restrictive meanings, not just what anyone thinks it ought to mean. These words here have acquired no such technical penumbra and are not so limited. Therefore, if the Minister is sincere about not wanting to curtail or affect freedom of speech, if he means this provision is not curtailing freedom of speech any more than the common law offence of incitement, he can very rapidly make that law, first of all, by amending his own section to read: “a person who incites to the commission of an offence”. If that is what it means why can he not say so?

The only reason we have been given for the present wording is that the Minister objects to these archaic legal terms. He does not object to the Petty Sessions Act of 1861 or whatever it was. He does not object to ancient statutes in themselves, but for some reason he objects to their wording. According to the only reason we have been given here, which is not necessarily the correct reason, his sole concern in all this is the modernisation of our usage so that the public may plainly understand from the words used exactly what is meant.

If we accept that, again assuming that the Minister is sincere in not wanting to curtail freedom of speech, why could we not have a definition that the words "encourages or advocates" in section 4 (1) mean what in common law the word "incites" means and no more? The Minister is represented here at the moment. I should like to put those two alternative suggestions to him and to ask for a reply on them because this whole section really hinges on the words "encourages or advocates" in section 4 (1).

It is not enough for the Minister to give us a personal assurance that he does not want to affect or curtail freedom of speech because it is clear that he is, in some way, affecting freedom of speech and presumably curtailing it by the language he is using. The fact is that the older technical vocabulary which he cites: "inciting, aiding and abetting, counselling or procuring the commission of a crime" has acquired, through court decisions, a certain set of meanings. "Encourages or advocates", the two together, are distinctly wider. One might argue that "advocating" the commission of an offence here is very closely the same as "inciting" it. That could reasonably be argued but the word "encouraging" is very much wider indeed. "Inciting" as it is ordinarily used has the fairly precise meaning of wanting someone to commit an offence and working on him in such a way that he does. I do not think people are all that often charged nowadays for incitement except where the case is very clear and very flagrant. I think courts and law enforcement officers have, on the whole, tended to respect the ordinary freedom of comment to a great extent. This particular limitation casts a doubt of unknown proportions on freedom of comment.

The Minister in the statements he made just now said that Deputy Dr. Browne tried to give an impression that the section was in some way aimed at newspapers and that this most certainly is not true. We know that the ways in which views are most often encouraged and most effectively encouraged or advocated these days are through the media and still in particular through the Press so that any warning that the present limits of choice on "encouraging or advocating" are to be restricted must affect the Press. We must also assume that the Minister had this in mind because we know the kind of groups he has been dealing with have been "encouraging or advocating" what would become an offence under this section and he certainly has in mind trimming their freedom of speech.

He also revealed in earlier remarks of his own that he did have newspapers in mind, that he was aiming at them. He named them when he was talking about the general concept of "incitement" which he makes identical, though I think neither ordinary usage nor the law would, with his "encourages or advocates." He said

One may under our law incite persons generally as in a newspaper article and the persons incited need not be known.

I am quoting from the Official Report, Volume 254, No. 2, of 26th May, 1971. He said at column 229:

I am bringing it in in order that we will have a modern statute which will set out clearly in terms which cannot confuse anybody what precisely the position is and what can or cannot be done.

Notice here the confusion which the Minister is introducing by using words which have a wide span of meaning in ordinary speech instead of terms which have precise legal definitions built up in case law. He is trying to put over to the public the idea that he is simplifying things and making things easy for them. It is quite the other way around. The protections of people's liberties lie in the more precise definitions and the Minister, who makes so much display on occasions of his legal learning, should not be allowed to get away with this distinctly demagogic argument here. He goes on:

In other words the rights of a person are clearly defined——

Where?

——and he is put on clear notice that if he infringes certain things he is guilty of an offence.

He is not put on clear notice of anything because we do not know how these words "encourages or advocates," particularly "encourages", are to be interpreted. We all know that judges construe things in different manners and in different times and loose and vague language of this kind is a danger to public liberty particularly in times of excitement. The Minister goes on:

There is the horrified suggestion that newspapers, for example, might well find themselves in difficulty with the law under this section if they were to advocate the commission of a criminal offence.

That phrase "horrified suggestion" is designed to cast contempt on any concern for the liberty of the Press or further encroachment and intrusion on the liberty of the Press. He continues:

There is the implication in this horrified suggestion that this is something new, but it most certainly is not new. Newspapers are not any more immune from the law of the land than any other individual or company——

Nobody, of course, has claimed that they are. The point is that this will be an extension of the law of the land. The Parliament presumably would have the recognised right under law and subject to the Constitution to introduce very serious further intrusions on the liberty of the Press. The point is whether in terms of public policy this is warranted or whether there is any justification for it.

Notice the contradiction between this and what he has said just now—that section 4 does not in any way affect or curtail freedom of speech to any degree greater than the existing common law offence of incitement and his denial of the idea that the section was in some way aimed at the newspapers.

How can the Minister seriously maintain that this section is not in some way aimed at the newspapers? Is a newspaper which writes an article encouraging or advocating the commission of an offence not to be proceeded against and if they are to be proceeded against what is the meaning of saying that the law is not aimed at the newspapers? Of course, it is aimed at newspapers. Who does the Minister think he is fooling?

I should like to come back to the point of either amendment of the section to substitute "incites" for "encourages or advocates" or a clarification by definition or failing that let the Minister give us some reason other than his alleged concern for the modernisation of our vocabulary why he is using the words "encourages or advocates" instead of "incites" here and why he will not limit it by definition which seems to me to cover his quaint concern for our vocabulary or style.

All of us on this side of the House had more than very serious doubts and were strongly opposed to this section and this whole Bill before we heard the Minister but with every statement the Minister has made here, with every argument he has put forward, with every stylistic nuance that he has introduced, our concern has deepened. This section in particular can become, in certain conditions, a very grave and real threat to freedom of expression and freedom of comment here.

Dr. Browne

I find the most objectionable part of this section of the Bill is the deliberate confusion of the general motivation behind the formation of organisations or groups or conglomerations of people who get together for any purpose, the confusion of the idea that those of us in all parties over the years who have concerned ourselves with social matters of one kind or another, in varying degrees and to varying extents, should be lumped in together or related in our motivations to various criminal activities, conspiracies to murder, to rob or to steal and other activities which obviously have completely different objectives.

What does the Minister gain by this section? He talks about the subversive groups which he is aiming at, but is it not a fact that he will not touch the subversive groups or the quasi-political groups he talks about as being the target of this section? None of us in any of the parties who become involved in this sort of activity, or protest, or unemployment movement, or anti-emigration movement, or fish-in or family planning, the latest one, or women's lib, or whatever it may be, need be concerned and he is simply concerned to deal with these quasi-political groups or subversive activities. Has he not watched the developments in every country in the world over the years and throughout history, including the present unfortunate situation in the North of Ireland?

The last people to be affected by this section will be his allegedly subversive groups or quasi-political groups. The people whose liberties he will restrict and delimit are the democrats, the people who believe in democratic organisations of one kind or another. The people at whom he purports to aim this legislation will simply turn their attentions elsewhere. They will take action in other ways. There are so many precedents nowadays for the protest, the spectacular protest, that they will simply move away from squatting. There are many alternatives open to them at present, hi-jacking something or other, or kidnapping, or assassination, or dropping a bomb somewhere, or setting fire to some place. There are dozens of alternatives open to the subversive groups or the quasi-political groups on whom he says he is wasting the time of this House.

There are many other important matters on which this House could spend its time but instead of that we are debating this completely antidemocratic piece of legislation to which we in the Labour Party are violently opposed because it reduces a very important element in our lives here in Ireland. Whatever the many and grave defects there are in our society—and God knows I have probably listed them on more occasions than anybody else—we have had over the years the right of dissent, of stating a case in strong terms for or against a failing or defect in our society, of supporting those who share our views and criticising those who do not.

In this section the Minister is making inroads on this basic freedom, the basic right of the individual to dissent from other groups, from other political groups or from other persons within the group to which he wants to belong. The essential dynamic of the whole democratic process is the dynamic of debate. We are told that the Minister is concerned only with these people and that in order to deal with them we must have this section. There is no doubt in the world that this section will not deal with them. It will not inhibit their activities in the slightest but all the rest of us will have to suffer under this particular objectionable section which puts us all in fear of having to prove that the people with whom we work have views that we do not share and are ashamed of and dissent from.

We apologise for the fact that they hold them; we disown them; we disclaim them; we exculpate ourselves from any association with them or with anything they may have said: the whole demeaning, humiliating process of undermining the association between people who unite together in the broadest terms because they are like-minded and because they want to achieve certain objectives even though there may be differences on detail here and there. This broad principle is being assaulted in the most blatant way in this section.

Deputy Desmond showed that squatting is a negligible problem. It is a relatively unimportant problem in our society at present. None of us is justifying squatting at all in publicly owned houses. I personally disapprove of it and I have always said I do. I go even further. I disapproved of the principle of parents and children squatting simply because of the undesirable effects on both mother and child or children in such circumstances. I still believe that as a form of protest it is made only because of the Government's failure to provide houses for people. This is not the section or the evil for which the Bill is being introduced. The Bill is introduced in order to deal with a process of protests against a deficiency in the Government's activities. Section 4 is not the answer. Another 12,000 houses in Dublin is the answer. It is a fact that the Government are only not providing the houses but in order to attempt to conceal the magnitude of their failure they are attempting to reduce the effectiveness of any protest being made by the people who want to highlight their failure in regard to this very important problem.

I am astonished at the looseness of the phraseology of this amended section. I do not understand how a lawyer such as the Minister could defend the provisions of this section. The Minister has made no attempt to deal with Deputies' queries about the interpretation of the wording of this section. Under this section a district justice, in order to decide on the merits of a case, would have to consider the Constitution and the rules and the extent to which the defendant had participated in the activities of the group. It is outrageous to suggest that anybody could make sense of this clause and then we go on to talk about what is reasonable or unreasonable. "The extent to which the defendant had participated in the activities of the group"—how often did he attend their meetings? Had he paid the party or group subscription? Did he have a party card? Is he up to date? To what extent did he agree or disagree or dissent or take no part in the debate or discussion at which the decision was arrived at for which he now finds himself in court? Clearly the minutes of the meetings of every group, every organisation can be subjected to the scrutiny of the courts as the case goes from one court to another right up to the Supreme Court and then eventually for consideration of the constitutionality of the Bill. In what way does the person support the group? There is the question of the interpretation of the degree of support, whether a person simply attended a meeting, whether he applauded or did not applaud, whether he made a speech, whether he provided the flat in which they held their meetings or whether he simply gave moral support.

The Minister said that this was not aimed at the newspapers as I had suggested. I reassert that it is aimed at the newspapers and I would add that it is also aimed at television and radio coverage and the coverage of many journals which now take a much greater interest in social issues of one kind or another and who could, by advocating change, encourage decisions by individuals to take action of this kind. Why in section 4 (3) are the following words used: "may regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the part of the defendant in the absence of any adequate explanation by him"? Surely the Minister must be ashamed at the appalling woolliness of that provision and the near impossibility of its interpretation in anything like objective terms? The words usually used—I do not particularly want them used here— are "shall provide proof" or "shall regard proof" or "will regard proof". Why "may regard proof"? Then we have this completely wide and double ended word "adequate"—"adequate explanation". I wonder, as I said earlier on, if the Minister was impressed by the seriousness of the opposition to this section and has amended it in this way in order to make it completely unworkable. Would the Minister not reconsider the whole section and on Report Stage have the courage to accept that there are genuine protests, which are not simply obstructionist protests?

We are concerned that a very serious component of the very delicate fabric of the democratic process is under assault here, is under threat and that the people the Minister is going to penalise are those who share our belief in the democratic process. The provisions of the section will not have the slightest effect on those for whom the Minister said he designed this disreputable piece of legislation—his quasi-political groups and his subversive groups.

It must be obvious that the idea of squatting, of taking possession as a form of protest, has a distinguished lineage. I suppose the most honourable example of all can be seen in the front hall of Leinster House—the Proclamation, with the very distinguished names attached. The decision to equate with criminality the taking of forcible possession as a form of protest against an unjust government is just as ignoble and as contemptible as the precedent which the Minister did not mention—the precedent which was used against the men who signed the Proclamation.

Admittedly, the Minister is not going to shoot us for squatting or taking possession but it is dishonourable of him to relate this use of the different kinds of protest open to us—the boycott, the picket, strikes or squatting as a form of social protest—with some form of criminality. I never thought that I should find myself having to protest in this House against the introduction of such legislation. I would ask the Minister to withdraw the section.

Mr. J. Lenehan

I am not sure to what extent I agree with the section but as a man with some common sense I shall vote for it. However, the section can be rethought and restructured and there is no reason why a method cannot be found to solve the problems that have been raised by Deputies who have spoken.

A Bill such as this should not be necessary. Since the Act of Union we have managed without legislation of this kind and people have succeeded in retaining their property in the years since then. However, I could not stand idly by and accept that someone can walk into another man's property and take it over. If people can walk into a Georgian house today they can do the same tomorrow and take possession of a man's farm or public house. We must have some common sense in this matter.

How many of those who have been preaching here against this section would allow people to take over their property? All the nonsense that has been spoken here does not cut any ice with me. Although the Bill is not all I should like it to be, it is aimed at protecting private and public property. Its purpose is to give property owners title to their property and not to put them into the unhappy position whereby their property can be taken over by anyone who squats in it. It is easy for an Opposition party to oppose any proposal by the Government. The fact that I resigned from Fianna Fáil does not alter my mind on a matter such as this.

There is one major problem involved in section 4, namely, that football clubs and such groups could be in trouble. The Minister should look into this matter and on Report Stage let us know what changes he has made. So far as the two major parties are concerned, I think there would be general agreement on this point. I do not think either Fine Gael or Fianna Fáil want to see the situation whereby property can be taken over arbitrarily, as would be the case if we accepted some of the proposals that have been put before us this evening. I doubt if one Deputy who has spoken would go home to his wife and admit that he said what he did, because she would throw him out the door. I gave the tinkers good advice. I told them to go into the urban areas and into Achill and Valentia. If they go into Achill they will be in my constituency and I will be able to get their votes. That would be important. I hope, however, that they will not go into Achill and take over anybody's property. If 500 or 600 of them go into Achill there will be plenty of tourists there this year. If they go into Valentia they will have a good Blaney bridge, not a Bailey bridge, but I would not like them to take over other people's property there.

If Deputies voted conscientiously on this measure I doubt if they could really oppose it. A Bill like this has not become necessary until now. I suppose it is difficult for young people to accept that such a Bill is necessary. I think it is necessary judging by some of the things I have seen in this city and around the country, though not in my own constituency. However, I would ask the Minister to have another look at the wording of section 4.

Some speaker here said that if Fianna Fáil had built enough houses this kind of problem would not arise. Who the hell built houses except Fianna Fáil? Every house from Ballina to Blacksod was built by Fianna Fáil. If there are not enough houses in other parts of the country that is because the unfortunate people have very poor types of representation. The Telefís Éireann "Seven Days" team admitted that we had the best houses in Ireland in the west. They did not grow like mushrooms. Every damn house in it was built since 1933. Let no one have any doubt about that.

Just because I had a row with my party is no reason why I should not be honest and tell the truth. I am not sure that I agree entirely with section 4 but let no one be in any doubt as to how I will vote; I will vote with the Government.

Dr. O'Donovan

I have two objections to the section, as amended. Even now there is in the section the proposition that a man is guilty until he proves his innocence; it is up to the defendant to prove that he did not commit a crime. This is contradictory to the long tradition of law in this country. Even Bloody Balfour, of unhappy memory, did not impose upon defendants this kind of thing. The Coercion Acts never required a man to prove his innocence.

I want to draw attention to a specific deficiency in the section. I hope the Parliamentary Secretary will make a note of the point because it is of considerable importance.

Mr. Geoghegan

I took off my glasses in case I might not hear the Deputy properly.

Dr. O'Donovan

The first subsection says that a person who encourages or advocates the commission of an offence shall be guilty of an offence. The new subsection says "where a statement in contravention of subsection (1) is made". How does one make a statement in contravention of subsection (1)? I have here the Concise Oxford Dictionary and it says "in contravention of" means violating. We have then a person making a statement violating subsection (1). How does one make a statement violating subsection (1)? Obviously one does so by discouraging somebody from doing something, not by encouraging. I believe the use of the word is all wrong. I believe the section is not properly drafted. It is as simple as that. "In contravention of" are specific words and, "in contravention of a specific subsection", means one is violating that subsection. The subsection says "a person who encourages or advocates the commission of an offence". How does one violate that subsection? One violates it by advocating the opposite or by stating something that is the opposite of it. This is what is now in the Bill.

I am not a lawyer and neither is the Parliamentary Secretary but there is the tag that where ignorance is bliss it is folly to be wise. It is no harm once in a while to bring in a person who is not legally minded but who has regard to the ordinary meaning of words. "Contravention" means "in violation of". Of course, the people who drafted this had other things in their minds than what I have in mind at the moment. I think of it by way of the ordinary meaning of words and that is the way the courts would construe it, and in that context this is not correct in any sense of the word.

It has become popular, and proper, to take the State to the Supreme Court on constitutional issues, and I think that if this goes to the Supreme Court there is no doubt as to how they will react. There is the principle that everybody is innocent until proved guilty and I think all that I have been speaking about is to tie up in a mass of verbiage the suggestion that people can be proved guilty by association, that they can be proved guilty unless they prove themselves innocent.

The last speaker said he would vote in favour of the Bill, apparently to rehabilitate himself with the party, but he did not speak too favourably of the Bill. This is not unusual nowadays. People vote for the party though they do not speak favourably of the party. That has become too obvious to be labouring it here. I am sorry the Minister is not here because I wanted him to answer the points I have made. A Deputy pointed out earlier that some difficulties of this sort were drawn to the Minister's attention but the Minister did not answer. Of course, the more errors in this type of Bill the better and anybody who went to the trouble of construing this would take the obvious meaning, the meaning I took from it. I looked through the larger dictionary in which there is an entire paragraph, but the volume is too heavy to bring in here. The Parliamentary Secretary may think that I have been making this point just to prolong the debate but he can get that out of his mind. It is a good point for the Committee Stage of a Bill and I should like to hear the Minister's answer.

Mr. T.J. Fitzpatrick

(Cavan): I am interested in the point raised by Deputy O'Donovan and the House is indebted to him for bringing his analytical mind to bear on the words. There is a lot of force in what he has said. The draftsman says:

A person who encourages or advocates the commission of an offence shall be guilty of an offence.

Then the section goes on:

Where a statement in contravention of subsection (1) of this section is made by or on behalf of a group of persons....

Obviously, the draftsman, when drafting subsection (2), assumed that he had drafted subsection (1) something like this:

A person shall not encourage or advocate the commission of an offence under subsections (2) or (3) of this Act....

There is, however, the point that there is not one word in subsection (1) about a statement. Surely somebody could encourage or advocate the commission of a crime in a variety of ways without issuing a statement. He could, for instance, parade as a sandwich man, or he could encourage it by cheering the people on. Although there is not a word about a statement in subsection (1), when we come to subsection (2) the whole talk is about a statement. In my opinion, all this goes to show that this Bill was drafted in haste and in a fit of bad temper.

I believe this section is meaningless. I do not say subsection (1) is meaningless. The provision that a person who encourages the commission of an offence under subsections (2) and (3) is clear enough, but when we come to the next provision it seems to have been drafted on the assumption that subsection (1) was drafted otherwise, because in subsection (1) there is no reference to a statement good, bad or indifferent. I do not know whether publishing something in a newspaper is making a statement. Could it be argued that a person who walks up and down with a placard is making a statement? He could encourage or advocate people inside in a variety of ways other than by making a statement. I suggest that subsection (2) should have been drafted like this: "Where a person is charged with an offence under subsection (1),"et cetera.” That might make some sense.

I suggest that the Minister should have another look at the entire section. If he does I am sure he will come to the conclusion that there is a lot in what Deputy O'Donovan has said. For instance, I should like the Minister to tell us whether, if a person encourages the commission of an offence otherwise than by making a statement, he is guilty of an offence. The whole thing is a complete mess and it might be beneficial if the Minister devoted some time to dealing with these points than to dealing in a general way with the provisions as he has done to date.

Dr. Thornley

Since the Minister is not here to answer the question put to him by Deputy O'Donovan and Deputy Fitzpatrick I might come in at this stage. I hope these questions are being communicated to the Minister and I hope we may hear his answers to them in due course. In the absence of an opportunity for him to do so at the moment I would like to refer to the Bill in general and this section, even as amended, in particular.

I would like to lend my voice to those of the Deputies on these benches who have expressed unalterable hostility to this section no matter how it were to be amended. There are probably few Deputies who have a better record of refusing to obstruct Government legislation for the sake of obstructing it, of not making lengthy speeches for the sake of making lengthy speeches than I. Even this morning in the closing stages of the Committee Stage of the Higher Education Bill I expressed a view from my side of the House that acceptable Government legislation should be permitted to pass rapidly. However, when one comes to a measure as blatantly unacceptable as this then I think one is entitled to use the time of the House to express the dissent and distaste which one feels for it in the most forcible terms, even if in so doing one takes up the time of the House. If in so doing one does take up the time of the House the fault is not one's own; it is the fault of the Government which has brought this strange, complex, unnecessary and potentially highly dangerous measure before the House at this moment in time.

I am not a journalist, I am not a lawyer, I am not competent to adjudicate specifically upon what constitutes journalistic freedom, although I have some small experience in that field. I am not able to tread my way through the legal intricacies of this Bill, if indeed anyone can. I would have thought that this debate on the Committee Stage had demonstrated that no one can with absolute certitude since the wording of the Bill is so loose. I know something about freedom as a valuable European concept and I know something about the very nicely drawn difficulties which attend upon the obligation to communicate with impartiality through the media. I have some experience in these two fields: the academic field of studying what one might call the philosophy of freedom and the practical journalistic field of endeavouring to sustain freedom of communication in the face of a government, any government, in the case of my experience this government or one of its previous models, which did not cherish the ideal of journalistic freedom or freedom of communications pretty highly.

The English philosopher John Stuart Mill in a memorable passage in An Essay on Liberty, a work with which, judging by the Minister for Justice's demeanour in the time I have known him I doubt if he numbers amongst his library, once said, “All mankind hath not the right to silence one dissenter”—a marvellous statement which is as true today as it was when he made it in, as far as I recall, the 1860s. Today the dissenters, uncomfortable people, are the exponents of squatting, fish-ins and Women's Lib. It is fashionable to patronise these people. I am not saying they are invariably correct in either their aims or their tactics but perhaps the fullest volume of patronisation comes from the benches behind the Minister.

Today was Derby Day. I suppose it seemed very funny and unfeminine when that suffragette flung herself in front of the royal horse so many years ago. Yet there are not now many of us who would say that votes for women was a funny or irresponsible claim to make socially. Those people were similarly unpopular outcasts then. Perhaps the Minister and we on all these benches, enmeshed as we are in the ritual of this chamber, and the parliamentary club atmosphere which surrounds it, should ask ourselves occasionally if similarly we too are not wrong and the dissidents, the uncomfortable people, are not perhaps right. After all, they were right in 1916.

A section like this would have found itself very much at home in the Defence of the Realm Act. Is that what we are reduced to 50 years later? We imprison and silence not merely our actual protesters, some of whom may grate on our nerves, but also people who encourage or advocate the protests which they make, which under this Bill will become not merely civilly illegal as they are at the moment but criminally illegal.

"Encourage"—what is encourage? This point has been made before and it deserves to be made again. The Labour Party by its presence in this House I hope encourages a feeling of radical dissatisfaction with the society in which we live, encourages the saeva indignatio of Swift—at least I hope it does. Does that make it guilty of a crime? Is it a crime to tell people that the context in which they live is intolerably unjust and unfair? Is it written down in Holy Writ by the Minister, the Taoiseach or anybody else that the only place in which people who have been inert and dissatisfied for 50 years—I blame all governments; I am not interested in who built most houses in 1930 or in 1935—can externalise their dissent is here in the national Parliament where they have so vainly tried to externalise it for so many years? Is it a crime to say to them that much of the time of the House is wasted and they look in vain to us to bring relief to their misery and their poverty in the ghettoes and slums which still persist, for example, in the city of Dublin? It is going to become a crime if this Bill becomes law as no doubt the Minister's docile majority buttressed in this instance by the friendly rhetoric of Deputy Lenehan will ensure that it does become law.

I wonder why these people feel it necessary to act in this forcible, slightly vulgar, ostentatious and to all of us perhaps inconvenient manner? We are asked to reassure them that there is in Parliament a channel of communication which renders their undignified escapades unnecessary. I wonder is that true? Would the Minister not accept the fact as just about everybody else does that the increasing by-passing of this Chamber is not a functioning of some original sin or malevolent Moscow-financed or Peking-financed malice on the part of these people, rather is it due to the fact that we here have demonstrated to them that wherever else they may look for really radical social change they need not look here for it? Would it not be better to blame ourselves for our inadequacies rather than penalise these people under this section for revolting against our inadequacies?

This Bill, furthermore, introduces a concept of guilt by association which I find intensely distasteful and one which survives even in its amended form, but perhaps less grotesquely and offensively than in its original form. To me the idea that a person who is a member of a group should be required in law publicly to dissociate himself from the actions of another member of that group at the risk of penal consequences if he does not do so is a denial of human dignity, quite frankly. We all look back with veneration on 1916. We in the Labour Party take pride also in looking back on 1913. At the end of the 1913 strike the strikers were asked to sign a form of capitulation to the effect that they, at least, were good, clean-living slaves of the then existing capitalist system and would have nothing to do with the late James Larkin. The spirit of that demand to the unfortunate tram workers of Dublin in 1913 runs right through this offensive section in my eyes. It brings back to me the evocation of poverty which you get in a book like Strumpet City. It seems to me a terrible confession of failure, again, that in this day and age people should be asked to dissociate themselves from the more voluble, radical, articulate of their fellow-members of those quasi-political groups as the Minister calls them, if they are to preserve their legal freedom. I am not a lawyer but this is a concept which to me is unknown in the laws of decent communities but is very well known in instances, such as the one I cited of 1913, and in totalitarian societies where the principle of guilt by association has long existed.

This is a principle which is being resisted in all countries not so much, as Deputy Dr. Browne, as I understood him, correctly put it, by the violent men who are out to destroy society in any case and to whom this Bill will become a quite welcome incentive to still greater violence. This principle of guilt by association has rather been opposed by the liberals who cherish parliamentary institutions and the free making of decisions by discussion, voting and consent in a manner which the Minister alleges to cherish but does not in fact.

I think of America where the principle that you would not testify against your friend under the Smith Act was asserted with honour and dignity by people with much to lose, playwrights, cinema directors, a singer like Paul Robeson. Now this principle is to be breached here. By whom is it to be breached? To what group of men are we committing the powers of interpretation contained in this section? Let me give two simple illustrations of the potential dangers to which this Bill, if it becomes law, could leave us open at the hands of these people. The other day on a question on the National College of Art and the student agitations there the Minister for Education said to me—I am quoting him from memory—that the nature of the agitation showed a familiar pattern and that the same kind of people seemed to be involved over the past few years. When asked by me what he meant he said that the Deputy can work it out for himself or something like that. In other words, there is no problem in the National College of Art; there is just a gang of organised Maoists, Communists and such like—a simple solution to an educational problem.

Again, some years ago—I have mentioned this in the House before and I mention it again because I think it was despicable—a Member of the Upper House, a Member of the Minister for Justice's party, said of a certain priest who lectures in a college in this city that because of his political views——

Mr. O'Malley

What has this to do with this section?

Dr. Thornley

I will explain it to the Minister in a second—because of his political views, and the manner in which he influenced his students, he was not fit to hold the post which he held and if the said Senator had anything to do with it he would cease to hold it. If this priest in a class says to his students that he advocates and encourages the commission of an offence under section 1 of this Bill is he liable to prosecution? Indeed, should we not go further? Do the rest of the Dominican Order not have to come in here on their hands and knees to the Minister for Justice and dissociate themselves from him? The Minister may think it is funny and he may think it is exaggerated but I do not.

The wording of this deplorable section frightens me no more than does the demeanour of the Government over the past two years who will be empowered to operate this section. The combination is terrifying. I do not know if the Minister ever goes to the pictures. I have already recommended to him a book, when he was not here, John Stuart Mill's On Liberty. I now want to recommend to him a Greek film called Z, also on liberty. I would like to place on record that in my view, and I am not an extremist or an alarmist, the implications of this section for liberty in this country are as frightening as the assumptions of arbitrary authority which took place in countries like Greece before the final deluge which absorbed liberty occurred.

Question put.

The Committee divided: Tá, 47; Níl, 40.

Tá

Aiken, Frank.
Andrews, David.
Boylan, Terence.
Brady, Philip A.
Brennan, Joseph.
Brennan, Paudge.
Brosnan, Seán.
Browne, Patrick.
Browne, Seán.
Carter, Frank.
Carty, Michael.
Colley, George.
Connolly, Gerard C.
Cowen, Bernard.
Cronin, Jerry.
Crowley, Flor.
Cunningham, Liam.
Davern, Noel.
Dowling, Joe.
Fahey, Jackie.
Flanagan, Seán.
Foley, Desmond.
French, Seán.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Lalor, Patrick J.
Lenehan, Joseph.
Lenihan, Brian.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Meaney, Thomas.
Molloy, Robert.
Moore, Seán.
Noonan, Michael.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Timmons, Eugene.
Wyse, Pearse.

Níl

Barry, Richard.
Belton, Luke.
Belton, Paddy.
Browne, Noel.
Burke, Joan.
Burton, Philip.
Cluskey, Frank.
Conlan, John F.
Coogan, Fintan.
Donnellan, John.
Enright, Thomas W.
Fitzpatrick, Tom (Cavan).
Fox, Billy.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
Kenny, Henry.
L'Estrange, Gerald.
Lynch, Gerard.
McLaughlin, Joseph.
Cooney, Patrick M.
Corish, Brendan.
Cosgrave, Liam.
Cott, Gerard.
Creed, Donal.
Cruise-O'Brien, Conor.
Desmond, Barry.
Dockrell, Henry P.
Dockrell, Maurice E.
McMahon, Lawrence.
Malone, Patrick.
Murphy, Michael P.
O'Connell, John F.
O'Donnell, Tom.
O'Donovan, John.
O'Reilly, Paddy.
O'Sullivan, John L.
Pattison, Séamus.
Thornley, David.
Timmins, Godfrey.

Tellers:—Tá: Deputies Andrews an d Meaney; Níl: Deputies L'Estrange and Cluskey.

Question declared carried.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Cooney

I move that this section be deleted.

An Ceann Comhairle

The Deputy cannot do that at this stage. He can oppose the section if he wishes.

Mr. O'Malley

Is it not a little premature to oppose the section before it is moved?

An Ceann Comhairle

When the Chair calls a section, it is automatically moved.

Mr. Cooney

I oppose this section on the grounds that it tends to shift the onus of proof in effect from the prosecution to the defendant. The kernel of this offence is ownership of the land or vehicle in question and what this section does is to make it unnecessary for the prosecution to prove ownership. Consequently, it says to the defendant: "We are not saying anything about ownership. It is up to you to prove ownership; otherwise you are guilty." That is putting the onus of proof on the defendant to show that he is guilty. It is not a question of shifting the evidential burden that the Minister referred to while speaking on section 1 because it is the substance of the burden of proof that is involved here. Let it not be directly involved but substantially that is what it means.

Furthermore, it seems to me that the section is now unnecessary by reason of the amendment to section 2. Paragraph (c) of section 2 provides for exemption for persons who enter in pursuance of a bona fide claim of right. I expect that that subsection will be availed of in all of the cases arising under this Bill and that consequently the exemption contained in section 5 will not arise. Another point that occurs to me in relation to section 5 is the wording of it where it reads:

... every person whom he encouraged or attempted to encourage... 5785

I have been puzzled as to how one can attempt to encourage or how any person can prove that an attempt to encourage was made. I do not think there are any half measures about encouraging. One either encourages a person or does not encourage him. I fail to see how one could attempt to encourage. If one raised a hand in support at a meeting or if one voted yes or wrote an article or spoke, there would be substantial encouragement but there is no question of attempt to encourage involved. Therefore, it renders the section ridiculous to have these words in.

Another objection to the section is that in effect if it shifts the onus of proof with regard to ownership of land to the defendant and the defendant raises a question of title, every prosecution under this section becomes a title action. That is hardly intended but that is the result that will follow. If such a ridiculous result can follow, the section is bad and should be deleted.

Notice taken that 20 Members were not present. House counted and 20 Members being present.

Mr. Pattison

This section is another of the more objectionable sections of this Bill in so far as that in effect it presumes the defendant to be guilty until he proves himself to be innocent or presumes a group of people to be guilty until they prove themselves innocent. It is an alien idea to introduce this into legislation. When we cannot give the world a lead in other respects, we should at least in our laws show the greatest amount of justice, fair play and civil rights. It is legislation which contains sections such as this particular one that holds us up to ridicule not only to our neighbouring countries but to the countries of the world.

Contained in this, as well as any of the criminal offences that have now been created, including the criminal offence contained in section 4 and emphasised by Deputy O'Donovan, is the criminal offence now of acting in contravention of subsection (1) of section 4. A person, in order to contravene that section, would have to refuse to encourage or advocate. If one refuses to encourage one commits an offence because one is acting in contravention. This shows how ridiculous section 5 is. It is not always possible, and a defendant in such circumstances may not always have the means, to prove innocence and, as in all laws, the onus of proof must lie with the prosecution. The onus should not be on the defendant to prove that he is innocent but that onus is being placed on him in this section. Therefore, we would oppose the section strongly and vote against it.

Mr. O'Malley

Where a person commits an offence of forcible entry or forcible occupation under section 2 or 3 of the Bill it will, in the overwhelming majority of cases, be in circumstances where he has no colour of right to the property entered or occupied. Since it would be unreasonable to the point of absurdity to require the prosecution to go through the tedious and possibly costly process of proving ownership that is not being challenged, section 5 provides that, unless the defendant satisfies the court that he has a bona fide claim to ownership of the property, it will not be necessary for the prosecution to prove the ownership. In practice the effect of this section will be that the prosecution will not have to introduce evidence of ownership of property unless the defendant raises and puts in issue a real question of title. It should be observed that the onus placed on the defendant is minimal in that he is not required to prove ownership, merely to introduce a bona fide claim of title for which there is some colour or show of reason. Once he fulfils that obligation the onus is firmly on the prosecution to prove the ownership of the property as part of its case against him.

Deputy Pattison is completely mixed up about what the effect of this section is. He thinks it provides in some way that a man is guilty of one of these offences until he proves himself innocent. That is totally wrong. It is necessary for the prosecution in proving one of these offences under section 2, 3 or 4 to prove quite a variety of different component parts that would go to make up the offence. One of these, and one of the least important from the overall legal point of view, is the question of the ownership of the property. If the persons who occupy a premises forcibly or remain in forceful occupation of it dispute the ownership of the property, then the prosecution has to prove it. If they do not dispute it—and in 99 per cent of cases they do not—the prosecution does not have to prove that small component part of its entire case.

The only reason we have this provision here is not to make things any more difficult for the defendant but simply and solely to save the time, trouble and expense of getting up title deeds and going through what could be a lengthy and expensive process of proving the ownership when that is not disputed by anybody. In practically all business premises today the property would be mortgaged in some form or other. The title deeds would be either with the bank on deposit for safe-keeping or they would be with a building society, insurance company or some other such organisation.

It is in the interest of the defendant who wants a speedy trial that this provision is here. If he is arrested, say, this evening in a premises in Dublin, he could be tried in the morning in the district court, but if the prosecution had to send to England or send to a bank or somewhere else for the deeds of the property it would inevitably mean delay. It might well suit the defendant to get his case over and done with there and then. It it quite wrong, and I cannot reiterate this often enough, to say that there is any question of the onus of proof being put on the defendant. I do not know why people misread it in that way. It is simply a question of whether or not the prosecution has to require the owners to bring in the deeds and other documents. What this section provides is that if the ownership is not disputed it will not be necessary to produce the deeds. If the defendant says he wants the deeds brought in they will be brought in.

I cannot readily put my finger on the particular section but in the Housing Act, the Local Government Acts and other legislation there is a somewhat similar provision to the effect that where a local authority takes proceedings for possession of one of its dwellings—it happens every day of the week in connection with arrears of rent or something else—provided the city solicitor or whoever it is calls the rent collector to say that this is corporation property, the court accepts it at that. If the defendant makes a song and dance about it, which he never does, the city solicitor could ask for an adjournment for a week or two in order to get his deeds. The expense and trouble of that would be enormous. The result is that it is never done. It is a similar provision to the one here, and the fact that this procedure is never adopted does no harm to anybody.

Where did the Deputy get that phrase?

Mr. J. Lenehan

I got it from President Roosevelt a long number of years ago, before the Deputy was born. He was the inventor of that phrase. I cannot accept for a moment that somebody can go along and take over somebody else's premises and house. A crowd of plutocrats—the present Labour plutocrats—people who never did an hour's work in their lives are now dictating to us as to what we are to do, what we are to say, and where we stand. Wait until the next election——

Mr. Kavanagh

You are standing behind us.

Mr. J. Lenehan

There is no danger that I would stand behind you. There is not a man in Ireland or woman either who would stand in front of you or behind you or lie in front of you. You are only codding yourselves. I would love to be sent out for an eggcupful of these fellow's sweat. Self-appointed Labour men, I cannot understand how the party on the far side, the most autocratic and conservative in Western Europe, can vote with the so-called Labour Party. That is what annoys me. It is very difficult for a man of my type, a long time knocking around this world, to have to try to put up with that type of thing in this House. I defy them to justify one word of what they said. It does not make the slightest difference whether they try to justify it or not because the point is that the Bill will go through. Whether they cut their hair or not it will go through. There is not a man in this House who has the honesty to come out before the public, even the poorest member of the public, and say he does not think that the taking over of public property, private property, my property, your property or the property of anybody else must once and for all come to an end. The day that we tolerate that type of thing and allow our property to be taken over by a crowd of pseudo-aesthetes and chancers, and all the other funny fellows, the hairy hogs of Trinity, we will end up with a nice country.

Acting Chairman (Mr. Carter)

I am afraid, Deputy, that this is not quite related to the section.

Mr. J. Lenehan

I have said it now.

Mr. T.J. Fitzpatrick

(Cavan): As far as I am concerned, if the Minister is prepared to say that he will look into the matter between now and Report Stage and will consider providing by amendment that it will be necessary for the owner to say he owns it, I am prepared to let the section go through now. It can be recommitted then on Report Stage.

Mr. Cooney

Mr. T.J. Fitzpatrick

(Cavan): I want to make it clear as far as we in the Fine Gael Party are concerned we are accepting the Minister's offer to reconsider this between now and the Report Stage.

Question put.

The Committee divided: Tá, 50; Níl, 9.

Tá

Aiken, Frank.
Andrews, David.
Boylan, Terence.
Brady, Philip A.
Brennan, Joseph.
Brennan, Paudge.
Brosnan, Seán.
Browne, Patrick.
Browne, Seán.
Carter, Frank.
Carty, Michael.
Colley, George.
Connolly, Gerard C.
Cowen, Bernard.
Cronin, Jerry.
Crowley, Flor.
Cunningham, Liam.
Davern, Noel.
Dowling, Joe.
Fahey, Jackie.
Fitzpatrick, Tom (Dublin Central).
Flanagan, Seán.
Foley, Desmond.
French, Seán.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Healy, Augustine A.
Herbert, Michael.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Lalor, Patrick J.
Lenehan, Joseph.
Lenihan, Brian.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Meaney, Thomas.
Molloy, Robert.
Moore, Seán.
Noonan, Michael.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Sherwin, Seán.
Smith, Michael.
Smith, Patrick.
Timmons, Eugene.
Wyse, Pearse.

Níl

Cluskey, Frank.
Corish, Brendan.
Cruise-O'Brien, Conor.
Desmond, Barry.
Kavanagh, Liam.
O'Connell, John F.
O'Donovan, John.
Pattison, Séamus.
Thornley, David.

Tellers: Tá, Deputies Andrews and Meaney; Níl, Deputies Cluskey and Kavanagh.

Question declared carried.

Mr. T.J. Fitzpatrick

(Cavan): Before moving to the next section, may I take it that the Minister's offer still stands to have a look at the section and introduce a suitable amendment if possible?

Mr. Corish

I thought the Deputy wanted the Bill withdrawn?

Mr. O'Malley

Deputy Fitzpatrick will recall that I made it clear that if I got the section I would look at it on the lines suggested by him, but through no fault of Deputy Fitzpatrick I do not feel myself bound by that. I know that Deputy Fitzpatrick sent his emissaries to his right to try to straighten them out but they could not get through to the rather dense individuals there.

Mr. T.J. Fitzpatrick

(Cavan): It will be in order to put down amendments on Report Stage.

SECTION 6.

An Ceann Comhairle

Amendment No. 13 is in the name of Deputy Cooney. If the Deputy agrees, perhaps we could take amendments Nos. 13 and 15 together as they are related amendments.

Mr. Cooney

I move amendment No. 13:

In page 3, lines 45 and 46, to delete "either by the owner of the land or vehicle to which the offence relates or".

Section 6 makes provision for a court, in dealing with a prosecution under this Bill, to award compensation to an owner whose property may have been damaged because a defendant has had to be forcibly removed. Paragraph (a) of section 6 provides that:

Where—

(a) an offence under section 2 or 3 of this Act is committed by a person (in this subsection referred to as the defendant) who, upon being requested (either by the owner of the land or vehicle to which the offence relates or by a member of the Garda Síochána in uniform) to leave the land or vehicle,

That would suggest that it is dangerous to leave it to an unidentified civilian, so to speak, to say to a person at that stage, who is not a convicted defendant but who may be before the court, although no offence has been proved, that he must do or desist from doing something. Such an order, if it is to have sanctions or criminal consequences, should be given only by a person who can obviously be seen to be a person of authority, namely, a member of the Garda Síochána in uniform. Again, one could have difficulty in knowing if that power of request would be available to an agent of the owner as well as to the owner. Having regard to the wide definition of "owner" in the definition section one could have an owner delegating the right to demand possession to some of these private detective forces we have nowadays. That could lead to a very undesirable situation. It would be much better, and it would not in any way lessen the effect of the section, if the power to make a request to an alleged defendant were left to a member of the Garda Síochána in uniform.

The same arguments do not apply to amendment No. 15. My reason for wanting to take "owner" out of paragraph (b) is that there would be a temptation—perhaps temptation is the wrong word—to an owner, if he is entitled to compensation for damage done when he is ejecting an alleged defendant by force, not to be discreet in the method of removal of the trespasser. If we are entering into the realm of criminal law again it would be quite sufficient, I think, to leave enforcement entirely in the hands of the Garda Síochána. If compensation for damage is going to arise as a result of a removal effected under this measure it should arise only when the damage is unavoidable and reasonably caused. As it is, this opens the door to the undesirable possibility of private detectives being engaged for the purpose of clearing premises and the owner then being able to ask the criminal court to award him compensation for the damage done by these persons. At the moment, as the Minister is aware, any person can use force to evict a trespasser from his premises. If I found squatters in my home I would not wait to invoke the law to get rid of them; I would get rid of them myself. I am entitled to use as much force as is reasonably necessary in doing so but, under the common law, I would not have any consequential right to compensation, except in so far as an action for trespass might lie, and then there might be difficulty in proving that the damage was sufficiently closely related to be consequential damage.

This is a novel legal principle and I would, first of all, give a right to make a demand and give that right only to a person in uniform. Secondly, I would award damages only when the damage was caused by a member of the Garda Síochána. The difficulty of having it otherwise is that a person to whom a demand was made could ask a civilian: "What is your authority?" and the effect of the measure would be nullified, or else there would be a row, and that would be wrong. Putting agents in a position to be compensated would remove the onus on them to be careful.

Mr. Pattison

I commend Deputy Cooney on his attempt to bring some degree of justice into this measure but I still think it would take more than what Deputy Cooney proposes to make the section acceptable. Because of the preceding section and the new offences it creates the only way one could achieve what Deputy Cooney wants would be by making the Bill even more ridiculous than it is at the moment. The suggestions I have to make might appear ridiculous on their own, perhaps, but taken in conjunction with what has gone before, there is sense in them. The only way the section could be made acceptable would be by providing that only a member of the Garda Síochána in uniform could forcibly remove from any land or vehicle any person or the goods of any person. At that stage we would nearly want to make it an offence for the owner, as defined in the Bill, forcibly to remove any person or goods. One would have to create more offences. That is why I say my suggestion might appear ridiculous but, having passed the preceding section, this is the only way we could bring some balance into the Bill. It is completely one-sided in favour of people with property.

In order to balance the scales, as it were, of justice in this case, it should be equally an offence for an owner forcibly to remove a person from his property and it should not be an offence in a subsequent prosecution for an owner to prove his ownership. The kind of a suggestion we must make at the moment, possibly a ridiculous suggestion, is that when somebody has to be removed from property it should be only a member of the Garda Síochána who should do it.

Mr. O'Malley

I am afraid I cannot accept these two amendments. We should not start off in this section on the premise that it is the duty of the Garda to effect repossession of property. That approach, which is implicit in Deputy Cooney's amendment, is exactly the one that was criticised by several Opposition speakers, possibly by Deputy Cooney himself, on Second Stage. They objected to the criminal law being used to enforce private property rights. It could be argued that that would be precisely the effect of Deputy Cooney's amendment.

Mr. Cooney

As it is now a fait accompli, that is what is happening.

Mr. O'Malley

It is my belief that an owner should be the primary person to enforce his own rights and that the gardaí should enter into the matter only when it is impossible for him to do so because of the overwhelming weight of numbers against him. Deputy Cooney made reference to private armies. The possible difficulty that would arise out of that is dealt with in my three amendments Nos. 16 to 18, inclusive, which make it clear that an owner in entering his property endeavouring to eject somebody clearly will be doing so within the law. In line four, page 4, paragraph (b), it is stated that any entry by an unreasonably large number of people which would cause damage going beyond what is reasonable would not come within the scope of the section. Therefore, there is no encouragement at all to bring squads of people or to encourage them to lay about them too much.

Mr. T.J. Fitzpatrick

(Cavan): I think the Minister should have further thoughts about his attitude to the amendments, which have considerable merit. The Minister will appreciate that when we have reached the situation which this section deals with, we will have an explosive atmosphere. We will have a person, according to the Minister, unlawfully withholding possession, we will have the owner demanding possession and taking steps to get it, and obviously there will be a breach of the peace. What the Minister is doing here is legislating for a breach of the peace.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Mr. T.J. Fitzpatrick

(Cavan): As I was saying, when the situation envisaged by section 6 is arrived at there will be a rather explosive atmosphere in the vicinity of the premises concerned because there will be somebody in possession, according to the Minister and the owner unlawfully in possession, and the owner will be endeavouring to get that person out. I think a breach of the peace is inevitable and that the Minister here seems to be legislating for a breach of the peace between two private individuals. It is much more likely that unnecessary damage will be caused to the property and that there will be unnecessary bodily harm caused to one or other or both of the people concerned.

I do not think this is a situation that should be dealt with at all by civilians and there is no use in the Minister complaining that we on this side of the House want to invoke the criminal law. The Minister has done that. He has made this matter the subject of criminal law. He is handing over the execution of the criminal law to a civilian. In the interests of law and order, in the interests of the preservation of peace, the amendments being sought by Deputy Cooney, therefore, have a lot to recommend them. There is no extreme urgency involved here. The owner or his agent would have every opportunity, I am sure, of notifying the Garda Síochána and asking them to intervene. It is much more likely that possession will then be taken and the offenders ejected in a rational and reasonable way, a way in which the minimum of damage will be caused to the property and a way in which no bodily injury will be caused to the offending person or to the owner. It is a mistake to let this section go through as it is.

Another thing that strikes me is that some person assuming ownership could come along here, demand possession and proceed to take possession. I know if he did any damage he might get himself involved in the civil law later on, but it is far more preferable that the owner should have to acquaint the Garda and presumably satisfy them that he was the owner and that this other person was unlawfully in possession. I think that is much more desirable than the procedure in the Bill as drafted which will create a brawl in which a great deal of damage may be done to property and much injury done to people.

Mr. Pattison

The section does not indicate to whom the property belongs and this is an important point. We assume that it belongs to the owner, but what about the family in the house? They may have improved the house since they went into it and spent a good deal of money doing that. They may have quite an amount of valuable furniture and possessions of their own. The owner or his gang of bullies may break in, throw them and their belongings out and in the process smash up their property. That seems to me to be justified action under this section. Such action seems to have the protection of the law and here again the only class of people protected are the property owners. Damage done to his own property by the owner in the process of breaking in to his own property may be compensated under this section, but the persons in the house who may not have done any damage whatsoever to the property could be made to pay for the damage caused by the owner. This amendment goes some way in trying to protect property other than the owner's property. I do not think the section states whose property or to what property it refers. Does it refer to the property of the owner, the property of the person in residence or indeed the property of the gang who are breaking in? If for argument's sake the hired gang have some weapons for breaking in and these weapons are broken has the unfortunate defendant in that case to pay for the damage to the weapons? I understand these gangs use batons which are about twice as thick and about three times as long as the normal Garda batons. If these are broken in the process of breaking in will the person being thrown out have to pay for all the damage as well as damage to the property?

Mr. Cooney

If Deputy Pattison reads the definition of "owner" it will clear up some of the points he has raised. The Minister made the point that because the obligation is present on the parties to behave reasonably this would inhibit the employment, by a person seeking possession, of a private detective force. As Deputy Fitzpatrick has pointed out, the premises sought to be cleared might be occupied by a number of persons. The person seeking clear possession would probably be able to argue that it was reasonable for him to have the assistance of a larger number of persons so that his attacks on the premises could be effective. When we enter the realm of criminal law I think enforcement of criminal law should be left exclusively to the Garda. It might help at this stage if I were to move amendment No. 14 if that would be in order?

An Ceann Comhairle

No, we must dispose of amendment No. 13 before we get to amendment No. 14.

Mr. Cooney

The insertion of the word "unavoidably" after "reasonably" would again reinforce the Minister's point that the section inhibits as it stands any extravagant action by an owner seeking possession. I think the amendments are reasonable, they will not cause any difficulty and they will keep civilians out of what is now a matter for the Garda. There is a further difficulty: if the civilian claims to be the owner to a person in possession of property which he is claiming and the person in bona fide refuses to go because there is no proof from that civilian that he is in fact the owner, that person could subsequently on the owner showing himself to be the owner, commit an offence and be responsible for damages. A person should know from the very beginning that, if he is refusing something, that refusal could have monetary sanctions afterwards. It should be very clear that the person to whom the refusal is made is the person of authority. The only person who can clearly show himself to be a person of authority is a uniformed member of the Garda.

Mr. J. Lenehan

Tá

Aiken, Frank.
Andrews, David.
Boylan, Terence.
Brady, Philip A.
Brennan, Joseph.
Brennan, Paudge.
Brosnan, Seán.
Browne, Patrick.
Browne, Seán.
Carter, Frank.
Carty, Michael.
Colley, George.
Connolly, Gerard C.
Cowen, Bernard.
Cronin, Jerry.
Cunningham, Liam.
Davern, Noel.
Dowling, Joe.
Fahey, Jackie.
Fitzpatrick, Tom (Dublin Central).
Flanagan, Seán.
Foley, Desmond.
French, Seán.
Geoghegan, John.
Gibbons, James.
Gogan, Richard P.
Healy, Augustine A.
Herbert, Michael.
Hilliard, Michael.
Hussey, Thomas.
Kenneally, William.
Lalor, Patrick J.
Lenehan, Joseph.
Lenihan, Brian.
Lynch, Celia.
Lynch, John.
McEllistrim, Thomas.
Meaney, Thomas.
Molloy, Robert.
Moore, Seán.
Moran, Michael.
Noonan, Michael.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Des.
Sherwin, Seán.
Smith, Michael.
Timmons, Eugene.
Wyse, Pearse.

Níl

Barry, Richard.
Begley, Michael.
Belton, Luke.
Belton, Paddy.
Burke, Joan.
Burton, Philip.
Cluskey, Frank.
Conlan, John F.
Coogan, Fintan.
Cooney, Patrick M.
Corish, Brendan.
Cosgrave, Liam.
Cott, Gerard.
Kenny, Henry.
L'Estrange, Gerald.
Lynch, Gerard.
McLaughlin, Joseph.
McMahon, Lawrence.
Malone, Patrick.
Murphy, Michael P.
Creed, Donal.
Cruise-O'Brien, Conor.
Desmond, Barry.
Dockrell, Henry P.
Dockrell, Maurice E.
Donnellan, John.
Enright, Thomas W.
Esmonde, Sir Anthony C.
Fitzpatrick, Tom(Cavan).
Fox, Billy.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kavanagh, Liam.
O'Connell, John F.
O'Donnell, Tom.
O'Sullivan, John L.
Pattison, Séamus.
Ryan, Richie.
Taylor, Francis.
Thornley, David.

Tellers:— Tá: Deputies Andrews and Meaney; Níl: Deputies L'Estrange and Cluskey.

I have some misgivings about it but to show my bona fides and reasonableness I will accept it.

Amendment agreed to.

Amendment No. 15 not moved.

An Leas-Cheann Comhairle

Amendments Nos. 16, 17 and 18 may be discussed together.

Mr. O'Malley

I move amendment No. 16:

In page 4, line 5, before "entering" to insert "lawfully".

The object of the three amendments is to make it clear that the provisions of section 6 shall apply only in relation to damage to property reasonably caused by an owner, or a member of the Garda Síochána in uniform, who lawfully enters, or attempts to enter, the property with a view to retaking possession of it from a person who has committed an offence under section 2 or section 3.

Section 6 is designed to apply to the type of case where it becomes necessary for an owner or a member of the Garda Síochána to use force to eject protest groups or squatters and in the process he causes damage to property. Since damage reasonably caused in such circumstances will be attributable directly to the refusal of the illegal occupiers to get out when asked to do so, section 6 provides that the court in coming to a decision as to the penalty appropriate to the offence may take account of the damage done as if it were damage caused by the defendant. It may also take into consideration whether the defendant has compensated the owner for damage. The section also provides that the owner may recover the amount of the damage as a simple contract debt in civil proceedings.

It is to be noted that before the provisions of the section can come into play three things must have happened. First, an offence under section 2 or 3 must have been committed by the person who is squatting. Secondly, the person must have been asked to leave by the owner or a member of the Garda Síochána in uniform. Thirdly, damage to the property must have been reasonably caused by the owner or garda in entering, or seeking to retake possession, or in ejecting the squatters.

Because the word "owner" is widely defined in section 1, some Deputies may be under the impression that the section confers on, for example, a ground landlord power of entry which he does not have at the present time and that the section entitles such a person to recover from the squatter damages caused by an entry, or attempted entry, which but for the Bill he would not have any right to make in the first place. I am satisfied this is not a correct interpretation of the section but, in order to put the matter beyond all doubt, I am moving these amendments to paragraph (b), the effect of which will be to limit the operation of the section to cases where the entry, or retaking of possession, or ejection of the squatter is lawful in the first place. Amendment No. 8 also had a bearing on this matter inasmuch as it makes clear that nothing in this Bill confers on any person any right of entry which does not exist immediately before the Bill comes into operation.

That has nothing to do with breaches of the peace.

Mr. Pattison

(Cavan): The Minister has met this in a reasonable way. The section provides that:

the court, in coming to a decision as to the penalty, may take the damage to property into account as if that damage had been caused by the defendant and may have regard to whether or not the defendant has compensated the owner in respect of that damage.

The Minister is quite right to look into this. There is no power there, unless it is inherent in the criminal code, and I do not think it is. I do not think there is any power providing that damages be paid by the offending party to the aggrieved party. But it is obviously an invitation to the court to impose a stiffer penalty if compensation has not been paid than it would if compensation had been paid. As Deputy Cooney pointed out, the next proviso confers on the owner the right to take civil action and recover damages. This certainly needs looking into. It is a pity the Minister did not see fit to accept Deputy Cooney's previous amendment which sought to confer only on a member of the Garda Síochána the right to use physical force either to get into the property or to get the offenders out. I hope I made the case pretty clearly on that amendment. I invite the Minister to consider this again—on occasion he has been reasonable; on occasion he has been unreasonable— between now and the Report Stage. If he does he will, I believe, see the force of the arguments put forward. Really what we are doing here is inviting the owner to take the law into his own hands. To take the law into one's own hands in an explosive situation, when tempers are high and reason cannot be expected to prevail, creates a very dangerous atmosphere. More harm could be done by encouraging the owner to take the law into his own hands. I agree with the Minister this does not confer any civil rights on the owner.

Progress reported; Committee to sit again.

The Dáil adjourned at 10.30 p.m. until 10.30 a.m., on Thursday, 3rd June, 1970.

Dáil Éireann díospóireacht - Wednesday, 2 Jun 1971