I move amendment No. 2:
In page 3, after line 19, to add a subsection as follows:
"1(5) While this section is in force, section 30 of the Offences against the State Act, 1939, shall not be in force".
This amendment is designed to seek to ensure that this section and section 30 of the 1939 Act are not in force simultaneously and could not be used consecutively. In common with a number of speakers from this side I pointed out both on Second and Committee Stages that neither this Bill nor the Criminal Law Bill repeals section 30 or, for that matter, repeals any part of the Offences Against the State Act, 1939. Consequently, section 30 of the 1939 Act remains in force and will continue to be in force after the passing of this section. The net effect of that will be that the Garda will be entitled without repeating their powers under either or both these sections, but using each of them once only, to detain a person without charge or trial and, needless to say, without conviction, for a period of nine days. There is no way in law whereby the Garda can be prevented from doing that. If this section is passed without this amendment no court will have the power to say to the Garda, to the Government or to anybody else that they are not entitled to detain anyone without charge for a period of nine consecutive days. Under section 30 of the original Act a person can be arrested and on the expiration of 48 hours the Garda can release him nominally to the steps of whatever building he happens to have been detained in but they can re-arrest him immediately, take him back to the building and detain him there quite lawfully for a further seven days, making a total of nine days detention.
This party consider the seven days provision to be excessive and unnecessary. Obviously, then, we consider the nine days provision to be even more excessive and more unnecessary.
The amendment is perfectly reasonable and will not inhibit the Garda in any way. It will not prevent them from holding someone without trial for seven days although I do not think they should have that power. All the amendment would do would be to prevent them from holding someone without trial for nine days.
The Minister for Justice has said, and no doubt will say agian in reply to this amendment, that he will give a direction to the Garda as a matter of administrative practice that they are not to detain someone under section 30 of the 1939 Act and subsequently to detain him under section 2 of this legislation; that they would be in breach of this direction to do so. They would be in breach of his direction to them but not in breach of the law of the land. The breach would be purely an internal breach of discipline which might or might not be punished by some form of internal disciplinary proceedings against the chief superintendent or whoever had detained the person for nine days. That is no consolation to the one who had been detained. Such person would have no recourse to the courts in order to have what in the Minister's words would be "a wrong done him". He would have no right to go to the courts to obtain an order of habeas corpus. What in many ways is as important as this factor is the situation whereby his rights to avail of other guarantees that should be available to him by reason of the Constitution are also done away with. Deputy Haughey illustrated this clearly this morning but there are many people who do not understand yet that it is not merely the right of habeas corpus that is being removed by virtue of this section. Every constitutional right is being removed because Article 28 says that nothing in this Constitution shall be invoked where a Bill has been passed with the long title stating it is in pursuance of a state of emergency and in time of war or armed rebellion. For the purposes of law, if nothing else, we are supposed to be in a state of national emergency or of war or armed rebellion. Consequently there are no constitutional rights available to anybody arrested under this section. If a person is detained for nine days and then goes to the High Court or some other court he may be given the reply: “We agree that you have been detained unfairly for nine days. Clearly that is not what the Legislature intended. It is in breach of assurances given in the Dáil by the Minister for Justice but so far as we are concerned we must administer the law as we find it and the law says that you can be detained without charge or trial for nine days and there is nothing we can do about it.”
So far as these ministerial assurances are concerned it is notorious that they are of no value because even if given in good faith they are binding on no successor and legally they are not even binding on the Minister who gives them. The best summing up I have come across of the usefulness and the danger of assurances that happenings which can occur lawfully will not occur is contained in the words of the late W. B. Yeats who, at the time was a Senator and was writing for The Spectator an article on the Censorship of Publications Bill, 1928 for the issue of the 29th September, 1928. It is quoted in a footnote on page 22 of a book on Fundamental Rights in the Irish Law and Constitution by a Professor J. N. Kelly, and the said Professor Kelly quotes W. B. Yeats from The Spectator of that date as saying:
In legislation intention is nothing and the letter of the law is everything, and no Government has the right, whether to flatter fanatics or in mere vagueness of mind, to forge an instrument of tyranny and say that it will never be used.
That sentence deals perfectly with the situation that faces us in this House here tonight, and far more succintly, I suggest, than any of us in this House today are capable of expressing it. It was true in 1928, and tragically it is true today, and even more tragically, it is very necessary today that this principle expressed by W. B. Yeats should be recognised and the danger against which he warned should be guarded against. Yet here we are in this House nearly 50 years later being asked to assent to the proposition that the letter of the law does not matter: "It is not the intention or the wish of the Government that the letter of the law should be obeyed. We will give a direction to the guards telling them to enforce something less than the law allows."
That is not good enough, because the courts of this country—and it is a long established principle of jurisprudence in Ireland—have no right to have recourse to the debates of this or the other House, and even if their attention is drawn to ministerial assurances given in this or in the other House, they cannot take cognisance of them and those assurances are of no effect. The courts are bound to administer the law as they find it, and indeed there is a difference in the position to what it was in earlier times when the prosecutions were brought in the name of the Attorney General who was not a member of the Government of the day but at least associated with it in the sense that he advised the Government on legal matters. Now the prosections are almost exclusively brought by an independent civil servant who is in no way beholden to the Government of the day, who is not subject to their directions, who owes nothing to them and who cannot, except for very serious conduct or something of that kind, be dismissed.
The Director of Public Prosecutions is not alone entitled to enforce the law as he finds it in the Statute Book but has a duty to do that, and he would be lacking in his duty if he did not. He is not, of course, involved in the proceedings under this section, because this is purely an internment section. There is no offence created or that can be committed under this, but it shows the principle that, where there are offences involved, the Government can no longer—it is doubtful if they ever could but in no sense now can they do it—control the prosecution or initiate it or refuse to initiate it if they feel it is in breach of assurances given by a Minister in this House.
The Garda are in an equally independent position under this section, or should be in an equally independent position as the DPP. They should not detain people under this or under section 30 because the Minister tells them to do it. Now that he has refused to take that power himself, they will have to exercise their own discretion and not pay any attention to the views of the Minister. They should and are in duty bound to administer the law as they find it in the Statute Book, and they need not take account, when it is a matter of enforcing the law, of ministerial authorities or directives. They will be within their legal rights —even though, as I pointed out at the start, they may be in some way in breach of internal discipline— if they want to detain someone for nine days.
The Minister says he only wanted the Garda to have power to detain people for seven days. If he genuinely wants that, there is nothing to stop him accepting this simple and clear amendment. If he meant—and of course we believe now that he may not—what he said at the very outset of all this debate on these motions, Bills and so on, that he was open to accept reasonable amendments, how can he say this amendment is unreasonable?
