Amendment No. 1 in the name of Deputy Fitzpatrick has been ruled out of order.
Garda Síochána Bill, 1979. Report and Final Stages.
(Cavan-Monaghan): I move amendment No. 2:
In page 2, line 18, after "day" to add "provided that nothing in this section shall operate so as to validate any necessary proofs in a criminal trial".
By this I mean that nothing in section 1 shall validate restrospectively any proofs in a criminal trial. I have been concerned about this section since it was introduced. I have explained as fully as possible that it is an omnibus section, a very far-reaching section, notwithstanding the fact that the Bill is a one-section Bill. It was introduced by the Minister as such; in fact, he was optimistic enough to think that he could get all sections after a few hours debate on the day he moved Second Stage and he seemed to be somewhat irritated and annoyed when we sought a Committee Stage debate one week later. We were quite justified in doing this and we would have been guilty of a dereliction of duty if we had not done so. Events have proved we were right to seek a Committee Stage and a Report Stage debate because after the debate on Committee Stage we find that the Minister himself felt obliged to introduce an amendment on Report Stage. That shows the inadvisability of rushing legislation through this House. I will go further and say that probably the most deceptive type of Bill is that introduced as a one-section Bill, especially when that one section is quite long and when it contains much complicated legal phraseology that is foreign and strange to most people. That is the position here.
I have been concerned about this Bill since it was introduced because I fear the effect is to validate retrospectively a whole series of things done by Mr. McLaughlin while he was not legally appointed as Commissioner of the Garda Siochána. I am particularly concerned about the question of providing proofs in criminal prosecutions, either directly or indirectly. I believe that if the files were inspected it would be found that during the period when Mr. McLaughlin was not properly appointed he exercised statutory duties in providing proofs in criminal prosecutions, either directly himself on through persons to whom he had sought to delegate authority which he himself did not possess.
The objective of my amendment is to write into the Bill the following words, "provided that nothing in this section shall operate so as to validate any necessary proofs in a criminal trial". Unlike my learned colleague on my right I am not a constitutional lawyer but I believe that any attempt to so validate retrospectively proofs in a criminal action would be unconstitutional. I may be wrong in that, but whether such retrospective validation of proofs in a criminal action would be unconstitutional or not I do not think this House should be a party to giving that power to the Government and should not be a party to passing that kind of legislation.
I am well aware that amendment No. 3 in the name of the Minister seeks to provide that we will not do anything that is not constitutional. All I have to say in regard to that is thank you for nothing. In this House we cannot do something that is contrary to the Constitution. If a law is contrary to the Constitution it can be set aside by the High Court or the Supreme Court but somebody would be put to the trouble of taking a case to the High Court or to the Supreme Court if he was aware of his rights.
Amendment No. 4 in the name of Deputy Kelly is more or less on the same lines—I am subject to correction on this. My amendment is clear-cut. It merely says that we are not seeking to validate retrospectively proofs in a criminal prosecution. A person should be convicted of an offence only if it was an offence on the date that he did the act that gave rise to the alleged offence. In my opinion he should be convicted only on evidence that was given in accordance with the law on the date of his trial or even on the date on which the offence was committed. He should be convicted of an offence only on evidence that was valid and legal on the date the offence was committed.
In putting forward that argument and in seeking to establish it, I am not alone protecting the people who may have been wrongfully committed between January 1978 and May 1979 but I am seeking to establish for all time that it is wrong for this House to pass that kind of legislation. I am seeking to prevent this House setting a dangerous precedent, the precedent of making good retrospective evidence that was bad when it was given. I hope I am making myself clear on that point. That is why I am so concerned about this measure. It could and might be held as a precedent in the future for taking further dangerous steps and for establishing dangerous law. I am very much against that. Since I read this section I have been concerned about this. I am putting it to the Minister, even at this late stage, that he should not seek to validate bad evidence that would have been thrown out if the court had been aware that Mr. McLaughlin was not Commissioner of the Garda Síochána when he provided the evidence either directly under his own signature or indirectly through somebody he appointed in accordance with the law.
That is the case I am making. It may be that what I am saying might have what the Minister would consider serious consequences for his Department or for the country even in giving people a way out, in giving people a defence they did not think they had. I appeal to the Minister on the basis that hard cases make bad law and hard cases establish dangerous precedents to accept this amendment. I do not think we should establish those precedents or that we should pass this section as it now stands. I should not like in years to come, when perhaps this House is populated by different people——
Cubans.
(Cavan-Monaghan): ——that it should be pointed out that back in 1979 a Government which was democratically elected set a precedent——
That is where we are heading if Fianna Fáil stay there. We were ruled by a Cuban before.
I do not see what the Cubans have to do with the amendment before the House.
(Cavan-Monaghan): The only virtue in this might be that in the future it would be a warning against giving any party a majority of 20. It might be pointed out that not alone did the Government which set up this dangerous precedent have a mandate from the people but that they had the greatest majority any Government ever had since the foundation of the State.
I am very serious about this amendment. I did not put it forward lightly. I feel very strongly about it. I feel that what the Minister is doing is wrong. He appears to find himself in a difficulty and he is trying to get out of that difficulty and close all the gaps that the irregular appointment of Mr. McLaughlin opened. I appeal to him not to do that. It may be bad enough to validate appointments and have people believing that, if Mr. McLaughlin had not been appointed, someone would have been promoted or somebody else would not have been demoted or dismissed——
That does not arise under this amendment.
(Cavan-Monaghan): I know it does not call for a lengthy debate but what I am saying is that that is bad enough, but to go further and say that someone may have to do a long stretch in prison he would not otherwise have to do if this Bill were not passed and the faulty proofs were not cured retrospectively is going too far and is an embarrassment. As far as I know, this is going a step further in setting a dangerous precedent. I am not aware that crimes were created retrospectively or that faulty proofs were cured retrospectively since the foundation of the State and, if they were, I would be glad to hear about them.
That is a valid argument which, from my way of looking at it, is unanswerable. The Minister would not have been prepared to bring in a Bill, writing into it in black and white that, among other things, it proposed to validate these proofs retrospectively. If he had there would have been an outcry from the media and from many other people. That is what I think is tucked away in the language in this section. I am trying to sort it out and tell the House what we are doing. I implore the Minister not to go on with this.
There is no point in the Minister saying that if a person was convicted on bad evidence he has his rights. The time for appeal may have passed. I suppose he could apply for an extension of the time to appeal, but that means he must know his rights and be prepared to pay a lawyer or, if he cannot pay for a lawyer, get free legal aid to bring the matter to court. In my view the citizen should not be put to that trouble if the Executive made a mistake. If the Executive made a mistake they should own up to it and issue free pardons.
I thank Deputy Fitzpatrick for his contribution. He has been consistent in the points he has been making in this area since the Second Stage, but we will have to agree to disagree about this amendment which is totally unacceptable as far as I am concerned. It is not that I consider the matter is of any great practical significance but I do not believe there are many cases in which the issue will arise in practice.
On Committee Stage Deputy Fitzpatrick made great play of the fact that all we had to do was have a check carried out of all the files in my Department or in Garda Headquarters to ascertain in which cases Mr. McLaughlin had done anything in regard to prosecutions in the courts which may have led to the conviction of any person. The fact is that there are no such files in my Department which, as Deputy Fitzpatrick must be aware, does not deal with criminal prosecutions. Neither, in the majority of cases, does the Commissioner or any other officer in Garda Headquarters deal with such matters.
The Deputy should know that prosecutions are initiated at the behest of members of the force all over the country who, where necessary, work to the local State Solicitor and to the Director of Public Prosecutions. There is no way in which we can select a few files, as Deputy Fitzpatrick has been implying, and ascertain the information he wants us to extract. Indeed, even if one were to go through an indeterminate number of files it would not be possible for the gardaí to determine in what, if any, cases an issue of validity of proofs arose in a serious way. That is the reality irrespective of what Deputy Fitzpatrick asserts to the contrary.
Having made that point, I now want to stress that whether there are two or 20 or 100 cases, the principle, as far as I am concerned, is the same and that is that subject to the protection of people's constitutional rights—and those rights cannot be taken away irrespective of the majority any party might have in Government—convicted criminals should not be allowed to evade the consequences of their guilt on what the overwhelming majority of the public would rightly recognise as a totally unmeritorious defence. Criminals sometimes escape justice on unmeritorious technical defences and that is unavoidable, but that is no reason why we, as legislators, should go out of our way to make an exception in this Bill for the purpose of preserving an unmeritorious technical defence.
To illustrate what is involved in the Deputy's amendment let me point out that, even if there would be abundant evidence to prove that a person had committed the crime with which he was charged, and even though he may have been caught in the act, the intention of the amendment is that he would be allowed to go free because its whole object is to provide that the prosecution would be precluded from relying on the Bill when enacted to validate any administrative or purely technical step taken in the proceedings. The amendment is so framed that it applies to every crime no matter how serious and, in addition, the words "any necessary proofs" are so broad and are so imprecise that it would be quite impossible to say what aspects of the prosecution's case were covered by them and what were not, since in a criminal case every portion of the prosecution's case must be susceptible of proof and I am satisfied, without any doubt, that this amendment would represent bad policy. I am sorry to have to say to the Deputy that I must totally oppose it for the reasons given.
(Cavan-Monaghan): I do not intend to take up much more of the time of the House because it is apparent to me that the Minister is determined to put this Bill through and enact it as it stands subject to the cosmetic effect of the next amendment. The Minister has said that he is satisfied that there are not many of the cases that I have been talking about in practice. That means that there are some such cases. He says that there are no such files in his Department. Of course there are such files in the commissioner's office; of course there are such files in the office of the Director of public Prosecutions, and I am sure the head of police or his deputy do not lightly sign their names to these all-important documents without some record being kept of them. I do not accept the Minister's approach to this. I will still believe that a person can be convicted of an offence and deprived of his liberty only in accordance with the law as it then was and not as this House wants to make it months, or perhaps years, afterwards.
But the most alarming part of the Minister's recent contribution is his reference to a totally unmeritorious defence. Who is the Minister to decide what is a totally unmeritorious defence? Once we start using that sort of language and once we start tinkering about with the law we are opening the way to some other Minister considering in years to come that something else is a totally unmeritorious defence. I am not, I hope, being extravagant when I say that that type of language smacks of the police state; it smacks of having no regard for the rights of the individual; it smacks of saying that if we know that such a person is guilty and we know that he did it, then we have to put him behind bars even if we have to take some short cuts in the process. That is the danger I see and that is the danger that I have feared since I took up the stance that I have taken up on this Bill in this section. If I wanted corroboration and if I wanted backing, I would not have to read in books and I would not have to search law reports and I would not have to consult my learned colleagues in the law library; I would be satisfied when I heard the Minister coming in here and talking about a totally unmeritorious defence. For the Minister to say that something is a totally unmeritorious defence means that he or the executive decide whether an accused person is guilty or not and it is the next step to say that if we are satisfied that a person is guilty we get him. I am appalled at this approach. I feel that I have done all that I can do to resist this and I am going to oppose it to the end by voting on it because I feel so strongly about it.
Amendment put.
The Dáil divided: Tá, 38; Nil, 52.
Tá
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Bermingham, Joseph.
- Boland, John.
- Bruton, John.
- Creed, Donal.
- Crotty, Kieran.
- D'Arcy, Michael J.
- Deasy, Martin A.
- Desmond, Barry.
- Donnellan, John F.
- Enright, Thomas W.
- Fitzpatrick, Tom. (Cavan-Monaghan).
- Flanagan, Oliver J.
- Griffin, Brendan.
- Harte, Patrick D.
- Keating, Michael.
- Kelly, John.
- Burke, Joan.
- Byrne, Hugh.
- Conlan, John F.
- Corish, Brendan.
- Cosgrave, Liam.
- Cosgrave, Michael J.
- L'Estrange, Gerry.
- McMahon, Larry.
- Mitchell, Jim.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Brien, William.
- O'Connell, John.
- O'Donnell, Tom.
- O'Toole, Paddy.
- Ryan, John J.
- Timmins, Godfrey.
- Tully, James.
- White, James.
Níl
- Ahern, Bertie.
- Ahern, Kit.
- Andrews, David.
- Aylward, Liam.
- Brady, Gerard.
- Brady, Vincent.
- Briscoe, Ben.
- Browne, Seán.
- Callanan, John.
- Calleary, Seán.
- Cogan, Barry.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Gerard.
- Cowen, Bernard.
- Daly, Brendan.
- de Valera, Síle.
- Farrell, Joe.
- Faulkner, Pádraig.
- Filgate, Eddie.
- Fitzpatrick, Tom. (Dublin South-Central).
- Fitzsimons, James N.
- Flynn, Pádraig.
- Fox, Christopher J.
- Gallagher, Dennis.
- Haughey, Charles J.
- Keegan, Seán.
- Kenneally, William.
- Killeen, Tim.
- Lalor, Patrick J.
- Lemass, Eileen.
- Lenihan, Brian.
- Leonard, Tom.
- Leyden, Terry.
- McCreevy, Charlie.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Molloy, Robert.
- Moore, Seán.
- Morley, P.J.
- Murphy, Ciarán P.
- O'Connor, Timothy C.
- O'Hanlon, Rory.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Paddy.
- Tunney, Jim. Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael J.
- Wyse, Pearse.
Tellers: Tá, Deputies L'Estrange and B. Desmond; Níl, Deputies P. Lalor and Briscoe.
Amendment declared lost.
Amendments Nos. 3 and 4 may be discussed together.
I move amendment No. 3:
In page 2, after line 18, to insert the following subsection:
"(2) If, because of any validation expressed to be effected by subsection (1) of this section, that subsection would, but for this subsection, conflict with a constitutional right of any person, the validation shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect."
This amendment arises from the debate that took place on Committee Stage of the Bill. Deputies who were here on Second Reading and Committee Stage will recall that Deputy Kelly put forward legal argument in favour of the proposition that an amendment was necessary and he put down an amendment on Committee Stage. I said then that there was no disagreement between Deputy Kelly and myself about the underlying principle. What was at issue was the purely legal question whether on the one hand, it was necessary or desirable to say something explicitly in the Bill —which is what Deputy Kelly argued for—or whether, on the other hand, the point was already covered clearly, even though only implicitly, and whether spelling it out would be not only unnecessary but positively undesirable because of the effect it might have on the drafting or interpreting of other legislation.
This is one of those situations where if an amendment is unnecessary it is also undesirable because of the possible consequences on other legislation. The law officers who had considered the point in the context of the Deputy's amendment on Committee Stage had expressed the view that such an amendment was unnecessary and therefore undesirable. On the basis of that advice I opposed such an amendment on the last occasion. However, since it was clear that Deputy Kelly was putting forward a serious legal argument to the contrary, I undertook to bring that argument to the notice of the law officers again.
It will be apparent from the fact that I have moved this amendment now that the law officers accept that there is force in the arguments adduced by Deputy Kelly and they have now advised in favour of an amendment. I hope it will not sound in any way ungracious to the Deputy—and certainly it is not intended to be—if I say that my understanding is that it is still considered that a valid argument could be made against having an amendment but it is accepted that the contrary argument is strong and that the balance comes down in favour of an amendment. I could perhaps leave it at that on the basis that what is stated in this House is not, in any event, evidence that may be produced in court in any argument about the interpretation of this Bill, and that to say any more is just delaying the House. However, there is a possibility that some question may arise at a future date in this House on another Bill and, if only for that reason, I think it right to make a few further comments.
Firstly, it is accepted as far as I am concerned that there could be no question of adopting a principle in the drafting of Bills of simply setting out a basic provision in a stark form on the basis that it could be left to the courts to add any necessary procedural or other safeguard. On the last day Deputy Kelly took it that I was by implication defending that kind of general approach. That was not my intention. My argument was not on the merits of spelling out or not spelling out specific procedural or other safeguards in legislation. We are not dealing here with specific safeguards but only with a generalised reference to constitutional rights. Whether such a reference is made or left to be inferred, it remains a very general reference that can be interpreted only by the courts, and that, of course, is unavoidable.
Accordingly, the question whether the reference to constitutional rights ought to be included or omitted is really what can fairly be called a very technical one. Having said that, I must also say and emphasise that, though it may be a very technical question, it is an important one since it could affect the validity of the Bill itself. For that reason I would like to place on record my appreciation of the contribution made by Deputy Kelly.
The question remains whether, by making such an amendment, the House would be creating serious difficulties in relation to other legislation. On reconsideration, I believe that in this instance the answer is, "No, some difficulties, perhaps, but not serious ones." I say this on the basis that validating statutes as a class can fairly be said to be unique. Such statutes are retrospective legislation and that distinguishes them from all other Bills in relation to the issue we are now discussing. I am prepared to accept that the amendment I am proposing could well set a precedent if it should ever be necessary to have any form of validating statute in the future. Fortunately, validating statutes are few and far between and we need not worry about it.
One final point is to answer the question as to why I put down this amendment rather than accept the amendment put down by Deputy Kelly. The answer is that, from a technical standpoint, the amendment I have put down is considered preferable. In effect, the issue is that if there is a clash between a purported validation and the constitutional right of any person, then to that extent the purported validation cannot operate. This is common ground and is the case whether we have an amendment or not. In that event the ineffectiveness of the purported validation does not arise from any claim made; it arises from the existence of the constitutional right and must extend as far as that right. Strictly speaking, Deputy Kelly's amendment, if he will forgive me for saying it, is slightly narrow, perhaps too narrow, because under it the ineffectiveness of the validation is made to depend on there being legal proceedings in the course of which certain matters would have to be alleged as being material to the case being made. In practice that reflects what would happen if the matter were raised at all, but theoretically it is the constitutional right itself that is the relevant factor rather than the plaintiff's claim that the right exists or the particular form of pleading used by the plaintiff.
I am glad the Minister has put down an amendment designed to meet the point I was making. I appreciate very much his taking what I had to say so seriously and getting his advisers to do the same. I appreciate also what he says about my amendment being a bit narrow. It is true that it does depend on litigation being started by somebody, whereas the Minister's amendment does not, although, of course, it cannot be seen to what extent the Minister's amendment will have any concrete effect unless and until litigation begins. However, I appreciate that it meets the same point and I am grateful to the Minister for accepting a suggestion from this side.
The Minister did not deal as ingenuously and fairly as he might have with Deputy Fitzpatrick's amendment and it would have been a good deal easier had the Minister allowed the House to produce a fairly concise list of instances in which it might be said that a conviction was at risk because of the chain of legality attaching to the proof. I sympathise strongly with Deputy Fitzpatrick's point and consider that the Minister did not meet it entirely fairly, but the Minister's amendment will go a long distance towards meeting even Deputy Fitzpatrick's point. My amendment would have done so also. To the extent that anybody may wish to complain that his conviction has been secured, say, by a confession which was taken from him while he was unlawfully in custody, the unlawfulness of his custody resulting from a flaw in the chain of authority by which the custody was perhaps extended by another 24 hours or something like that, the courts would not necessarily be prepared to entertain it. Even if they were prepared to entertain the idea that confession ought to have been omitted because of the illegal custody, the prisoner's point would be essentially a constitutional one and the right which would have been infringed by his unlawful custody would have been essentially a constitutional right. The Minister's amendment is designed to save that right. While the prisoner's case might not be all that strong, as in the case I have outlined, the Minister's argument would preserve that right for him. It should have been possible for the Minister without envisaging hundreds or thousands of files to discover just which conviction might be at risk in consequence of a challenge arising through a suspect validating statute. The Minister's amendment goes a very long way and I appreciate its introduction. I beg leave to withdraw my amendment No. 4.
I am glad that my amendment is acceptable to Deputy Kelly. I will not restate the arguments for it. In contrast to the previous amendment to which Deputy Kelly referred—amendment No. 2—which deliberately set out to allow people convicted in a court of law to escape the consequences of their crime by allowing them to rely on issues unrelated to the evidence that they were guilty, the present amendment deals with constitutional rights.
We have finished with the previous amendment.
Deputy Fitzpatrick is completely right in his point.
Amendment agreed to.
Amendment No. 4 not moved.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
(Cavan-Monaghan): I believe we are putting on the Statute Book a dangerous precedent. I hope we do not live to regret it and that it will not be used by future administrations to take further steps towards the establishment of a State which believes that if one is satisfied in one's own mind that a person is guilty he should be put behind bars.
The Deputy need have no fear of that while I am here.
Question put and agreed to.