Seanad Éireann díospóireacht -
Wednesday, 4 Feb 1942

Vol. 26 No. 6

Emergency Powers (No. 139) Order, 1941—Motion to Annul.

Mr. Hogan

I move:—

That the Emergency Powers (No. 139) Order, 1941, made by the Government on the 30th day of December, 1941, be and is hereby annulled.

Conviction and acquittal are but mere incidental matters to a court. The main and fundamental thing in a court is the administration of justice, and the efforts of everybody connected with the administration of the court are directed towards the securing of justice. Those engaged in the prosecution of a person accused of an offence against the community should not strain any evidence at their disposal in order to secure conviction—conviction not being the end, but administration of justice being the end. Therefore, judges jealously guard the methods by which evidence to secure a conviction or acquittal is safeguarded. It has been said often—and sometimes it is accepted—that "the law is a hass", but there is one branch of the law which is pre-eminently removed from that slur and that is the law of evidence. The law of evidence is not a set of arbitrary rules drafted by people far removed from the administration of law and unaware of the pitfalls lying across the path of the accused, whether innocent or guilty, and then imposed willy-nilly upon the court. The law of evidence is a growth, an evolution, and has for its object the protection of people accused and the securing of justice—whether that justice is conviction or acquittal.

The ordinary courts in this State are a very good example of the value of the law of evidence. They give the courts a status in the minds of the citizens which is both desirable and justified. The accused in the dock feels that he has not alone his own counsel or advocate to rely upon but also the protection of a judge on the bench who, acting according to the rules of evidence, can decide whether fair play is being accorded to him or not. It would be highly undesirable to suspend the rules of evidence in the operation of those ordinary courts, but so deeply embedded are the rules of court in the operation and tradition of those courts that you possibly could do it without any great harm. Judges and advocates would probably carry out the rules of evidence even if they were suspended.

Emergency Powers (No. 139) Order is not dealing with the ordinary courts. It deals with another type of court— a military court. This is a court which has not any tradition as a court of justice and no great experience in the administration of justice. I say this without any attempt to reflect on the personnel of the court, who may be very excellent in other ways. But military men are essentially unsuited for the position of judges. They cannot be expected to be experts in matters in which they have not been trained, and by their peculiar training and outlook they are entirely unsuited to weigh judicially the pros and cons of a case. They are trained to secure success by force at almost any cost, and to take risks with men's lives in securing that success, and given a free hand without rules of evidence, scarcely anybody will expect that they will not be influenced by their peculiar psychology, consequent on their training. If it has been found desirable to preserve and to enforce the rules of evidence for so many years, you may be sure it is more necessary to have rules of evidence in a court endowed with such terrible powers as the military courts, and given to men with such little experience.

Contrast the position of a person who comes before one of the ordinary courts on a capital charge and a person who comes before a military court on a charge involving the death penalty. The person who comes before the ordinary court has a lawyer, whose status cannot be questioned, to preside; he has had a training in the law and has had experience in the administration of it. He has peculiar training in that matter. He can apply his legally trained and experienced mind to the decision of any points that may arise as to the admissibility or inadmissibility of evidence, or questions of any kind of evidence. There are 12 free citizens sworn to hold the scales between the accused and the State on matters of fact. He has the right to challenge several of these men before they come into the box. If he has no advocate he can be assigned one, and the court is freely open to the public. Yet, in that court, with all its advantages on the side of the accused, the rules of evidence are strictly observed and jealously guarded. The accused person before the military court has no person with a legal training presiding or taking part in the examination of his case. Three military officers decide on law and fact and permit or refuse certain types of examination. Under the operation of Emergency Powers (No. 139) Order, the rules of evidence need not operate. His counsel may be the most brilliant advocate at the Irish Bar and the most experienced lawyer but, if the rules of evidence are suspended, how can he protect his client?

No rules can be violated if there are no rules. If there are no rules counsel for the accused cannot take the necessary steps to protect him. Take just a sample case. Take a person on a capital charge. In criminal charges the State cannot produce as evidence the character of the accused unless the character has been put in issue by himself. That rule has a long literature of recommendation by experienced judges and advocates. Yet we know that because counsel has simply referred to some charge in the previous character of the accused juries have been discharged, and fresh juries empanelled. The accused is being tried on one indictment. He is not being charged on his life history. That protection is given to him unless his character is put in issue by himself. Yet, in a military court, with the rules of evidence suspended, one can go back almost any length and put the whole life of the accused on trial before three military officers. There is no need to be careful as to how questions are put. There is no reason why leading questions should not be put bluntly by counsel for the prosecution. There is no reason to take the care that is taken in the ordinary courts. Such questions as: "Did you see John Murphy with the revolver?" or "Did you see Pat Murphy fire the shot?" will be quite entitled to be put by the prosecution in a military court. No ordinary court would allow questions of that kind to be put because the law of evidence would not allow prosecuting counsel to do so. If there is no law of evidence to operate, hearsay evidence of the most flagrant kind may be put in evidence. Unsworn and unsigned statements can be put in evidence. In an ordinary court every document put in evidence must be proved.

Yet it is proposed in this Order to put in evidence any document relevant to a charge made by any person or taken down in writing. And in passing I may say I cannot discover from Emergency Powers (No. 139) Order who takes down the statement, although it is stated "taken down in writing." Taken down in writing by whom? The person making the statement may be dead or may be present in court but will not be sworn or examined. The demeanour and the right of cross-examining a witness is denied to the court. His recollection of what he said, his faltering, his stammering, will be denied to the court. Every judge will tell you that the demeanour of a witness at the witness table is in itself a most valuable piece of evidence, and yet that is not given to the court and he cannot be cross-examined. You cannot cross-examine a document. In respect of documents, how many of us can say where we were a month ago? Yet if somebody unknown, somebody at large or in jail, writes a document saying we were engaged in some anti-State activity, that document, unsigned and unsworn, can be taken as conclusive proof and conviction secured on it alone. In the ordinary courts it would have to be proved and the maker would have to submit to being cross-examined. Denying the right of rules of evidence is simply turning the military court into a wild western executive of an experimental lynch law.

Setting up the military court without the rules of evidence is not dealing fairly even with the military court itself. It cannot be called a court at all if there are no rules of evidence to guide it. You may call it a sub-committee set up by the Executive to consider a charge made by order of the Executive and sometimes a type of charge created by the Executive. Is it a committee of three military officers considering a charge made against a person by the Executive? They can do practically what they like in the way of admitting leading questions, hearsay evidence, unsigned and unproved statements. No three men could conscientiously call themselves a court and try cases without being guided by rules of evidence. I do not believe the members of the Irish Bar, who may be prosecuting before the military court, are likely to take advantage of the suspension of the rules of evidence. They will observe them as far as their part of the proceedings may go, but they cannot control the Government in the matter of written statements that are submitted unsworn and unproved.

It is an innovation that is fraught with terrible danger. It will make room, I am afraid, for the agent provocateur to come amongst us and it may bite into our civil code. In the administration of the civil law, documents have to be proved and it is very hard to know, if this innovation is accepted, what may happen in the civil courts. When military men deal with military men in the Army, when a soldier is charged at a courtmartial with giving away military secrets or with cowardice in face of the enemy, the rules of evidence operate though he is being tried by his own comrades. It must be reasonably assumed that military men know more about the code of military law than they do about the criminal code operating amongst the civilian population. Yet, three military officers who would not officiate at a courtmartial at which the rules of evidence were not operating are allowed to operate in a court at which a member of the civilian population is being charged and at which the rules of evidence may be suspended.

I suppose the Minister will tell me that these courts will be held in public. They can be so held but they need not be held in public. Military men have a peculiar idea of what a public trial means. I am also sure that the Minister himself was tried by courtmartial at some time or other. I was and I know what "public hearing" means. The court was held in a low shed, surrounded by military barracks, with sentries posted at every corner. The president of the court had to send out a soldier to stop the rattle of machine-gun practice nearby. That is what the British military thought was a "hearing in public". I wonder what the Irish military think is a "hearing in public".

I know that the Constitution gave powers to set up these courts. I know that they were set up by legislation. The Emergency Powers Act gave very great powers to the Government. Under the Treason Act, whenever a person charged with treason is indicted before a criminal court, he shall be

"indicted, arraigned and tried in the same manner and according to the same course and order of trial in every respect as if such a person stood charged with murder...and shall be convicted and sentenced in the same manner as if he had been found guilty of murder".

I read, not in the Official Report, but in the papers, that the Taoiseach said that if definite evidence was obtained there would be a trial for treason. Does that mean that the fundamental principle, embodied even in the Treason Act, that no person shall be convicted of treason on the uncorroborated evidence of one witness will go by the board? Does it mean that, on an unsigned, unsworn and unproven document, a person can be convicted of the highest charge against the State? I hope that that is not so. I hope that the principle which has survived through all the ages—though it be embodied in British law it may not be so British after all—will not be done away with under these Emergency Powers Orders.

The Government have also got extensive powers under the Offences. Against the State Act, 1940, which gives a Minister of State power, by warrant, to order the arrest and detention of any person. A member of the Gárda Síochána may arrest, without warrant, any person in respect of whom a warrant has been so issued by a Minister of State and that person may be interned during the emergency. These are very extensive powers and the Emergency Powers Act of 1939 gave other special powers to the extent of 16 provisions under Section 2. The final paragraph of Section 2 sets out that the Government may suspend the operation of or amend or apply (with or without modification) any enactment (other than this Act) for the time being in force or any instrument made under any such enactment. That means that the Government is given power to suspend any law except the Emergency Powers Act—even the Constitution under which all laws are made. With these wide powers, one is entitled to ask if a case has been made for the introduction of this Order. I did not read in any Ministerial statement any case to show the necessity for this measure. There is sufficient power already in the Government's hands and they are credited with saying—we can all believe that at one time they did say—that the ordinary law was quite capable of dealing with any outburst of the kind to which they object at the moment.

This motion is not moved at the request or on the instructions of the I.R.A. or any organisation on the fringe of the I.R.A. I do not know any organisation on the fringe of the I.R.A. I have some experience of organisations such as the St. Vincent de Paul Society. I take it that that is not the organisation referred to. The Catholic Truth Society is not the organisation to which reference has been made and I am quite sure Senator Buckley will assure the Minister that it is not the Gaelic League to which reference has been made.

Mr. M. Hayes

You would never know.

Mr. Hogan

These are the only organisations I know much about.

Mr. Fitzgerald

What about the Labour Party? Surely you know something about that?

Mr. Hogan

I know something about the Fine Gael Party, too. The Senator would not like me to talk about that and it might be irrelevant, in any event. This motion is not moved at the request of any organisation of the type to which reference has been made. I should like to say more on fundamental causes in connection with this matter if the general position were different, but I may not go into that at the moment. I should like a general examination of the extent to which we have travelled towards the ideal which we set out to achieve but a definite statement on that cannot be made now, in justice to ourselves as a community. I want to impress on the Minister who, I always believed, was fair-minded and just, the terrible danger of a miscarriage of justice under this Order— the terrible danger of something like what we have seen on at least two occasions in the recent past, where there were miscarriages of justice. A miscarriage of justice in respect of a person tried on a capital charge would be a terribly serious thing and most people would prefer to see a good many people escape justice rather than see one innocent man condemned in the wrong. The Government, I am afraid, has not diagnosed the disease nor prescribed the remedy. I am afraid they have broken a phial of bacilli which are likely to attack the vitals of the national life for many years to come. The risk that you are running in respect of these innovations is too terrible, and I should like to ask the Minister to reconsider the position before putting this Order in operation. The danger is too terrible and it is only history that can appraise the result and apportion the blame.

Mr. E. Lynch

I formally second the motion.

Sir John Keane

Nobody seems inclined to speak on the motion just now. I suppose Senators are reserving their eloquence for a later hour and that they would like to hear some more of the debate before they join in. Listening to the mover of the motion I rather felt as if I were being dragged back to my student days when we used to discuss these questions of the principles of justice in the abstract. Surely the mover lives in a world of reality? Surely he knows what is going on in the country? Surely he knows the dangers that this Order is designed to meet? He tries to picture the possibility of a miscarriage of justice against some innocent person but there is another side to that. There is a miscarriage of justice as against the State, a miscarriage of justice as against the community and a necessity for the Government to protect the community against the organised violence that we know is going on to-day. My view of this matter is that these rules of evidence are conditioned by a certain behaviour on the part of the community. They are conditioned by a long tradition of respect for the law. They are conditioned by the willingness and the readiness, as Burke I think said, of every citizen to be in the last resort a constable should the necessity arise, for every citizen to come forward and regard it as his duty to protect the State and the community. Do these conditions prevail to-day? I understand not. We had it from the Minister that this Order is framed to deal with the conditions of organised crime. As I understand, it is framed to deal with the conditions where when a witness has made a statement which is likely to be produced in evidence and where that evidence is believed to be possibly damaging at the trial of an accused person, the witness is got out of the way. He is either murdered or kidnapped. That is a state of affairs about which we did not hear from the Senator.

We are asked to believe that we are living in a peace-loving community where everybody is anxious to protect the State and the public. A very different condition of affairs exists to-day, as I understand. I think the Minister when he speaks will put us right on that point. The Senator says that he does not know that these conditions exist. Does he not know that organised murder is current in the State to-day? If he does not know it, my information is different but we shall hear the Minister on that later. I have got a strong respect for the law of evidence and the formal procedure of justice, hallowed as they are by centuries of experience and built up gradually, but these rules were intended to meet the requirements of a community where witnesses are not unwilling to give evidence, where witnesses are not coerced, where juries are allowed to function and civilised practices are observed. These conditions do not exist to-day, therefore I feel it is the duty of the Government to protect the community. I do not fear any miscarriage of justice under the operation of this Order. As I understand it, a list of offences has to be scheduled. No case is to come before these courts until it has been examined by the Government and by the law officers. No sentence is to be promulgated until the law officers and Government have seen it and are satisfied that no miscarriage of justice has taken place.

I do not think there is any risk of a miscarriage of justice. We know that occasionally, even under the present rules of evidence, a miscarriage of justice takes place, and I cannot believe that there will be any higher percentage of miscarriages of justice under this procedure than there has been in the past under the protection of the rules of evidence. I think that it is the duty of every citizen to assist the Government in the administration of this Order. Personally I am prepared to vote for the continuance of the Order.

Minister for Justice (Mr. Boland)

I am rather in a difficulty, as if I speak now, many of my statements will form the basis for a debate and I shall not have an opportunity to reply. That is why I was not prepared to get up right away, but I do not see any way out of it. I am not inclined to join in the debate at this early stage; that is my difficulty.

Mr. Fitzgerald

I do not know whether the House would be agreeable to allow the Minister to intervene now and to make his main speech later. Personally I have no objection.

Mr. Boland

Perhaps I might be allowed to explain one or two points now.

Cathaoirleach

If the House be agreeable, that can be done.

Mr. Fitzgerald

I do not see any objection to it.

Mr. Boland

Senator Sir John Keane has put his finger on the main point on this question. He said, quite truly, that Senator Hogan was dealing with the question in the abstract and spoke as if he were not living in this country at all, as if he did not know what the situation here is. I can assure Senator Hogan and every other Senator that it was with the utmost reluctance we interfered with the rules of evidence. I am prepared to say what I said in the other House, that considering all the other drastic powers we have—I must say I did not qualify it in that way— this change was not such a drastic change. I think Senator Hogan seems to think that these statements when they are signed, even though they may not be sworn statements, are to be accepted as conclusive evidence. That is not so at all. What is provided is that these statements will be put in evidence and they are to be treated by the court for what the court thinks they are worth. That is the position. There was a question as to whether these courts could not, under the existing powers, accept such statements, seeing that they have power to regulate their own procedure. I do not know about that, whether they had or not, but one thing I do know is that the Attorney-General or counsel representing him would not attempt to put in evidence anything that could not be properly put up in accordance with the existing rules of evidence. The result of that would very easily be, and I believe has been and may be in the future, just what Senator Sir John Keane has suggested—a grave injustice to the people. I agree with one statement that Senator Hogan made, that the main thing in the court is to secure that justice is done. I think he said that, and I thoroughly agree with him, but justice has to be done to the people as well as to the accused, and in the situation in which we find ourselves, we think it is absolutely necessary that all the circumstances surrounding these organised crimes should be fully investigated and that the court should be free to set whatever value they wish to set on statements of the kind put in. It would be absurd to suggest that they should be taken as conclusive. I never suggested that for one moment.

Mr. Hogan

They can be.

Mr. Boland

If the defence does not make its case and if the court wishes to do it I cannot see them doing it. They have ten years' experience and surely they are not going to accept as conclusive a document that may be unsigned, in a case where a witness is not present, unless they are absolutely certain that the statement is a correct statement and worthy of acceptance by them. It is nowhere laid down that it should be accepted as conclusive. It is no good starting off assuming that is the proposition, because it is not.

Mr. Hogan

I do not wish to interrupt but I want to have it clear from the Minister that if a document is put in, fulfilling all the provisions set out in this Order, that will not be taken as conclusive evidence. Must it be corroborated? Must there be corroborative oral evidence?

Mr. Boland

What I am saying is that the court can put what value they wish on that statement. It is one of the factors that will be taken into consideration at the trial. The court may take it as evidence that ought to be accepted and is conclusive and, if they do, they may accept it, but it is a matter entirely for the court. That is all I have to say about it. On that point we simply say that that document will be given whatever value the court sees fit to put on it. I do not say that is an unreasonable thing in the circumstances such as we find here to-day.

In the other House I was asked to make a case for this. I did not quite understand what case I was expected to make. One of my colleagues, the Minister for Local Government, afterwards recited a number of things that had happened in the past. I did not wish to do that because I felt everybody in the country knew what the situation was. Some of the cases that he mentioned have been dealt with in the court; people have been brought to justice. Others have not been dealt with at all. There were some very serious crimes that could not be dealt with and I was not suggesting that we could deal with them under this Order. How I came to mention that and that external business was that one of the members of the Opposition, Deputy Costello, challenged me to bring this Order under the Emergency Powers Act. He read out the Long Title of that Act and said the Government should show that they were entitled to bring in this Emergency Powers Order, should show that it came within the scope of the Long Title of that Act and I then drew attention to some things that have happened. I did not deal with them at great length because I felt everybody in the country, and particularly every public representative, was quite familiar with what has happened in the last few years and that it was not necessary for me to make a recital of what has happened.

In some cases undoubtedly, in regard to the things that happened, people were brought to book but in others they were not. I was not suggesting that this Order would help us in those cases. This Order will only help us in cases such as are set down in articles 3 or 4, where we have a statement made voluntarily and taken down in writing and acknowledged. If the person who makes the statement can be brought into court—I am perfectly certain he will be brought into court—perfectly certain—and, if he is not brought into court, I cannot imagine the defence not wanting to know why he is not brought into court or I cannot imagine the court itself not being very anxious to know, and not insisting on knowing, why the witness is not present. But we all know that a witness may be dealt with in some other way; he may be abducted or, possibly, killed. That is not a thing that anyone who lives in this country at the present time thinks to be impossible, and this was in order to make provision for such a contingency and to remove the temptation from those people who are engaged in this organised crime to abduct or kill witnesses, to let it be clear to them that even though they did succeed in doing away with any witnesses, nevertheless a statement that may have been made by any one of those witnesses could be put in in evidence. That is why the absent witness was provided for and for no other reason. There is no use in people drawing on their imagination, as was done in the other House, and setting out cases that are not going to arise. There is no good in people doing that at all. The duty of everybody here, I submit, is to face the realities of the situation and to remember that these things have happened and are happening.

To get back to the state of the country, I am afraid there was a false impression created as to how dangerous this organisation is. First of all, its numbers are not very large, but certainly they are very dangerous people, who are prepared to stop at nothing. Deputy Norton challenged me to say that the situation was worse now than it was when the last Government brought in Amendment of the Constitution (Article 2A) Act. I said that in my opinion it was much worse, due to the fact that we have a world war raging all round us, and that this organisation at one stage—they have not been able to do much about it lately—took on itself to declare war on one of the belligerents and tried to give effect to that.

Mr. Fitzgerald

Was that after war was declared?

Mr. Boland

Before. But, as far as they were in a position to continue it, they have never changed that attitude.

Mr. Fitzgerald

It become too dangerous for them.

Mr. Boland

That is right. I believe that was the most disgraceful thing that ever happened in our history. I do not think that Irishmen ever engaged in such a disgraceful campaign as that.

Mr. Fitzgerald

They ran away when it got dangerous.

Mr. Boland

That was the organisation that did it and what they have done, I think, is pretty familiar to everybody. One of the proofs that things are worse than they were in 1931 is the fact that we have between 400 and 500 people interned. I do not know how bad the situation might be if these people were not interned and if we had not the power of internment. We got that power. We had to get it. Nobody challenged it. If we had not those powers, I do not suppose there would be one-tenth of those people under control now. They would be all out on the loose and we could do nothing with them. Similarly, I am satisfied that if witnesses are not to be intimidated, if they are not to be abducted or perhaps shot, it would have to be made clear to those people who may undertake murder or any other of those crimes that the fact of removing the witness is not going to count; as far as the court is concerned, they will be free to take any statement the witness may have made.

I find myself in this position that, instead of replying to speeches made here, I have to reply to some of the points made in the other House, but I do not see any way out of it. Some of the speakers in the other House, to my amazement, seemed to be surprised that we brought in this Order, because murders had not been much more frequent than they have been. I was surprised at the people who said that. I was asked by two members of the Opposition to say how long it was since these murders took place. Unfortunately for ourselves, we have more than one ordinary murder in the year but that is a thing that cannot be controlled. As long as human passions are there we cannot control that. They are generally dealt with. But I think it would be a terrible thing if this organisation, which has succeeded over the last 18 years in getting away with about 14 or 15 undetected murders, were allowed to be continued.

Mr. Fitzgerald

Much more than that.

Mr. Boland

At the very least that. If they were to be allowed to continue to kill even one person in two or three years with the absolute certainty that they were going to be immune from any punishment I think that would be a terrible thing. My reply to the people who asked me that question was that we do not know how many may be on the list for this year. They may have only wanted to kill one last year and surely to goodness we are not going to let them away with that, that when a body like that takes it on itself to kill some citizen then it will surely have to pay the penalty. We can make certain of that, and we can ensure that when sitting down to take a decision they will have to say: "Well, who do we want to do it? Who will pay the penalty for this crime?" Up to now they could say: "We will get so-and-so to do it—to kill this fellow—and it will be quite safe, because no witness will come forward as they know what they will get." That is a most dangerous situation, and a far greater danger to this State and to any State than not to preserve these rules of evidence that have come down from years of experience, and that were designed to deal with situations such as were mentioned. They were a kind of reaction to judicial cruelty of a couple of hundred years ago, when accused persons got no chance whatever, all the dice being loaded against them. All right-minded people wished those accused to get a fair chance. That was in a state of society where people always were anxious to see that people who committed serious crimes of that kind would be made amenable.

Unfortunately, in this country at the present time there is no such situation. Very few people will venture giving evidence; whether they wish to do it or not, very few will do it, and certainly it will be difficult to protect those who do so. I do not know how they are going to do it, but we are not going to let this I.R.A. organisation intimidate, as they have been doing, people who would give evidence. If justice is to be done witnesses ought to be allowed freely to come forward. We objected to the last Government when they brought in these claims. We thought that other methods should be tried first. They have been tried since, but I am not satisfied that they have been a success. I think the powers given under Article 2A were absolutely necessary. Trial by jury was done away with then, and I do not think Senator Hogan would suggest that in cases like these trial by jury should be resorted to, because everybody knows that it would be impossible. The same thing is true of the present situation. There is no such thing as a witness being free to give evidence without being intimidated. We know the intimidation is of a most serious kind, and therefore this Order is absolutely necessary.

There is one section here, Section 5, which I know has given rise to a great lot of comment. It is the section that Senator Hogan was thinking about when he was saying that any statement at all could be taken or any kind of evidence brought in. That was really assuming that the State counsel would try the case. But I can say quite definitely that what the Government wants is set down clearly in Sections 3 and 4. That is the limit of what the State wants, a document which conforms to the standard set down there, one made voluntarily under an enactment and taken down in writing and acknowledged by the person who made it. Anything else that comes under Article 5 may, as I think the Chief Justice said, be used to the benefit of the accused or in any way the court likes. The real reason that that was put in was in case some little flaw might be found by some counsel in the drafting of Sections 3 or 4. It might be only a trivial thing but it might mean having to go to the Court of Appeal or to the Supreme Court; and the idea was to copper-fasten those two sections by bringing in Article 5. Undoubtedly, if you had an unscrupulous court that would do anything it was told to do, an unscrupulous Attorney-General who would stop at nothing to get a conviction, and an unscrupulous counsel—well, anything could be done under Section 5. But under any Attorney-General that can be visualised, or any Government that I can visualise, nothing like that is likely to happen at all.

Talking in the abstract you can make a case against it, but as public representatives we are not entitled to talk in the abstract; we are bound to take full cognisance of the circumstances in which we are living, and to realise that a big duty rests on the State in this matter to see that the lives of the people are protected and that the State itself is protected; because people engaged in this sort of work did try their hand at something bigger. As Senator Fitzgerald said, they ran away from that, but opportunities may arise again when they would try their hand at something which would jeopardise the State. I do not think in circumstances like that, of extreme danger, that the State's hand ought to be tied, and that it ought to be asked to conform to rules of evidence that were made to deal with an entirely different situation. I want to emphasise these points, that statements than can be put in are not for one moment to be taken as conclusive, but that something of the background in the statements may have to be considered. What the Government want is set down definitely in Sections 3 and 4. Whatever may be in Section 5 can be used to help, and probably will be as much to the benefit of the accused as to the prosecution. This court is a summary court, and it is meant to deal with crimes that should be dealt with summarily. There is no doubt about it, there is an element of terror in this court, because it means that when a crime is committed, a crime of violence, in the present emergency—and remember it is only an emergency measure coming up for review every year, and is due for renewal in September next; there is a certain amount of terror in it; because the Oireachtas was satisfied that summary measures were necessary to deal with crimes of a certain kind. These crimes are all set out in the Schedule. I think there are ten of them at present, and they can only be added to by making an Order which must be placed on the Tables of both Houses. If the Schedule is added to it may be annulled just the same way as the present Order might be annulled if the House so decided.

Mr. Hogan

The Minister should be fair to himself. Did he say that a written statement, unsigned, would not be taken as conclusive unless it were supported by oral evidence?

Mr. Boland

I did not; I said it might be—it could be.

Sir John Keane

Will it be open to the defence to bring before the court all the circumstances in which that statement came into being and bring out any points in relation to the origin and nature of that statement?

Mr. Boland

Certainly it will. What I said was that if the court were satisfied that this should be accepted as conclusive, it may be, but it is not laid down here. It may be taken for what it is worth and, if the court does not think it is worth the paper it is written on, they can simply throw it out. That is entirely a matter for the court.

There is no foundation at all for saying that this lays it down that unsigned statements must be taken as conclusive evidence. That would be entirely wrong. It may possibly happen that the court may say that the statement has the mark of truth. If the witness cannot be got— and the court is not going to take the statement if it is possible to produce the witness—or if the witness refuses to give evidence and stays mute, then the court will be able to make up its mind what to do. A man may come who has made a statement, and then may give no answer. All the rights of the defence are still there: they can cross-examine, and do all they are entitled to do up to the present.

Mr. M. Hayes

On this matter of the time limit, is it not clear that this Order would last no longer than the Emergency Powers Act, and that that Act must be renewed so as to be law again in September, so that the matter will come up for discussion in the other House again in September, that is, in about six months?

Mr. Boland

Yes. The Dáil adjourned some time at the end of June last year, and, as it was not likely to meet until after the Emergency Powers Act would be due for renewal, it was debated some time in June. Probably that would be done this year. If the Seanad or the Dáil does not want it, they can reject it.

Mr. Fitzgerald

At any rate, it must be done before September?

Mr. Boland

Yes; otherwise it lapses.

Mr. M. Hayes

And the Order must come up for review by both Houses within six months?

Mr. Boland

That is correct.

Mr. MacDermot

May I move that the House do now divide?

Cathaoirleach

The seconder has reserved his right to speak, and the mover has the right to conclude the debate.

Dr. Rowlette

The House would be treating a very important question with very little respect in accepting the motion that Senator MacDermot has just moved. I think that he was not serious in moving it, but did so in order that members of the House would be stimulated to express their opinions. Some Senators are reluctant to express their opinions, as we have not had an opportunity to study the case which has been made for or against the Order now under discussion. I had to draw the attention of the House a few weeks ago to the fact that the House was asked to meet and discuss important matters without an opportunity to study them.

The attention of the members of the House is only drawn to most orders by the Press, and it is impossible to study all the orders laid on the Table of the House. It is only when particular attention is drawn in the Press to an order that there is a practical opportunity to study it and understand its terms. No doubt, that is due to conditions in the way of economy as regards distribution of printed matter, but I think it is unfortunate that the Legislature should be hampered in its work by a purely economic provision of that sort. In the second place, most of us who had open minds about this Order would have been glad to study the case for it made by the Government in the other House a week ago. References in the Press cannot be taken as complete or as completely accurate, however full they may be. We had no such opportunity on this occasion, because of the long delay in issuing the reports of the Dáil to members of this House—and, I suppose, to members of the other House. That is definitely hampering the work of this House, and preventing us from giving due consideration to one of the most important questions before us, and one of the biggest Constitutional questions which have come before the present Seanad.

I think it is incumbent on those who are responsible for the issue of proceedings of both Houses to the members of the Oireachtas to take such steps as will ensure that those reports are issued at a time when they will be useful in debate, and for consideration in the minds of members before the issue is finally disposed of. The report of last weeks, as far as I know, has not yet reached members. Certainly, it did not reach me, although I took the trouble to remain late for this meeting of the Seanad in the hope that it would be delivered by this afternoon's post. My only knowledge of the report is through the kindness of an officer of Leinster House, who lent me his personal copy to read over. I have not had time to read it over very thoroughly. There must be many other members of the House in the same position. In view of that additional fact, it would be unfortunate if the Seanad did not take the matter more seriously than Senator MacDermot's proposal would suggest, and give due consideration to this matter.

Before setting out to deal with the Order, may I say that we all have great respect for the sincerity, earnestness, and humanity of the Minister, and we know that he would not lend himself to any procedure likely to endanger the administration of justice. The main argument in favour of this Order has been put forward by the Minister in the speech he has just made and in his speeches in the Dáil last week, and also in the Dáil speech made by the head of the Government. There are various points in those speeches that one would like to study, in order to see their bearings on this question. If I do not give these points in order, it is due to the condition of ignorance in which the Seanad is being kept. In reading the Minister's speech in the Dáil last week and in listening to his speech now, I quite accept his determination and wish that justice should be done, both to the community and to the accused person, as far as possible, but at the same time he seems to take the attitude that when a person is accused he is guilty. The Minister will not admit that, of course, but he says that in so many words, and if he looks at what he said to-day or on the other occasion, he will see that that mental attitude does underlie his viewpoint in this matter. He used this phrase last week—I think I have it accurately—when speaking of certain offences that had been committed, or the implication of certain persons in certain offences: "I could not prove that in court, but I am certain that it is a fact."

Mr. Boland

On that point, if the Senator allows me, I would like to point out that 400 or 500 persons are interned at the present time and they would not be interned if we could prove a case against them in court. That may be very unfortunate, but it is a fact we have to recognise. We know about the thing, but we cannot convict and, for the safety of the State, power has been given to intern without trial.

Dr. Rowlette

This is not the first time that hundreds of persons have been interned, and many were let out without trial and I am wondering— though it is hardly relevant—whether these people are the same as those interned to-day. I do not know whether the Minister would give any information on that point, but it would be interesting, historically, to know. But I go back to the phrase I quoted from the Minister which I think is correct. I certainly do not wish to misrepresent him in the slightest degree. The phrase was: "I could not prove that in court, but I am certain that it is a fact." That is definitely a suggestion that where the Minister is convinced in his own mind that such and such people are guilty of certain offences that would have to be accepted. That assumes their guilt. In anything I am saying, or in anything I am going to say, I do not wish to assume in the slightest degree anything against the honour of the unfortunate persons who may be called upon to constitute this court. I am sure they are going into it with the determined intention of doing justice by the accused person as well as by the community as a whole. By this Order they are being deprived of the instrument by which they can arrive at the truth. The Minister at another point said that he wanted a full investigation, but under the Order a full investigation can only be made by the prosecution. Through the admission of documents which are not proved and which are incapable of being proved, no doubt through causes for which the Minister is not responsible, the defence has no opportunity of questioning these documents. They have not the power of cross-examining the person who is alleged to have made the statement. They can no doubt cross-examine the officer who has taken the statement as to the conditions under which he took it, but they have no power of cross-examination in the ordinary sense of the word.

Sir John Keane

What about the witness who is dead?

Dr. Rowlette

The interruption seems to me quite irrelevant to the present issue. As long as we know the administration of justice in this country, we know that a document could not be presented in court without some evidence to show whether it was a genuine document, or by cross-examination of the person who made it, if such a person was available. That has been accepted over and over again as a rule of court, as a legal principle. I think both these terms were applied to it by representatives of the Government, but I think they are a great deal more than legal rules. I think it should be regarded as a principle of justice that nothing can be admitted as evidence which is not evidence according to the well-established principles of justice. It is unfair, I think, to suggest that these are the inventions of lawyers. In one sense no doubt they are the inventions of lawyers, as it was said they were the decision of lawyers, to protect persons accused against the cruelty of courts and the cruelty of judges. I am not suggesting that such a thing is necessary now, but they have been accepted for centuries for principles of justice and as underlying the giving of evidence. They are not mere legal rules.

A lot of time was taken up in the debate in the other House criticising other legal rules which may or may not be principles of justice, and it seems to me the stress was laid on these rules because they were irrelevant. At any rate, it was open to suspicion that stress was laid on them because they were irrelevant. The issue whether an accused person should be warned about statements he made was raised in that debate, but there is no relation between the two. This item of the law may or may not be wise. The issue in this case is a much greater one than the other issue which was debated at considerable length. In another court not uncommonly quoted, though not as an authority, it was laid down that "what the soldier said is not evidence", and what an unverified statement says should not, in my opinion, be regarded as evidence either. The House, I think, was very interested in the conversation that took place a few minutes ago between the Minister and Senator Hogan, as to the exact meaning of the phrase giving power to the court to accept as evidence such and such a statement, and as to what weight should be given to it. The Minister's statement was that that would lie with the court, that the court could reject it as untrustworthy as it could reject the evidence of a witness brought before it, and as in the ordinary court it can warn jurors against accepting the evidence of a witness. But on the other hand it could accept it if it believed the statement to be true and good evidence. But this Order, to a very great extent, deprives the court of the possibility of testing whether the statement is true or not.

The Minister made the case, with which we are all in agreement, that we would not expect that the legal advisers of the Government or the police officers of any rank would set out to concoct or fake a case against any person. I do not think they would. I am quite in agreement with the Minister that that is not likely to happen, but I think there ought to be precautions, and that the law ought to take such precautions as would make it possible for such a thing to be detected if it did happen. Under this Order if such a thing did happen it could not be detected, because the court is deprived of the means of proper investigation into the case against the accused. The Minister says he wants full investigation, but I suggest he is preventing full investigation by this Order, by admitting documents which may not be regarded in any ordinary sense as evidence.

I am not at all impressed by the statement made by the Minister, no doubt in good faith, that this is a purely temporary measure. We have knowledge that temporary provisions of law have a tendency to persist and that laws brought in as purely temporary measures very often become permanent. It may be within the memory of the House that when the income-tax law was first introduced in Great Britain it was regarded as a purely temporary emergency. I doubt if there is any statute, British or Irish, on the statute books which is less likely to be taken off than that concerning income-tax. It is an annual affair, from year to year, but that only gives it a chance of being raised every year.

Temporary provisions for various causes tend to persist, and when we are told that this Order will come up for renewal at the end of six months it does not give me any more confidence in the propriety of making it law at the moment. Making it law for six months carries a certain implication with it. I am not putting it forward as my own view, but it must occur to a large number of people that this Order was specially brought in with reference to a particular case and against particular persons. That would be a very disastrous notion to take possession of the public mind, and very grave damage will be caused if it does take possession of a large portion of the public mind.

Play has been made with the fact that it is the law. That is not contested, nor is it contested that the Government has the right to proceed in this way. That is not contested by any clear-minded person, but the Government should bear in mind that there are many things they have a right to do, just as there are many things which individuals have a right to do, which they would not be right in doing. It is not a question of what is legal or of what the Government has the right to do. It is a question of what the Government would be wise and statesman like in doing. The issue of legality was settled by the highest court and is not open to question now. Whether it is wise to act upon it, is another question that brings in statesmanlike considerations. I was lately given a quotation by one of the wisest of Irishmen in the past—Edmund Burke. He said:

"It is not what the lawyer tells me I can do but what justice and policy tell me I ought to do."

I foresee, in the carrying out of this Order, the possibility of great injustice being done to individuals, without any conviction that it will put an end to the state of lawlessness which the Minister and his colleagues tell us exists.

It is the duty of those who are charged with the administration of the law not merely to carry it out justly but to carry it out in such a way that it will be recognised by the public as just. If this Order is effective, I doubt if it will be regarded by the public, generally, as just. I was glad to see that, last week, the Taoiseach insisted upon much the same point as I am insisting upon now—that the Government must have public opinion behind it. Public opinion is a very fickle thing and may change very rapidly. Although there may be a certain amount of panic or disturbance in the public mind at present, I think that the more frequently this Order is put in practice the more the people of the country will rebel against it. They will not have confidence that justice is being done. I am not suggesting that the court set up in such cases will not, so far as it is capable, do justice, but I am afraid it will be hampered in the doing of justice by this Order. In certain cases, in other countries and, probably, in this country in the past, the feeling that the penalty for certain offences was unduly severe, in the public view, prevented convictions where the persons accused were known to be guilty. When the public regard sentences as out of all proportion to the immorality of the offence charged, they refuse to convict and confidence in the administration of the law is damaged.

I call to mind a personal incident of over 20 years ago when I felt it my duty to urge this consideration on the officer who was in control of the British military in this country. In company with another member of this House and other reputable citizens of the City of Dublin, we thought it our duty to wait on the general officer commanding the British Forces and ask him to reconsider a case in which a young Irishman had been convicted of participation in murder and condemned to death. To our minds, this young man was not guilty of the offence imputed to him. We put the case before General Macready. We urged him to consider not only whether the military courts were doing justice, according to the law, but also to consider whether the people recognised that they were doing justice. In that particular case, we said that we thought the public would not, be of that opinion. General Macready gave consideration to the case. I think that it was greatly to his credit that he did so, after sentence had been given. He made a personal investigation and examined some of the witnesses himself. The sentence was commuted and the young man is, I believe, alive to-day.

I would make a similar appeal to the Government of to-day—that they should consider not merely whether, in the Minister's opinion, justice is being done by punishing those whom he, his colleagues and advisers regard as guilty, but whether the people of the country are convinced that justice is being done, and that injustice is not being done. I have studied, so far as was possible, the case made for this Order, with a quite honest wish that I should not say anything to-day to embarrass the Government or put difficulties in their way. I found myself entirely unconvinced by anything the Minister or his colleagues said as to the necessity for, or wisdom of, this Order.

Mr. E. Lynch

I listened with very great interest to the Minister's statement. I thought we would have got considerably more information and data from the Minister in support of this Order. Perhaps he intends to give us more information at a later stage, but I could not help feeling that, if the Minister had a stronger case, he would bring it out now, so as to influence the House in its deliberations. I noticed that the Taoiseach, speaking in the Dáil on this issue last week, said: "I am not asking for this Order on the basis of the statement made by the Minister for Justice about the present situation with regard to danger from outside." It would seem from that statement that the Taoiseach and the Minister are not of the same mind in demanding this Order from the Oireachtas. I was not impressed by the case for the Order made by the Minister. Senator Hogan, in moving the motion, pointed out—quite satisfactorily, to my mind—that the Government have already sufficient powers at their disposal without seeking further powers, as they are doing under Order No. 139. The suspension of the ordinary rules of evidence is a serious matter. Reference has been made by my colleague, Senator Hogan, to the seriousness of that aspect of the Order. Senator Rowlette has, in a very reasoned statement, also referred to the seriousness of suspending rules of evidence which are so vitally necessary to any juridical system whatsoever. Order No. 139 is of extremely serious import and dangerous to those who may be brought before the military court.

The Minister has thought fit to advert merely to one aspect of the case. I propose to deal with other aspects of that case which have not been mentioned here up to the present, and I do not think they have been mentioned in the other House either. It is possible they may have been mentioned there because we have not had time to study the report of the proceedings in the other House. It did not come to us until this morning and it was only by courtesy of certain people here that some of us have been able to see it at all. Order No. 139, in my opinion, has to be related to Emergency Order No. 41 of 1940. It is under that Order that the Military Court is set up and entitled to function. Special reference must be made to the Schedule of that Order because it deals with many matters other than the matters referred to by the Minister in his statement. In the second article of this Order we have the expression "specified offence".

It means "any offence set out in the schedule to this Order which is alleged to have been committed after the passing of the Emergency Powers (No. 2) Act, 1940." Under Article 4 of the same Order where a person is alleged to have committed a specified offence, "such person may be brought before a military court and such military court shall have jurisdiction to try such person for such specified offence and to order such person to suffer death by shooting."

We turn to the Schedule of this Order and we find it deals with many other matters besides treason—for instance: "the obtaining, recording, or communicating in any manner likely to prejudice the public safety or preservation of the State of any information directly or indirectly prejudicial to the State." It refers specially in Article 3 to: "the doing of any act or the omitting to do anything on the part of a person who is under a duty either to the public or any other person to do, with intent to impair the efficiency or impede the work or repair of any vessel, aircraft, vehicle, machinery apparatus, or other thing used or intended to be used for the purposes of the Defence Forces or for the purposes of any undertaking engaged in the performances of essential services so declared by the order of a Minister under the Emergency Powers Order, 1939 (No. 24) of 1939." It goes on: "unlawfully wounding or causing grievous bodily harm or shooting at with intent to maim or do some other grievous bodily harm or with intent to maim or do some other grievous bodily harm, with intent to resist or prevent a lawful arrest." Article 6 deals with the assault, unlawful imprisonment and detention of any person against the will of such person.

In regard to Article 5, which I have read out, we have many private citizens who are engaged in subsidiary military occupations. You have civilian employees of the Board of Works and private contractors who are from time to time called upon to perform work of semi-military character, provision for military work, etc. These persons in their ordinary avocation and calling, may operate their rights to suspend their ordinary working activities when engaged on such work. In trade union parlance, they may go on strike and, should they be engaged in such occupations, they will come within the ambit and scope of this Schedule of this Order and may be brought before the military court and dealt with by them. Again we have often seen cases of ordinary assault occurring in this country. Unlawful imprisonment has taken place in this country on some occasions in the past and it has been dealt with by the ordinary procedure and the ordinary courts. Yet under this Order, any such act can be dealt with by the military court. Accused persons will then be deprived of the protection which the ordinary law of the land gives in the ordinary rules of evidence. That is an important part of the structure of the legal code of the country and where it is suspended, as it is definitely suspended by this Order, such persons are placed in extremely grave danger. The protection which should be extended to them is withdrawn and while they have not been engaged in offences such as those referred to, or merely instanced by the Minister here this evening, they have nevertheless been engaged in acts that have been constituted offences by the earlier Order to which I refer. If they are proved guilty they will be dealt with under the regulations governing the military court and will be summarily disposed of.

That the rules of evidence should be suspended, that the documentary statements put in should be unsupported, that there should be nobody able to examine the authors of these statements on the matter contained therein, is abrogating one of the most important safeguards which a citizen has when he is brought before any court. When one considers the variability of testimony offered by human beings, one realises the grave danger involved in the subtraction of such protection. It is a well-known fact that a dozen people looking at the same incident have given different statements of their impressions of that incident to the courts. Consequently when written statements are put before this court, it is of the most vital necessity that the persons making these statements should be present so that they may be examined on what they have stated in documentary evidence.

There is no necessity, I am sure, to delay the House with a recital of the great number of cases that have occurred in which individuals have suffered a miscarriage of justice on circumstantial evidence, cases even in which the whole legal procedure was in operation. If that be the case, how grave is the risk to those who may be brought before this court, when that protection is removed?

Judge Hanna, speaking on such a type of case, saw the danger of submitting to a court of non-lawyers even sworn evidence which was not relevant. He said:—

"Those who have no legal experience or little experience think that criminal law and the law of evidence as to criminal offences are simple and clear whereas, in fact, they are most technical and difficult. The decisions of the Court of Criminal Appeal on such subjects as accomplices, corroboration, evidence of previous offences or character, the admissibility of statements made to the police, the doctrine of reasonable doubt and other technical questions show how easily these small and inexperienced lay tribunals can go astray and pass conviction and sentences that would not stand the slightest legal consideration."

There you have the opinion of one of the ablest of our legal men in this country as to evidence of that kind. Many other cases have occurred in this regard and the Government should seriously consider whether what they are doing in this Order, where they propose to suspend these safeguards, may not do more harm and rouse up more danger and difficulties for themselves than they propose to allay by the use of this Order. That, I think, should be a serious consideration for them, and one they should take serious note of.

The Taoiseach, finishing up his address in the other House, said in regard to this Order:

"I think the best way to meet this would be to let the thing pass"—that is, I presume, the Order—

"and if you want to have a review of it within a certain time of its operation—say, within a period of six months—we would be quite prepared to have it reviewed."

Would it not be far more advisable, in view of the fact that there is already sufficient legislation at the disposal of the Government to deal with the case put forward by the Minister, to annul this Order and wait to see if there is a greater necessity for it, because many are convinced that the necessity is not as serious as the Minister says it is? I could not help being impressed by the statement by Deputy Costello, who has a long experience of courts as a lawyer operating in the courts, as an ex-Attorney-General, and generally a very skilled lawyer. In a statement in the Dáil, he said that the Government would have to make a very strong case, a fully-proved and satisfactory case, before he would cast his vote against the motion, and I noticed that in the division Deputy Costello did not vote with the Government. Therefore, it would seem that he was not impressed by the case made for this Order.

The suspension of the rules of evidence is extremely serious. Senator Hogan said it is a precedent, and may pass outside the orbit of the court referred to in this Order, and may become incorporated in our general legal structure. It is a dangerous precedent to establish in any court and in any country, and the case for it would have to be far more seriously made and supported by far greater data and documents to satisfy some of us that the Order is necessary. That case, in our opinion, has not been made up to the present.

Mr. M. Hayes

I find myself in the position of agreeing with a great deal that has been said by the mover and seconder of this motion, and with what has been said by Senator Rowlette. I think, also, that the Minister has made a very honest case for his own position, although not a very detailed one. In the first place, there can be no doubt that the powers taken by the Government in this Order are drastic. I think the Minister said they were not so drastic when you compare them with other powers the Government has actually got. I would not agree with that. I think, no matter with what you compare the powers given in this particular Order, the powers must be deemed to be drastic. They are greater than the powers that were taken by any previous Government to deal with this particular type of menace at any stage of its manifestations before. It is lamentable that, after twenty years of native government, it should be deemed necessary by a Government to take these powers. At the same time, I think it might be indicated, for example, to Senator Rowlette that the powers are permissive. Senator Rowlette said that the Order prevented the court from finding out certain things. The Minister pointed out, and I think it is perfectly true under the Order, that the court is not prevented from hearing oral evidence or asking for any kind of corroborative proof which the court may deem necessary, but the court is undoubtedly, under the Order, relieved of the necessity of getting what has always been deemed to be evidence.

Any statement such as the Minister made in the other House—I notice he did not repeat it here—that the rules of evidence are technical things which are in some way invented by legal people, and are mysterious and removed from the ken of the ordinary man, is quite unsound. The rules of evidence are by no means mysterious, although some of them may be technical, but they certainly are nothing more or less than the necessity for proof. They simply mean that if you accuse somebody of a particular thing you must produce a certain type of proof. And that the rules of evidence under English law are sound and good and desirable I think is also beyond all doubt. At the same time, our position is that a Government here which, as the Minister very honestly and fairly said, at one time opposed any kind of departure from the ordinary law in dealing with this particular organisation, the I.R.A., after having tried other methods and after having been ten years in office, now finds itself taking and supporting and asking for more drastic powers in this particular direction than were asked for by its predecessor in title. That, I think, indicates a mishandling and failure on the most vital of all our fronts. If we cannot have agreement in this country, and enforcement if it be necessary, that in this State there can be only one Government, then we can make no progress on any front at all.

People are interested here in the political education and the political progress of our people; that they should take more interest in Government, that we should be able to be the model—as is sometimes in moments of optimism said—for other countries. People are interested in economic progress, and some of us are interested in cultural progress, in the progress of the Irish language, and other aspects of that particular kind of thing. There can be no such progress at all in this country until we arrive at the situation in which there can be only one Government, and that no other person or body of persons can claim to be the Government. The essence of the Minister's case is the case that was made before for other measures not so drastic, that there is in this country an organisation—there is no use in calling it a criminal organisation, because the words do not precisely fit— an organisation, whatever its motives, which is not hampered in its methods, which observes no rules of evidence, which observes no rules of any kind and which claims to be the Government of the country and to exercise powers of life and death over citizens. In that situation it seems to me to be clear that a Government could not rely in their entirety on the ordinary rules of evidence. So that, as far as I am concerned, I agree in principle that there must be, to deal with that kind of conspiracy, a departure from the laws of evidence which obtain in England to catch a criminal against whom every citizen's hand is raised and who, even though he may belong to a gang, does not belong to a powerful organisation and has no history behind him.

The question we are called upon to resolve this evening is, whether the Order made by the Government in this particular instance carries us too far, and on that I think we simply have to be guided by the situation in the country. We cannot discuss the matter, as the Minister himself said, on an abstract basis.

Governments if they observe the ordinary rules of law and evidence are not in the position to meet certain things such as I alluded to here on a previous occasion in another context— the story about madraí ceangailte agus clocha scaoilte—you cannot have dogs tied and stones loose. Neither can you have stones tied and dogs loose. I think it is all the same whichever way you put it. In any event, you cannot combat the people who observe no rules, and who give no trial, by particular adherence to the excellent rules of evidence handed down to us. The Minister stated that there are determined people in the country claiming power of life and death, and claiming as we all know they did claim, power to declare war on behalf of this country, and having contact with one of the belligerents. If that is so, it is a very serious situation. Granting that that is so, and granting that the Government does clearly intend to grapple with that kind of thing, I fail to see how, not having the responsibility for government myself, I can stand in their way; and therefore, with a certain amount of reluctance, and with no very great belief even now, in the bona fides of the Government—I am not speaking of the Minister himself personally—to go forward in this particular direction, I feel they ought to get the powers they ask for; but I would like to agree with Senator Rowlette that this power should not be used against individuals, selected individuals, but used impartially against persons who are endeavouring to upset the State.

From no inside information whatever, but from merely reading the newspapers, one does gather that it is possible for AB to get away with something for which CD is heavily punished and perhaps executed. That state of affairs should not exist. The question has arisen about the military court. Senator Hogan was quite sound in saying that we are not discussing the military court now, but it would be relevant to say that while military officers have no knowledge of the technical rules of evidence, they have common sense and common honesty, and they are doing a job now which judges have refused to do, and cannot be got to do. Members of the legal fraternity, I think, should advert to that fact—that I am clear myself but it is a fact—that the resort left to the Government is nothing but a military court. I think I observed in the course of the proceedings a statement, possibly improperly reported, that this meant trial by the Dáil. I do not think it means trial by the Dáil, or by the Seanad either; that would be a very lamentable thing. We ought to have a clear statement from the Minister himself that it is intended to exercise these powers only with regard to particular organisations whose aim is the overthrow of the State. The military court, for example, was used in the past against farmers or strikers who did a very stupid thing——

Mr. Baxter

Not a bit stupid.

Mr. M. Hayes

A very illegal thing, and I would like to say that this particular Order should not be used, for example, against strikers or against other bodies. This suggestion should have come from the Labour representatives.

Mr. Douglas

It was made.

Mr. M. Hayes

I did not hear it. For example, workers out on strike might, in some cases, resort to illegal methods, but such illegalities or crimes are in a different category from the calculated efforts of persons whose object is, not to accomplish amelioration of conditions, but to destroy the State and the authority of the State itself. That would apply also to things like a farmers' strike—if farmers or employers of any kind resorted to illegalities. We ought to have a clear statement that the Order would be limited in its application to organisations of a particular type. It is in the nature of things limited in time, and both Houses will have an opportunity in six or seven months of seeing how the thing has worked and of reviewing the matter. Because the Emergency Powers Act under which the Order is made must be renewed by September, the stages must be taken earlier than that to have them through both Houses of the Oireachtas.

This particular Order lays a very special duty on the Attorney-General and the court. My experience of courts as a spectator suggests to me that even under the rules that we observe in the ordinary courts the dice is very often loaded against the prisoner. The dice will be loaded still more against the prisoner in this case, and there is a very special duty laid upon the Attorney-General to give every possible facility to the prisoner, and to see that he is not persuaded, as was suggested in the other House, by overzealous police officers, into a particular belief. If, therefore, the Government tells us, as the Minister has told us, that there is a conspiracy to overthrow the State, to substitute by force of arms a different kind of Government, and to use an outside Power even, to that end, I would, with some doubts, give them the power. I feel, Sir, that the Government, being the Government, and there being no machinery for the moment to change it, must be entrusted with the powers which it asks. The Minister's method of asking it, saying that it was wrong on a previous occasion to oppose certain powers, and that having tried other methods, this is the only one now, is rather disarming. I must say I am going to vote against the motion, and for giving him the powers. In saying that, we should all recognise that there is a certain humiliation, not only for the Government, but for the people, for the whole of us, in having to vote for this kind of power; a certain confession on our part—we may blame the outside organisation if you like—and a certain failure on the part of all of us after 20 years of government that this particular kind of Order has to be adopted.

It is humiliating as Irishmen, Catholics and Christians, that we should have to make a law so drastic in its departure from the laws of a country which does not make half the claims of excellence in the moral sphere that we do ourselves. The truth is, that English law is sound in England, but it will not do for our conditions in certain particulars, and that is a lamentable and a humiliating state of affairs. It will not do to meet a conspiracy here; and if the Government takes what they want and having got it, can do a job that ought to have been done many years ago, then I am not going to stand in their way, and, therefore, I am going to vote against the motion.

Mr. Fitzgerald

I am going to support the Government and oppose the motion now before the House. I think the Government ought to realise how extraordinarily fortunate it is that at this time they have an opposition so very different from the opposition that was in the Dáil from 1927 to 1932. I am surprised that a case has not been made against this Emergency Order on the ground that the emergency really is defined by the amendment of the Constitution which makes the words "time of war" apply to circumstances in which there is a war outside this country. I do not think the Minister has really made a case associating the need for this Order with circumstances arising out of the disastrous condition of the outside world. In the Dáil he referred to attempts to bring in an outside Power.

I am not asking him, if he had information, to give it here publicly, but I do judge from the debate in the Dáil that such information as he had was given to what is called the Defence Conference. I am not putting any great value on the Defence Conference, by any means, but I must say that the public are being led to think that the Defence Conference is something very different from what it is, if it is a fact that the Minister had foundation for the statement he made in the Dáil and did not make that information available in the secret counsels of the Defence Conference.

Quite frankly, I do not believe that these powers are needed by circumstances that would not be there but for the world war which is on at the moment. The circumstances which make this necessary were there before the war came on. In so far as the Minister gave no hint as to what he meant by the "bringing in of an outside Power", he referred to a gang in this country purporting to declare war on another country. That was done before the world war started and that "expeditionary force", as it was called, ceased to function as soon as things in the outside country, in the circumstances of the country being at war, made it so dangerous for those criminals that, instead of poor innocent people losing their lives, there was almost the possibility of their losing their own lives—and that was the cause of conditions becoming quieter there.

The question of whether or not there were murders in the last year or two seems to be rather irrelevant. What we want to know is whether this organisation still exists. We know that it does. It was only a few months ago that a man who had been held and tortured broke away from his would-be murderers and complained to the police. In referring to that, I would warn the Minister that, when a person is giving a statement, he may put in things which are not true. I read a statement which was made and signed, and which purported to be a true statement, and which in every line showed that it was only a concoction of lies.

Leas-Chathaoirleach

I do not think that is relevant to the debate.

Mr. Fitzgerald

If I may say so, when a statement is made and signed and it is admitted by its author, it can be used as evidence, and when I recall to the Minister that such a statement was made, which he knows to be and which everyone realised to be, on the face of it, a wild concoction of criminal falsehoods, I do think it has some relevance. However, I will pass away from that.

As I said, I am going to vote that the Government have this power. I have supported every request made by the Government for exceptional powers to deal with organised crime in this country. Has the Government made proper use of such power? It has not done so so far. When the Minister gets up and talks about the disastrous conditions in this country, one could admit that part of the case, from the fact that the respect for law was wounded over a long period of years, when you had an authority operating laws not directed to the well-being of the people and laws that were in conflict with the millennium tradition here. That was there, in the first place. When you have a condition in the country of civil war or of war against another Power, you always have certain injury done to the law-abiding condition of people; but what has happened in this country in the last 20 years?

I do not want to go too much over the time when the Minister and the present Government were in opposition. I do remember a time when a most cowardly and brutal murder of a Minister took place in this country and afterwards I asked the Opposition that was there then—and of which the Minister was a member—that they should recognise that it was their duty, if they had any information which would assist in bringing the criminals to justice, to make it available. The reply I got was that I was proposing that they should be informers. Again, at that time, I asked those now the Government to depart from the line they had taken before and to recognise that the Oireachtas was the ordinary legal Government. The reply I got from the Leader of the present Government was that we must admit that the authority of the Dáil was faulty. That was all very well. In 1932 this Government came into power. Suddenly it appeared that there was a greater sanctity in Government authority than there was before.

I can remember that, about 1932 or 1933, the Leader of the Government, when he was taking action against people politically opposed to him and against whom he made charges which I was satisfied were false, indicated that there was to be a differentiation of treatment amongst the people of this country—that, whereas one body was to be pursued with all the powers of exceptional law, the other—to which the Minister has now been directing attention—was to be left in a position of peculiar privilege. The Leader of the Government used words to the effect that he would not make himself foolish or put himself in a futile position by trying to get back arms from the I.R.A. He said that in the Dáil, when he was responsible for the security, the well-being and the good order of the people.

At the present moment we know that we have a man—or at least I think so —walking about the streets, who has been found guilty of murder. He was found guilty by the court of a particularly brutal murder, an organised murder conducted quite clearly by the very organisation we are now trying to deal with. The man was arrested by the police, he was tried and found guilty. If he had not been a member of that organisation, it was perfectly clear that he would have been duly executed. Instead of that—if my memory serves me aright—the Government immediately used the prerogative of mercy and commuted the sentence of death to one of imprisonment. Thereafter, the Constitution was amended, with dubious legality, and, if I remember rightly, that man was released.

We know that, within the last year or two, a servant of the State, in the actual service of the State, was murdered in the streets of Cork. The murderer was caught, tried and found guilty, but he belonged to the privileged class and was not executed. If an unfortunate man, in a moment of fury or passion, murdered a man, he would, of course, be executed, but if he belonged to the privileged class he would be exempt. Let us bear in mind that nobody in this country who belongs to a criminal organisation feels that a sentence of five or ten or 20 years is a serious matter. In the last 20 years it has been shown that such a sentence may mean only a few months in prison—certainly, it would not mean 20 years.

The Government itself denied the continuity of Government, and suggested that what was done by one Government, even if it was an international agreement, was not binding upon the other. The Minister and his colleagues have tacitly or explicitly admitted that they were wrong in 1932. When the Government was faced by a widespread conspiracy the second largest Party in the Dáil clearly proposed to the Government, acting almost as their spokesman, the ending of the conspiracy. The first thing they did when they came in was to release all the prisoners who were guilty of organised crime against the life of the State. Later it was declared unthinkable that the Government should use its power to disarm the members of the body that had been guilty of crime, even when it was the murder of unfortunate men who lost their lives in serving the Government. That has been the condition up to the present. Even last week there was some implied apology and some justification by the head of the Government of the murders that are taking place. Everybody knows that when you hear a revolutionary agitator going around he does not always speak in terms of his own doctrine; he looks around for some burning grievance. The Communist agitator rejoices more than anybody else at widespread unemployment and poverty; he loves to see the people suffering and in misery because he thinks that he can then more easily win victims to his dishonest cause. Does anybody think that this organisation of criminals loses its sleep in anguish of mind because six counties of this island are not within our jurisdiction? Does any member of the Government believe that it is this that is rankling in their minds, gnawing their hearts and causing them to take on this career of crime? But what did the Taoiseach say in the Dáil? He said:

"Unfortunately we have a certain political situation. We have a situation in which our country is divided.

Mr. Hickey: That is the cause of our troubles, the fundamental difficulty."

The implication being that the mere fact of the Six Counties being divided from us automatically prevented the bringing of these people to justice. The Taoiseach went on:—

"That is the fundamental difficulty of the matter. The answer to the Deputy is that we are the people who have been put into public office to look after that situation, and nobody else."

Deputy Hickey agreed. He said:—

"The criminals we are dealing with in this are there because that situation exists.

The Taoiseach: I am quite willing to admit that is so. I have never denied it."

I deny it. I deny also that, when the Taoiseach said that, he had one iota of belief in his own words. Is anybody going to say that a man in the Taoiseach's position believes that that is the reason for this criminal organisation? If Partition were abolished, are we going to be told that this criminal organisation would go out of existence? Nothing of the sort. That sort of thing has been played upon for the last 20 years. There was a time when every type of murder was justified because the members of the Dáil took an oath of allegiance to the Constitution established by law. There was another time when it was only the Constitution that had been passed that made these unfortunate, otherwise perfectly innocent people criminals. The Constitution was changed, and you still have them, and the Taoiseach knows, and the Minister knows, as well as I do, that these people will take up any cry that they think will enable them to win some sort of active or passive support amongst the people, and not because they have any particular feelings about it. That has been the condition that has left us where we are now.

I will admit, in so far as we erred when we were the Government, we erred by almost criminal leniency. We had a most unhealthy public opinion. When a campaign of murder had raged up and down this country for the best part of a year, as soon as those who carried out the outrages publicly announced that they were willing to down arms for a time, immediately resolutions were passed by councils calling for immediate release of all the prisoners, and suggesting that it was only vindictiveness on the part of the Government, and not concern for the welfare of the country, that kept them in prison. It is no wonder if an unhealthy political position arising out of disastrous circumstances of our national history, has been kept alive by the Constitutional opposition, and has been tacitly condoned at least to some extent by the Government responsible for good order. Right up to last week we had the suggestion that it was only generous passion, arising from the fact that 26 counties of our country only are under our government, that makes these people criminals. It is no wonder that we require exceptional powers in this country. I am going to vote for the Government, although I have nothing upon which to base belief that the Government is going to use these powers in the best interests of the country. I referred to the fact that members of the organisation carrying out these crimes when they are caught and prosecuted, and found guilty, are immediately treated with exceptional favour by the Government.

With regard to the prerogative of mercy it is quite right that the Executive should have the power to exercise that prerogative, but in regard to the exercise of that prerogative the normal course is that the sentence should be carried out. The Government has the power to exercise the prerogative of mercy. What is the norm by which they judge whether or not to use it? The norm is one and one only, and that is that order and the common good of the people will benefit more by the exercise of mercy than by the carrying out of the sentence. After the experience of the last 20 years is anybody going to tell me that the exercise of mercy has been in the interest of the people of this country? We know perfectly well that every activity of this organisation for the last 20 years has cried out aloud the natural cowardice of the members of that organisation. They have with great courage and astuteness calculated every possible means of intimidation so that they would be able to carry out their crimes and murder unfortunate citizens and themselves go scot free. They have had the practical assurance that if they are caught no jury would dare to find them guilty, and that if they are found guilty the full sentence would not be carried out if it was a sentence of death, and if the sentence were a term of imprisonment it has practically never happened that a man has fulfilled the term of imprisonment he got.

I will say for the present Minister that his general demeanour and general action does give us some assurance that the power they are being given now will be used for the beating down of this crime in this country, but one of the weaknesses of the Government has been this, that it has never been completely frank. There have been admissions that they were wrong in 1931 as to the need for the power that we were given then. There has been no reference to the fact that they carried that wrongness to the point of letting loose the criminals who had been imprisoned. Later, and again I speak subject to correction, and am speaking roughly from memory, a number of these criminals were imprisoned and they did this usual humbug of hunger striking and the Government had not the courage to keep them in prison. Remember that the Government is responsible for the well-being of the country and it is not what is going to make it popular that it has got to consider. They let them out.

The Minister referred last week in the Dáil—the criminals having, as I said, been let out—to the murder of police officers in Rathgar. If I remember rightly, the death of these police officers was due to the criminal cowardice of the Government in letting out the person responsible. You have the position: a man in prison who starts this hunger strike business; a cowardly Government lets him out and an unfortunate servant of the Government pays the penalty, with his life, of the Government's cowardice.

Possibly, I have been rather severe. There is no excuse for these men and the crimes they do. We must remember that, in so far as there is external responsibility in these matters, it lies above everybody else in the country on the Opposition. The Minister referred to the position which made the work of jurymen impossible. I remember the period when we were the Government and the Minister and his Party the Opposition in the Dáil and the presupposed next Government. A juryman who had sworn to bring in a verdict according to the evidence did not commit perjury. As a result, a man was sentenced to a few months' imprisonment. The juryman was called to the door and received several bullets. A few days later, a man who had gone round to the back of his house to put his car in the garage was murdered. The paper for which the present Deputy-Prime Minister accepted responsibility referred to that matter. "Prisoners' Notes" commenced somewhat in this fashion: "Usually the contents of these notes are rather gloomy but we have good news for our readers this week. The renegade or treasonable"—I do not know what adjective was used—"jurymen are no longer safe." Words to that effect were used. The present Deputy-Prime Minister got up in the Dáil after these words had been published and accepted responsibility for them. He made no apology to the people of whom he was shortly to be one of the governors.

The Labour Party, in this motion, gets up to show itself as the defender of the rights of citizens. I myself have almost a mania against the extension of Government authority, but certain things are essentially and primarily a matter for the Government. One of these is the maintenance of order and the protection of the lives of innocent citizens. Therefore, when I am convinced that the organised criminals have consistently operated in such a way as to make the very laws protecting citizens a protection for their own criminal courses, I say those conditions should be changed. Another very important protection for the citizens is that there should be a check on the Government and its legislation. We are told about human experience and the laws of evidence. With that I entirely agree. But human experience has also shown, so far as I can judge, that, when you have a Parliamentary system, one of the best ways of restricting the Government's activity against the people is to have a Second Chamber, with certain very real powers, which is not automatically controlled by members of the Executive. One of the greatest blows to the rights of citizens was the most dishonest case made for the abolition of the Seanad. The Labour Party—I am open to correction on this—supported an Act——

Leas-Chathaoirleach

The Senator does not propose to enter into a debate on the merits of a Second Chamber?

Mr. Fitzgerald

I am debating the merits of the Labour Party.

Mr. M. Hayes

Surely they could not be debated.

Mr. Fitzgerald

They are like the chapter on "Snakes in Ireland." It would have had an effect on the whole moral being of the people if members of the Government had had, at any moment, the courage to get up and make a plain confession of their sins. When they admitted they were wrong, they brought to my mind a humorous story about a woman who was depicted as a person without any morals. A lady said of her: "I do not think she was all she might have been or she would not have allowed her Chinese cook to go out to gambling dens." In the same way, the Government admitted that they might not have been all they should have been because they allowed their Chinese cooks certain liberties but they had not the courage, in the interests of moral restitution and good citizenship, to make an open confession of their sins. From 1922 until practically last week, the Taoiseach has been suggesting that these men are not really responsible, because some foreign Government is controlling the Six Counties. It is about time the Government got up and recognised its responsibilities. They are responsible for order and for the well-being and common good of the people of this State, which consists of 26 counties. This constant harping back upon Partition is only trying to keep alive a certain open wound in our political condition. Just before the war, the Government entered upon a propagandist campaign about Partition in England. They had hired speakers going around, one of whom was somewhat disastrous——

Leas-Chathaoirleach

That is not connected with this motion.

Mr. Fitzgerald

The moment the Government commenced talking about the crime of Partition and how it should be ended the so-called "expeditionary force" went over to England to murder unfortunate people there. They tried to associate themselves with the propaganda campaign entered upon by the Government. Actually, that propaganda policy against Partition was used as a weapon by the men who went over to England to murder the people there. I may as well be perfectly frank. When some of these men were found guilty in England, the story was spread around—I was told it by Fianna Fáil Senators—that the British Government showed vindictiveness because it was clear that one of the men found guilty had no association with the matter. If you ever read the "special communique"—that tissue of lies which libels the Government so palpably that no intelligent person would take any notice of it——

Leas-Chathaoirleach

The document to which the Senator refers has nothing to do with the motion before the House.

Mr. Fitzgerald

I shall read the relevant phrase in the Order.

Leas-Chathaoirleach

It would at least be very inadvisable to have a debate on this document.

Mr. Fitzgerald

It reads:—

"That a statement relevant to such offence has been made (whether before or after the making of this Order) by any person, not being the accused person or any of the accused persons and

(ii) that such statement

(I) either was made voluntarily or was lawfully taken under any enactment, and

(II) was taken down in writing, and

(III) was acknowledged by the person who made it."

That is what gives it relevancy in my opinion, but I am not anxious to press the matter. I do say that once the Government takes cognisance of its own responsibility, which I limit to the Twenty-Six Counties of the State, its every act must not be to consider whether certain action will look bad for the Government, whether or not it will create hostility in the minds of certain stupid people or certain misguided people in this country. It must have one norm in front of it and that is the well-being of this country. It must realise that if innocent people are being murdered by an organised gang in this country, it must take to itself every power that is necessary for the purpose of bringing that organised gang to justice and having taken these powers it must bring them to justice. In view of the danger there is to the whole State, it must see that the fullest rigour of the law operates against every person found guilty. It must not do as it has done practically up to yesterday, namely, when a man is found guilty of murdering a Government servant and is sentenced to death, it must not bring in the so-called prerogative of mercy to operate it directly against the well-being of this country. Having said so much, I intend to vote against the motion.

Mr. Douglas

I delayed speaking, partly because I have extremely little to say and partly because I felt certain that some supporters of the Government would speak in support of the Minister. It seems to me a rather unhappy, and to my mind an almost tragic situation, while no doubt the votes of Senators on the Government side will be favourable, that when a motion of this kind is put forward, the Government is supported only by leading members of the Opposition as far as speeches are concerned. My position in this matter is one of very considerable difficulty. I am perfectly satisfied that the Government must be given every power to deal with treason. I am equally satisfied that there can be no moral justification for treason and that any suggestion that there is moral justification for a treasonable attitude because you have a Government you do not like or because they hold certain political views you do not like, is utterly unwarranted and can have no support.

I should like, if I could do so, to support the Government in their opposition to this motion, but my view is somewhat different from that of Senators who have spoken on this side of the House. If this were simply a matter of giving the Minister or the Executive Council powers to be operated by themselves, I do not think I would be prepared to refuse them any powers to deal with treasonable activity. I am not inclined to agree with the first remarks of Senator Fitzgerald in which he seemed to think that there was no difference between the position at present and the position some time ago. Morally, I completely agree with him, but I do think that although we are a non-belligerent State, in almost every respect virtually we are in a state of war. Legally, as we know, the country is held to be in a state of war for certain purposes. All the dangers that exist in war time are in existence now, and the fact that there are persons who are known or believed to be engaged in treasonable acts at a time when we are told, and I think rightly, by the Government that there is every danger that this country may possibly be invaded or attacked, imposes a peculiar duty upon us. If it is possible to conceive a greater duty, that duty is certainly laid on the Government.

This Order does not deal solely with treason. I would be prepared to trust the present Minister or An Taoiseach to deal with treasonable offences which they cannot try under the powers already given to them, to deal with them on their statements that they were satisfied that certain persons were engaged in treasonable offences, and I should be prepared to leave it to them to meet such activities in any way they thought fit. But this Order proposes to send such persons before a court to be tried for various offences on what, to my mind, is not evidence or cannot be evidence. It would be far better to deal with such persons by way of an executive act of the State, to deal with them executively, when it is not possible to try them under the ordinary rules of evidence. That would be far better than to send them before a court and to have it said afterwards that they were found guilty on evidence which is not recognised as evidence, under the ordinary rules of evidence. I say that with regret. I should like to support the Government, but we are here in our individual capacities as well as members of the House and my honest opinion is that the Order is a mistake. It would be far better if the Government were to take greater powers to deal with these offences themselves than that the idea should get abroad that persons found guilty of such offences by a military court under this Order, were not really guilty at all. I do not propose to speak at any length on this motion. That is my honest opinion. I think this is a wrong way of dealing with offences of this kind, and I say that as one who is willing to give the Government all the powers that are necessary and who wishes to see them taking full measures to deal with treasonable acts.

Mr. O'Connell

I do not want to give a silent vote but, like other Senators, I find myself in considerable difficulty. The Order looked at in the abstract is undoubtedly an exceedingly drastic Order. Everybody, I think, recognises that. At the same time we have, as the Minister said, to consider the position. We have to be realists in this matter. We have to consider the position as it exists at the present time in this country and as we were told what that position is by those who are responsible.

It is more than a dozen years since in another place I expressed the view that in this country there should be one Government and one Government only and that that Government should be the Government freely elected by the people of this country. That very ordinary statement did not seem to get the same acceptance then as it does now from all Parties who were then represented in the House, but I have no reason to change my view on that matter. I hold that opinion more strongly now than I did then. If we are told by the Government that is responsible in this country for maintaining what all of us believe should be maintained, order, peace—as far as it can be obtained internally—and the observance of the law, that they can do that only by taking these drastic measures, then: "Who am I," I say to myself, as an individual who has not their knowledge, "to deny that they are necessary?" So it is that, with great reluctance, as others have done, I have made up my mind that I must give these powers to the Government if they say that they are necessary.

I would say this, however, that the Government, in getting these powers, have reason to be more than ordinarily careful that they are exercised in such a way that, in so far as it is humanly possible, justice will be done. I must say at the same time that I believe that the people who are entrusted with those great responsibilities are the court. Senator Hogan did not think they were a court, but, whoever they are, their main duty is to find out what the truth is and where the truth lies. I, personally, do not attach the importance which some people attach to evidence in its technical meaning. I think that the main purpose of anybody who sets out to investigate a case ought to be to find out where the truth lies and to do justice accordingly and according to his conscience. I have no reason to think, and nobody has suggested, that those who compose the military court will do otherwise and, as I see the position, we must submit our will in this case, we must submit our judgment in this case, to those whom we have elected to preserve order and internal peace in this country. That being so, I cannot feel it in my conscience that they should not get the powers which they say they need in order to do what we have elected them to do. Consequently, I feel that I must vote against this motion.

Mr. Boland

Senator Hayes asked me to give a certain undertaking here. I do not know how far I am entitled to go——

Mr. MacDermot

There is a word I would like to say before the Minister speaks, if I may?

Leas-Chathaoirleach

I think it would be advisable to let the Minister speak before Senator Hogan, who will conclude.

Mr. MacDermot

I just want to put one thing to the Minister which I would have to put by way of question if I did not put it now.

Leas-Chathaoirleach

Very good.

Mr. MacDermot

I am supporting the Government on this motion and as regards by far the greater part of the Emergency Order I have really no hesitation in supporting them in the circumstances of the time. I do feel though, and have felt, a great deal of anxious hesitation ever since this Order appeared, about Article 5, which empowers these military courts to discard, if they so wish, all rules of evidence whatsoever. I agree with Senator Rowlette in thinking that that is a startling and revolutionary step. I am sure that if it had occurred during the time when we formed part of the United Kingdom of Great Britain and Ireland, that such a thing had been introduced by any British Chief Secretary, there is no Irish propagandist, either here or in America or in England, who would not have argued, and argued with honesty and conviction, that the mere fact was sufficient in itself to show the iniquity of the form of Government under which we were living. However, a great deal has happened to educate us since those times and to make us more lenient and understanding in our judgment of those who are attempting to govern this country.

Even so, that particular clause did, I admit, pretty well take my breath away when I first read it and I have not altogether recovered it even now. But in view of what was said in the other House about the laws of evidence in general, about the possibility that many of them were not really well designed for the purpose of arriving at the truth, or the possibility in reference to this country, that the things suited to Great Britain might not necessarily suit here, I am hoping that, in view of all that, some steps will be taken by the Government to evolve a new code of rules of evidence to take the place of the code which they find unsatisfactory. It seems to be a counsel of despair to say, "The rules of evidence are unsatisfactory and therefore we will give a tribunal the power to do without any rules at all." New rules of evidence cannot be codified in a minute and we are presented with an emergency that has to be dealt with and, therefore, in the circumstances, I am prepared to support the Government even on that clause but, in doing so, I wish to put forward the plea that the Government should make up their minds here and now that that power is not going to remain in perpetuity, not even during the rest of the war, if they can manage to get together a proper committee, consisting partly of lawyers and partly, perhaps, of sensible people in other walks of life, to evolve a new set of rules of evidence which they think more suitable to the temperament of the people of this country and perhaps more suitable in general to the elucidation of the truth.

That is one point I want to make. Another is this—that no powers that we give the Government, however drastic, are going to achieve the putting down of murder in this country unless we have a healthy public opinion, and that a great deal more could be done than has been done to create that healthy public opinion, in particular by members of the Oireachtas, by public men in general, by members of county councils and so forth. I remember only three years ago, when two men were executed in England for the Coventry bomb outrage, that they were turned into public heroes and half the public bodies in this country published indignant resolutions on the subject, and, if I remember rightly, the leader of the Labour Party in the Dáil referred to the act as a judicial murder. Now, these were people who had the protection of a judge, had the protection of trial by a jury in open court, had the protection of all the British rules of evidence which we find now so hampering, and if it was a judicial murder to put to death men so convicted, what are you entitled to say about putting to death men who are convicted by a military court with all rules of evidence discarded?

Mr. Foran

Non-judicial murder.

Mr. Hogan

Non-judicial.

Mr. MacDermot

I do not take the point of view of the Labour Party on the subject but I do say that a great many people outside the Labour Party, supporters of the Government, if they are going to contribute to the extent to which they could contribute to the putting down of murder in this country, have really got to do something to reduce the enormous gap between the way they behave on some occasions and the way they behave on other occasions. I am not saying these things for the purpose of recrimination and stirring up things in the past but, if my memory serves me right, even the leader of the Government Party in the Seanad, Senator Quirke, wrote some letters to the newspapers at the time condoning bomb outrages.

Mr. Quirke

I did not do anything of the kind, and the Senator had good reason to know that I did not, because when I replied to his letter he was not able to come back, if he remembers it properly.

Mr. MacDermot

Well, my recollection differs from that of the Senator; perhaps my interpretation of his letters differs from that of the Senator. But I state with a good deal of confidence, that if I had here before me now the letters he wrote on that subject at that time, and I were to read them aloud, they would make him very uncomfortable.

Mr. Quirke

Not in the least; they would make the Senator uncomfortable.

Mr. MacDermot

They would not make me uncomfortable. Well, I have not got them, anyway, and it would be going too much into the past and into details to read them aloud if I did have them. I make the general statement pretty confidently that the members of the Government Party who sit there silently and entrust these enormous powers to the Government, and do so, I think, rightly, in view of the circumstances of the time, would do a great deal more at present to discredit organised crime in this country by carrying through their disapproval of it into all their words and actions outside the House as well as inside the House. I am very sorry to say that sort of thing. It seems to imply an attitude of lecturing, and such is far from my thoughts. I know very well that the active part that members of the Party opposite have taken in setting up this State by fighting for it has actually given them a less, shall we say, aloof outlook from everything of this sort, than a person like me who did not take any such part.

Mr. M. Hayes

That does not follow; I would not accept that at all. It is quite untrue.

Leas-Chathaoirleach

I do not think it is altogether relevant to the subject of debate in any case.

Mr. MacDermot

Well, whatever the causes of the attitude, I think that Senator Hayes would agree that recollections of one's own past activities, one's own struggles and the risks one had to take, the fight one had to fight, must to some extent colour one's outlook.

Mr. Fitzgerald

No, that is an absurd statement.

Mr. MacDermot

In any case, very little turns on it.

Mr. M. Hayes

Hear, hear; nothing at all, in fact.

Mr. MacDermot

In any case, I am not speaking of what is the case with everybody, but rather what is the case with some people, and am trying perhaps with no great advantage to analyse the frame of mind which does in fact operate to make public men all over the country join in such things as resolutions of indignation about the execution of people who have been guilty of murder.

Mr. Fitzgerald

That is just cowardice.

Mr. MacDermot

That is very much more uncharitable.

Mr. Fitzgerald

Truth is so often uncharitable.

Mr. MacDermot

At any rate, the thing has happened all too often in the past and in the pretty recent past; and really much more is required of us than merely to abstain from taking part in such things, from taking part in resolutions of the kind I mention, if we are going to give real support to the Government in putting down murder, and do our duty to the Irish people in creating public opinion. We have got to take every opportunity that offers of actually denouncing crime, so far from in any way seeking to connive at it or to condone it. Therefore I do not think the drastic powers that we are giving are sufficient in themselves to achieve the object aimed at, but that some such powers are necessary I personally am sure. That the truth has been concealed on many occasions by intimidation seems to me so certain that I cannot imagine any sensible man denying it. I do not think the Labour Party themselves have any doubt upon the subject. They profess, and I am sure feel, a great affection for the rules of evidence. So do I. I am not at all inclined to adopt some of the expressions that were used in the other House.

They would seem to imply that if a man was accused of being a member of a certain organisation, that he was hardly entitled to have the truth carefully and painfully probed—that he was sort of half condemned before he was tried. I believe from my knowledge, and from what I have seen myself of these military courts, that the utmost pains will be taken to bring out the truth and give a fair trial. There is no doubt that under this Order a Minister for Justice, an Attorney-General, and a court could, by conspiring together, send any one of us here to execution; but the reason I support giving the Government the powers that they are seeking for is that I have confidence, the utmost confidence, that there will never be any such conspiracy, and that the members of this Military Court, although they may not be as skilled as judges, yet have had a great deal of experience in valuing different kinds of evidence, and are not likely to be misled by types of evidence that might mislead a jury. I think it would be a thousand times more dangerous to waive the rules of evidence in any case going before a jury than in a case going before this Military Court. And might I, in conclusion, say to all those who were enthusiastic about the application of rules of evidence in court, that I would appeal to them to make some use of the rules of evidence in our political proceedings? I think a good many rash statements, both in this House and the other, would have been strangled at their birth if the members who made them had given even one-hundredth part of the attention to the rules of evidence in connection with arriving at their own judgments that members of the Military Tribunal give in arriving at theirs.

Mr. Campbell

I move the suspension of business now until 7 p.m.

Sitting suspended at 6 p.m. and resumed at 7 p.m.

Mr. Campbell

Since this motion was before the Dáil last Wednesday, a private whispering campaign has been initiated in this city to the effect that the Labour Party were acting, in connection with this motion, on behalf of a certain organisation. I think that Senator Hogan disposed of that notion in his speech, and, in seconding this motion, I should like to dissociate myself from any desire to condone or give even the slightest impression that I have any intention, in urging the annulment of the Order which is the subject of the motion, to endeavour in any way to make the commission of crime easier for those who would resort to it as a method of achieving the ends they have in view, no matter how desirable or laudable they themselves may regard the achievement of those ends. I, certainly, have no wish to minimise in the slightest degree the gravity of such deeds, because I do not believe that any good cause can be served by the commission of them. I think that they must be abhorred by everybody concerned for the maintenance of peace and security in this country. In common with, I think, every other member of this House, I detest the commission of such crimes as a means of achieving a political objective, and I abhor the commission of these crimes all the more because there is no necessity for them. There is ample scope, not only outside the House, but even inside Parliament itself, for every political element in the community, and for every interest represented, to give full and free expression to their views, and to put their policies and programmes before the people in a lawful and constitutional manner. I think it is necessary for me to say that because I am of opinion, with the rest of the members of this House, that one Government, and one Government only, can be tolerated in this country.

We have had many speeches here this evening giving reasons, or approving of reasons given, for the application of this Order. I should like, for a moment, to turn to a brief examination of the Order itself. The Order which is the subject of the motion relates exclusively to the manner in which evidence may be submitted to, and received by, the Military Court established under the Emergency Powers (Amendment) (No.2) Act, 1940. It does not concern itself in any manner with the submission of evidence to other courts. Section 3 of the Act to which I have just referred, provides that the Government may, by order, make provision for the trial in summary manner by commissioned officers of the Defence Forces of any person alleged to have committed any offence specified in such Order. The offences specified in the Order, made subsequently, include such crimes as sabotage, interference with vehicles, murder and even common assault. This section also provides that, in the case of the conviction of a person tried in summary manner by the Military Court, that court will impose the death penalty. The section further provides that no appeal shall lie in respect of such conviction or such sentence. The Military Court set up under the Emergency Powers Act consists of three serving officers of the Defence Forces subject, I understand, to Army discipline. If I understood the position correctly, they are under the direct control, supervision and direction of the Government itself. I feel certain that these officers and men have a high sense of honour and integrity and are actuated with a keen desire to perform their duties faithfully, fairly and conscientiously. But due to the very nature of their calling, I think we would be looking for too much, if we were to expect them to have that knowledge of law and that spirit of independence which the judiciary in the civil courts possess to such a high degree.

The Order which we are asking the House to annul in the motion before it relates entirely to the manner in which evidence may be submitted to that court. It provides, firstly, that where one or more persons are being tried before a Military Court and it is proved that a statement relevant to the charge has been made by any person, including the accused person, and that such statement either was made voluntarily or was lawfully taken down in writing and acknowledged by the person who made it, then at any stage of the trial the prosecution (but the prosecution only) may read such statement as evidence; secondly, that where such a statement is read as evidence the court may act on it as evidence against the accused person and that an election to read the statement may be made notwithstanding that the person who made it is not present at the trial; and finally, that if the Military Court considers it proper on any occasion during a trial that it should not be bound by any rules of evidence whether statutory or at common law, the court shall not be bound by such rule.

In a word, the Order entirely abrogates the law of evidence, and is to my mind, the most drastic and the most dangerous Regulation ever made by this Government or, indeed, by any present-day Government in a constitutionally governed State. It constitutes in my opinion a grave menace to the liberty and to the rights of every citizen in the State. It is to a court consisting of three military officers without, perhaps, legal training, or indeed, without legal guidance, that this very drastic Order is designed to apply. That court has the power to impose the death penalty and, in fact, is required by law to impose the death penalty, and no other penalty, on any person convicted of an offence before it. So that, as the law now stands, a person may be tried by the Military Court on a charge of common assault, and, if found guilty, will be ordered to suffer the death penalty. I am not suggesting that any Minister would go as far as that, but that could be done under the Order as it exists at present.

Indeed, the position now appears to me to be that the Military Tribunal established by the previous Administration in 1931 approximated more to a court of law than the Military Court to which this dangerous Order 139 applies. At that time it was required to have regard to the law of evidence, and more important than anything else, perhaps, having regard to the extraordinary powers vested in it, it was a court whose proceedings and decisions were subject to review in the established courts of the land. The decisions of the present Military Court are not subject to any such review, and a recent judgment of the Supreme Court shows that the present Military Court is above and beyond the law— the Supreme Court refuses to interfere with its activities.

No useful purpose would be served in giving quotations from the speeches made by members of the present Government during the debate on the Constitution (Amendment) Bill, 1931, but it will be interesting to quote what an eminent member of the Judiciary said in regard to the composition of the military tribunal established in 1931. Senator Lynch has already quoted some passages from that case. In the case of the State (O'Duffy) v. Bennett (935) I.R. page 97, Judge Hanna remarked:

"Their decision, involving as it may, life, liberty and property, is that of three laymen without any knowledge of law and no knowledge or experience of the laws of evidence according to common law. Are they any more than three jurymen doing their best to decide fairly between the prosecution which is always in the hands of able and experienced counsel and on the other side the accused who are frequently uneducated and undefended peasants? There is no provision for giving the accused legal assistance. Now any judge of experience and knowledge recognises the difficulty of holding the balance in such cases."

Now, in regard to the submission of evidence to the Military Court, it is important to consider what Order No. 139 means. It means, in brief, firstly, that a statement to be admissible as evidence need not be made voluntarily. A statement obtained by a police officer under the Offences Against the State Act and under threat to the person questioned that if he did not make a statement he would be sent to jail or interned, is admissible as evidence; secondly, a statement need not be signed by the person who made it. It is sufficient if it was "acknowledged" by the person who made it. That is to say, if a police officer hands in a statement alleged to have been made by any person and swears the person to whom it is attributed acknowledged it as his statement, then that statement is admissible by the Military Court as evidence against the accused person; and finally, a statement, according to the Order, "may be read as evidence". This makes it mandatory on the Military Court to accept the statement tendered as evidence.

From this it will be seen that, while the Order enables the State to use as evidence statements extracted by police officers, no such corresponding privilege is conferred on the accused person. Statements, in fact, will not be taken on oath, and the position easily can arise in which such statements may be made, containing matter prejudicial to the accused, and which may not, indeed, be relevant to the trial at all.

Whatever defects may arise in the submission of evidence in criminal cases on behalf of the State can be remedied, and in fact are remedied, where the witness appears in person, and is subject to cross-examination. Under this Order, however, it will not be necessary to call the witness whose statement has been tendered in evidence to prove that statement Unless he is put into the witness-box, there will be no opportunity of cross-examination in regard to it and the decision to submit such a witness for cross-examination may in fact be determined on the basis of whether he is a "good" or a "bad" one.

Actually, under the Order, the Military Court is robbed of its discretion to admit or reject evidence or even to control its own procedure in regard to the submission of evidence. It is obliged to admit evidence at any point in the proceedings and such statements can be put in after the defence case is closed and when there is no opportunity to put in rebutting evidence. In fact, it would appear to me, so far as I can read the Order, that accused persons can be convicted by the Military Court without taking any oral evidence beyond the sworn statements of a policeman that the statements submitted in evidence against the accused were "acknowledged" by the persons to whom they are attributed.

Many instances are on record in this country and elsewhere of persons being wrongly accused, wrongly tried and wrongly convicted of offences. There were many well-known cases tried before judge and jury in which persons, despite law and rules of evidence, were wrongly convicted and punished for offences never committed by them. If such things can happen when all the safeguards in regard to evidence and cross-examination are in force, what may not happen when these safeguards are consciously discarded as they are in Order 139? I have noticed that in a very recent case in the City of Dublin a young man named Quinn was charged with bank robbery, convicted after due examination of witnesses and sentenced to imprisonment. A year later it was acknowledged that Quinn was not the guilty party. He was released and the State paid him compensation for wrongful, imprisonment. On June 6th, 1940, Walter Brady of Dublin was convicted at the Central Criminal Court before a judge and jury, of armed robbery, and sentenced to ten years' imprisonment. A week ago he was released on the ground of innocence after having served 18 months of his sentence.

These instances provide a terrible warning of the risk to which a prisoner is exposed once the suspicion of the State rests upon him. Every effort is made to secure his conviction. I do not know what the position of this man Brady would have been if he had been brought before the military courts and sentenced to death. It would not have been any use to him or his dependents if the sentence were later annulled, because the man would have been dead. In that connection, it might be well to recall that a man was sentenced to death before the military court for an armed raid on a bank. If this man Brady had been submitted to the same ordeal, he probably would have been found guilty and would have long since passed away from this world. No compensation could restore him to his family. It is for that reason that I think this Order should be mitigated in some way. I think provision should be made to guard against happenings of this kind.

There are other examples which I could quote, but I think these two examples will, if the Seanad is susceptible to any impression at all, impress upon Senators the gravity of this measure and the dangerous powers that are inherent in it. I think that a drastic power of this kind is a very dangerous weapon in the hands of any administration, even though such powers may be assumed by virtue of the authority conferred on the Government by emergency legislation. Human nature being what it is, there is always the possibility that if the assumption of such powers were permitted to go without protest, without challenge and without some safeguard that the ordinary citizen would not, by any mischance, be brought within the ambit of such a severe Order as the one with which we are dealing, the Government might be tempted to go still further and assume still more drastic powers, if indeed such were possible, for I must confess I think the present Order gives them absolute power over life and death. I do not suggest that this Administration might use these powers for any ulterior motive, but then some future Government might seek to use these powers for a purpose which was never contemplated. A Labour Government might be glad to have these powers and to use them against some of their opponents. That is hardly likely to happen for some time. Nevertheless, I think the danger of placing such responsibility in the hands of Ministers is very great.

I came across a recent case in England, which exemplifies to my mind, in a very striking degree, the risk of placing this responsibility in the hands of a Minister of State. Here is the case to which I refer. In May, 1940, Benjamin Greene, a Quaker, was detained in England under their Emergency Powers Act in connection with certain alleged pro-German activities. Under the regulation made under that Act, the Home Secretary in Britain was required to make an affidavit preliminary to the internment of a suspect, and in regard to Greene's case, the manner in which the transaction was handled is described briefly but, I think, in a telling paragraph, in the issue of The Economist for January 24th, 1942. The paragraph is as follows:—

In an affidavit by the then Home Secretary charges were embodied that Mr. Greene had communicated since the outbreak of war with people in Germany, with helping men whom he believed to be German agents to evade arrest and desiring the establishment of a Nazi régime in Britain with the help of German armed forces. Under the weight of these tremendous accusations, sworn to by a Secretary of State, Mr. Greene has been imprisoned for 19 months and would probably be there still but for the detection of a careless mistake made in 1940 by the Home Secretary. What happened was this: Two forms had to be served by the Home Secretary, one for Mr. Greene's detention and another for his information. In the first form, the Home Secretary quoted one part of 18B and specified hostile association but in the second he cited another part—conduct prejudicial to the safety of the State. This did not make much difference but in an application for habeas corpus it was emphasised by counsel, and Mr. Justice Humphreys suggested another inquiry by the Advisory Committee. Mr. Greene's solicitor demanded the name of the man with whom Greene, according to the Home Secretary, had conspired. He was a man named X and the solicitor found, interviewed him and obtained from him a statement that there was no truth in the charges. Some one must have gone to the police with a basin-full of lies; a Home Secretary had swallowed them and regurgitated the mixture as an affidavit. By worrying the Home Office with this statement, the solicitor first secured Mr. Greene's release and then obtained an official withdrawal of the three chief allegations against him.”

Some Senators or the Minister may suggest that that is an exaggerated case, but it is a case that happened and, in any event, similar cases may happen here under this legislation.

Mr. MacDermot

I think that in the next issue, the issue of the 31st January, The Economist had to unsay part of what they said there.

Mr. Campbell

I have not seen that. In any event, our real point is not that we want to withhold any powers from the Government that it feels it should have but we think that there should be some safeguard for the ordinary man in the street. We do not claim any monopoly of concern for the man in the street. I hope every Senator and every public man and woman has the same concern that we have.

While anxious to give the Minister all the authority that he requires, I think this thing is too dangerous. We had promises when the emergency legislation was being passed in 1939, that that legislation would not be used against the economic lives of the people. I submit that that legislation was used against the economic lives of the people and that the promise given on that occasion was violated. I think it is most important that we should have some guarantees that these powers will not be used in that way. People may say that to deprive a man of the means of getting enough to live is not of much concern. I think it is nearly as important to a working man that he should have a sufficient wage to live on—which is his way of maintaining life—as it is to a man who is on trial for treason that he should have the necessary safeguards.

I was surprised to hear from the Minister that the position had worsened. Frankly, I believed the position during the past 12 months had improved. I was amazed and disappointed last week in the Dáil when I heard the Minister stating that the position had worsened in that respect and that conspiracy was abroad in the land. I am not standing for conspiracy of any kind against the State and I do not think any of my colleagues here would be associated with such efforts to overthrow the lawful authority of the State.

In conclusion, I would say that although the Order itself does not definitely state so on its face, it obviously has been designed to apply to a particular case, but I submit that the Order is so framed that it can be applied with equal effectiveness, and perhaps is fraught with equally dire consequences for any citizens against whom the authorities may wish to use it. Again, I am not suggesting that that would be done, but the power to do it is contained in the Order. It is neither implicit nor explicit in the Order itself that the powers under the Order will be exercised only against those engaged in illegal activities or organisations designed to overthrow the lawfully constituted Government of the State. It may be argued that the Government has no intention of using it for any other purpose. Nevertheless, it is so designed that it can be made to reach out far beyond the confines of the case with which, as I have already said, it apparently was intended to deal. There are no safeguards of any kind, so far as I can see, indicated in the Order that it cannot and will not be invoked by the State as prosecutors in future cases if it suits this Government or any other Government to use it for that purpose. Like other Senators, we must differ as to our attitude in regard to this Order, but it is because we are genuinely concerned with the interests of the ordinary citizen, who, perhaps, although innocent of the charges made against him—I have given instances already—could be sentenced to death on the unsigned and unsworn evidence of an unknown person—for that reason and purely for that reason we are asking the House to annul this Order.

Liam O Buachalla

Like some other Senators who rose this evening, I did not intend to take part in this debate at all. However, I am going to speak now on account of a certain remark made late in the evening by Senator Douglas in which he suggested, at least I think he suggested, that silence on this side of the House tended to imply some dissatisfaction with this Order or some doubt in our minds as to the need for it. Other people on this side may speak for themselves if they feel like it, but I, for one, wish to make my position clear. The Government has stated the case for the Order under discussion fully. I could not add anything to their arguments. The reasons why I did not intend to rise were these: in the first place, I am satisfied this Order is needed; in the second place, I feel no uneasiness whatever that the Order will be abused or that the rights of the community will in any way be made to suffer as a result of giving the Government the powers they ask for in this Order. When the Order came out and when I read it, I, like Senator MacDermot, got something of a start. I realised that the Order was a very grave one, and because I realised its gravity I made it my business to study it and to make inquiries with regard to its implications and the powers it conferred. As a result of this study and inquiry, I came to the conclusion that the Order was necessary and that consequently, there was only one course open to me, and that was, that as far as may be in my power, the powers sought should be given. It seemed to be set up or suggested here this evening, as a standard of our sincerity or belief in any matter, that we should stand up and make a speech. I think one Labour Senator, at any rate, will agree that a good deal of what we heard here this evening since 3 o'clock lacked sincerity and lacked reality. Instead of twitting us here on this side of the House on our silence, I think it would have been more to the point if people on this side had been complimented on the patience and restraint they showed during quite a number of speeches that were made.

To indicate one's approval of an Order or of any other matter here, as I say, it seems to some people that one should stand up and make a speech. I have a great deal of respect for the House. Because of that I should be sorry to rise on any occasion unless I felt I had something to contribute to the debate or unless I felt uneasy about any matter and genuinely desired information on it. Might I ask the House to recall the opening remark of Senator Douglas, who twitted us here to-night? He assured us he had very little or nothing to say, but he took a long time to say it, and he seemed to be able to get an amount of hurtful matter into what he said, although it appears he had nothing to say in the beginning. Senator MacDermot, for example, had merely a question to ask the Minister, and yet as he proceeded with a speech instead of asking a question, one could not escape the conclusion that his rising was merely a matter of afterthought. The same applied to a number of other people. Senator Rowlette rose only when it seemed the debate was closing and when we were about to decide that we should divide on the motion. On a number of occasions during the afternoon one felt that the whole thing had fizzled out, but somehow or another somebody thought to himself just then: "I had better get up and say something." Senators are perfectly entitled to act in that way, but at the same time it is no harm to draw attention to the seeming lack of reality and to the seeming lack of sincerity that was to be read into a good deal of the speeches made here this evening.

There was one remark made in the course of the evening to which I would like to refer because I take one exception to it. I do agree that it is no great satisfaction to us at this stage in the political history of the State that such an Order as this should be called for, but, at the same time, it is scarcely fair to say that its necessity is a reflection, properly speaking, on the Irish people. There exist eminent professions, and sometimes one, two or more members of one of these professions may be guilty of conduct which does not reflect very well on the profession as a whole, but we would be very slow to condemn the profession as a whole for that reason. In the same way, I do not think the fact that certain conditions exist here at the moment is such a great reflection upon the Irish people. The people responsible for the unfortunate conditions which call for this Order are very few in number, and I think anybody who knows the country will say that the temper of the people is to get rid of these conditions as soon as they can in any way they can. For my part, the question that troubled me was the question of evidence. I am not a lawyer. I have made a fair study of commercial law, but that does not give me any authority to speak on the question of evidence, or on the law as it is implied in this Order. The position, however, has been summarised by some Senators this evening like this: while the rights and security of the individual must be kept in view and must be secured so far as it is humanly possible to do so, we must, at the same time, not lose sight of the fact that the community has rights also. It seems to me that the safety of the community and the safety of this nation depend on the stamping out of the cause of this trouble, that they depend on the suppression of organisations or agencies likely to land this country into trouble. That is the only way in which I can view it, and for that reason I feel that I have no option but to vote for the Government on this matter; in other words, to vote against this motion.

Professor Alton

I am provoked to say a few words, although I did not intend to speak and will probably be twitted for saying very little, by my feeling that I must protest against a remark made by the last speaker as to a lack of reality and a lack of sincerity in the speeches here. I have rarely listened to a debate in which members spoke with more sincerity and more feeling; all of us have taken this matter gravely to heart. I attended the debate in the Dáil last week for a considerable time on Wednesday and Thursday in order to get some light on the subject. I consulted many of my legal friends as to the value and importance of the laws of evidence and they, of course, agreed with me in theory that they were like the laws of the Medes and Persians, the laws of the Stone Tables—that they could not be and should not be violated. Yet I think that view is an unreal one. It goes against my own feelings indeed to vote against this motion, but I am going to vote against it. I asked for alternatives to the abrogation of the laws of evidence, with the consequences ensuing therefrom, and I got three or four alternatives every one of which seemed worse than the procedure the Government have adopted.

There is in this country, in this terrible era of the world in which there are great wars of nations, a reflection of the world war in our war of law against un-law. Are we going to let un-law take advantage of our prejudices, our pride in old traditions, our belief in certain principles, to break the law? Are we going to hand over innocent persons in order to keep this principle of the laws of evidence inviolate in the interests of people who are using that principle to defy law? I think they know as well as we know that we are very reluctant to violate the laws of evidence, but they are taking advantage of our prejudices, and I do not see how it is possible to meet their challenge otherwise than by taking some steps such as the Government propose. It is unfair for us to ask the Government to protect the lives and rights of the mass of the citizens and not to give them the power to do so, or to tie their hands. I am not going to do it. I shall not be a coward; I shall take the risk of any obloquy that may be poured on me for opposing, as I intend to oppose, this motion.

Mr. Cummins

I do not want to give a silent vote on this motion. The position of the Labour Party in putting down this motion for annulment has been very explicitly stated by the people on these benches, and there is very little further to be said. I listened with great attention to the Minister, and I was not convinced. I thought that both his statements were vague. The powers sought are enormous, and the abrogation of the laws of evidence is a very big step. These laws of evidence have withstood the test of centuries. It is true that they were designed to deal with normal conditions, but they must have been dealing with abnormal conditions, too. You are in this Order running up against the legal element in the country. Every legal man who has spoken on it, so far as I can learn, has condemned it. The case made by Senator Campbell was stated by Senator O Buachalla to be full of unrealities.

Liam O Buachalla

Oh, no. I did not so characterise all the speeches, and certainly not those from the Labour Benches.

Mr. Cummins

I withdraw my suggestion, but I may say that the instances given from these benches were stern realities from which we can see that the position may be abused, and that innocent men may go to the scaffold on very vague and flimsy evidence. I do not say that that will happen, because the Military Tribunal have exercised the functions, the very difficult functions, which they were set up to administer, with a reasonable amount of credit for themselves. They are all very reasonable men, and, although they have not got legal training, they are men who are in a position to judge the evidence produced to them and the reality of that evidence by reason of the various sources of information they have through the country.

We oppose this Order, then, for the reason that it is legislation by Order. The emergency powers legislation was passed some time ago, and I believe it was quite sufficient to deal with the matter, instead of its being necessary for the Government to rush in hastily with this Emergency Order.

Members of the House are speaking under the disadvantage that the report of the debate in the Dáil last week is not available to them. I think it is hardly fair that they did not get an opportunity of consulting it so as to be able to prepare their replies.

There is another point. I gathered that, heretofore, the military court had power to arrange its own procedure, but it has been suggested that that power is likely to be taken away from it. Whether that is true or not, I do not know. Neither do I know if it is true that men are to be brought before it in bunches or in groups instead of individually. If, however, it is proposed to interfere with the military court in arranging its own procedure, I think that is definitely wrong. The court will have a very difficult task to perform, so that if any Minister were to tamper with it, or attempt to give a certain direction to it, that, in my view, would seem to indicate that the case of the prisoners was being prejudiced by such a procedure on the part of the Government. Nothing should be done to leave it open to anyone to say that.

It is very deplorable, I think, that legislation such as this is necessary. In regard to the people and the organisations mentioned we have, I understand, 400 or 500 people interned on the Curragh in Kildare and in other places. It is rather a mystery that those people cannot get a trial on some charge. They are a source of heavy expense to the country and of worry to everyone concerned. Their character, whatever it was before, will have disintegrated, due to their confinement in an internment camp. I think something should be done about that. I cannot imagine that they will be brought before the military court in groups of four or five or half-a-dozen, and that the court will be instructed to try them in groups. I do not know whether that is the intention of the Government or not. Then we have the people on the fringe of these organisations, that are supposed to have external associations with some of the Powers. I know nothing about that, nor do I know the Powers that people who speak on this are supposed to have in mind. I think it is time, if the Government have evidence of the existence of such organisations, that they should make that evidence known to the public so as to prevent the youth of the country from joining them. I have a slight suspicion that that is being done in some quarters. I do not know what the organisations may be, but the youth of the country are very sensitive and easily led. They may be led into ways of insubordination against the law, if the Government do not take steps to make an announcement on the matter. They should let the country know and tell us something about those organisations. I would be very sorry to do anything to curtail the powers of the Government in preserving law and order.

Our position in regard to this motion has been made very clear. We are not doing this at the request of anybody. We think that there is a danger inherent in what is being proposed. I could not, for example, imagine Senator Foran seeking such powers and becoming a very stern dictator, although there is the danger that he might be much more stern than the Minister. In conclusion, I want to say that I would not like to entrust any man on these benches with such powers as the Minister is seeking.

Mr. Baxter

Some questions have been addressed to the Minister. I do not know if there are many that will need to be answered. I am not sure whether that will please Senator O Buachalla or not. Perhaps I am lucky to be speaking after him. Otherwise, he might be more critical of me than he has been of some of the speakers who have gone before. I notice that he did not criticise the case made by the Minister. Frankly, I would have welcomed more contributions from that side of the House. The remarkable silence there has rather astonished me. It would have been very much more helpful to the Government of the country, and to its future in my opinion, if more had been said on this motion from that side of the House. If, instead of this motion, we were discussing some small unimportant motion of mine dealing with the price of wheat, oats or barley, I am sure we would have heard far more from that side of the House than we have heard this evening. The truth of the matter is, this motion—it was discussed in the Dáil last week—is fundamental to the life of this State and to all its citizens. It is much more important than, say, the price of oats, or barley or wheat, and consequently I think we should be clear in our minds as to what we think about it, and, what is more important, that it would be helpful to everybody if we said what we thought.

Mr. O'Donovan

We will say it later.

Mr. Baxter

I will welcome the Senator's contribution. Listening to Senator Campbell and to Senator Cummins, I felt like saying to myself: "I wonder at times whether we want to govern ourselves or to leave it alone." I think we ought to be clear about that. I want to say further, that if all the people who are associated with government, whether on the Right or on the Left, spoke out clearly and unmistakably and demonstrated that they were not afraid to speak or to vote, it would be helpful to government both in the present and in the future. My first experience of an Order of this kind goes back 20 years, when I was a member of the other House. I was then an unformed youth and had much greater faith in, and much less understanding of, humanity than I have to-day. The Government in those days felt that they wanted certain powers which they did not then possess. They wanted power to impose restrictions and punishments on certain people, including the present Minister and a number of his colleagues. I recall that there are men in this House now who supported that Government then in getting those powers. I believed, as the Minister believed apparently, that the quietest way was the best way: that if you went gently and took your time there would be no harm done and everything would come right in the end. I believed that at the time and gave my vote in those days against the Government being given the powers asked for.

I can assure the House that in 1927, when one of the greatest men who ever lived in this country was assassinated, I had a very rude awakening. As a member of the other House then, I examined my conscience and wondered whether what I had thought previously was not folly. On more than one occasion since then, I have taken the line that when a Minister who is charged with the onerous and difficult task of administering justice, of maintaining order and peace in this State tells us that the conditions are such that without the possession of certain powers he does not feel competent to preserve life and order in the State—he has the knowledge and knows his own limitations when seeking those extra powers—that if I want to have the country governed I have to trust the man who says that. This evening I am not prepared to take the responsibility of voting with the Labour Party for the annulment of this Order. I am not going to pretend that I support or oppose the motion with enthusiasm. We have heard the Minister's statement. I cannot accept what Senator O Buachalla has said as being true, that this is only a trifling storm in a teacup, and that only a few people are concerned. That is not what the Minister said.

Liam O Buachalla

On a point of order, I did not say that. I said that we should not blame the Irish people to the extent that they were being blamed this evening because of those people. That is a very different thing.

Mr. Baxter

I think that is, so to speak, passing on the baby. I think we are to blame, and that the country is to blame because if the country made a proper, a courageous moral approach to a situation like this, then, in my opinion, the situation, potentially, would not be as dangerous as the Minister tells us it is. I may not be correct, but that is my feeling. I would welcome every Senator saying something. We can take to task the Senators who moved and supported the motion; we can examine their arguments and if they are faulty we can point out where they are faulty. There are obvious absentees on the other side of the House. That was noticeable in the other House, too.

With regard to a problem like this, we either want our State to live or we want it as a State to disappear. It cannot live and progress without stability, peace, order and respect for law. While this organisation which is anti-State may be composed of a limited number of people, they are obviously able to create such conditions of instability as to make the Minister and his colleagues and others very unhappy and they put him in the position that he has to ask for those powers— and very extraordinary powers they are. That is not a situation that any of us can welcome. There is no use pretending there are not dangers inherent in a situation where these powers are handed to a Minister or to those who administer the law under him.

Many of the things that Senator Campbell has referred to may possibly occur under the operation of this Order. From our experience of the administration to date, one cannot be very happy and one could not confidently say that nothing which is displeasing is going to occur under the administration of this Order. We voted the Government certain powers on one occasion and the first people to be brought before the Military Court were the Blueshirts and groups of farmers, not people violently anti-State. We have voted the Government certain powers with regard to a censorship—I have referred to this matter here on other occasions. We have seen those powers exercised, not for the purpose of preventing us saying unpleasant things about people outside the State or any of the nations that are at war, but in order to prevent us saying things about our internal affairs, about our future, our way of life, our products and our prices.

I think there has been a most disastrous use of those powers. That being so, it is not easy for me and for other Senators to approach a situation like this without a certain amount of scepticism. We could easily take the line of least resistance and disappear and not vote here; we could say it is not our job and we will let the Minister and those around him do it. But on that basis there would be a great danger for the future of the State and I say that the people who are afraid to come forward and stand for the Government are not competent to govern themselves. This is a test, but nothing like as severe a test as the citizens of other States have to undergo; perhaps, in a way, it is a kind of canter before the real race. If we were at war we might have to do very extraordinary things—we might have to do them even before we would become involved in war. We would not go very far in war if we did not make up our minds that people who were anti-State were not going to have much consideration or much say in the ordering of our political future.

The first time the Minister came to this House was with a Land Bill and I must say that he has always been frank and courageous. In my experience, and I think it is the general experience, he has been straight. If there is one member of the Executive who realises and appreciates the fact that he is getting powers of life and death over men in a very difficult position, men perhaps in a dangerous situation, I think it is the Minister. I recognise that to break with all the rules of evidence that we have accepted as our code would be a very dreadful thing for lawyers. On the other hand, it is a very difficult thing to play with people who will not recognise the rules of the game.

We have been told here that we are sending men before a military court. I realise how strong were the arguments put forward by Senator Rowlette and others in regard to that situation. I do not know who compose the Military Court, but they are obviously mature men, men with a sense of justice. Whatever men may know about the law and the rules of evidence, above all, the men who sit in judgment on their fellows must be pre-eminently just. I have the feeling that if a man is seeking justice, whatever the rules of the game may be, those who are determined to see justice done will see to all the rules. What are the rules, after all, only something that men have built up through years of experience? Our rules have been altered over a long period of years. They are merely regulations framed to see that justice is done.

Although the rules of evidence may not be operated in the same way as in the ordinary courts, I have the feeling that just, Catholic men on the military court will be as concerned to see that no man will be sent before his Creator whom they are not convinced is guilty of the offence, and I feel that every precaution will be taken to prevent any inequity being perpetrated. Indeed, I believe the military court will be even more careful than the ordinary court because of the strength of their position.

It was stated this evening that, even with the rules of evidence being closely adhered to, men have been convicted before judges and juries and wrongfully sentenced. That has happened. It might very well be that if the case were to go before a judge sitting without a jury these men would not be found guilty. Even before a military tribunal the men might not be found guilty. Juries in certain cases have brought in a finding which might not be the finding if the decision were left to a judge or to the three men who compose the military tribunal. The facts which face us are unpleasant, and I do not know when we will be able to leave these unpleasant things behind us. We certainly will not do so by being afraid now to face the situation.

The Minister is in a difficult position and the facts are not any more pleasant for us or for the Minister's colleagues. I know how I felt in 1927 when I voted for the Public Safety Act after the assassination of Kevin O'Higgins. I had to go back on my own thoughts and words. I did not like to do so, but I believe that if you are going to do the right thing, even though it means going back on what you said and on the people with whom you were associated, it is much better to have the courage to face the consequences.

There were one or two important points in the very able speech made here by Senator Hayes. His first point was that the application of this Order will be limited to the organisation which is anti-State.

I hope the Minister is going to make it clear to us. We may have even legitimate activities in a time like this, with all sorts of problems for our ordinary citizens, that might make many of them go out along lines that might be breaches of the law but which could be dealt with in the ordinary way. We had men brought before the courts martial previously and I think it was a misuse of the powers of the Ministry. I think it should not have been done and that it is bad for the administration of justice. We are clear, however, that this Order will be up for review inside of a few months. In addition, I hope the Minister will reiterate what, I think, he has already said, that the Attorney-General will go to every extreme to satisfy himself that innocent men are not convicted. Beyond that, I think we have to trust the Minister; I do not see that we can do anything else about it. It is not nice to have to vote for this, nor is it pleasant that the Minister has to introduce it here. He was courageous enough to tell us that he had hoped there was another way out of it but that when he found there was not another way to do it he was going to try it this way, and in view of the fact that the Minister has said that, I do not think any of us are justified in refusing him the powers he seeks.

Mr. Boland

Senators Baxter, Hayes and Campbell dwelt on the point that it was possible that people, not engaged in what I described in the other House as organised crime, would be brought before this court, and they wanted a guarantee that that would not happen. That guarantee is readily given. I think there is a bit of misapprehension about the two courts. I do not blame Senators or the ordinary public for not being able to distinguish between all the different courts. Unfortunately, we might well feel that sense of humiliation that was expressed by Senator Hayes, and by Deputy O'Sullivan in the other House, that it should be necessary at this stage of our history to have to use such powers, but that is the situation we have to deal with and we must face it.

Senator Campbell, in his speech, said that a case of common assault could be brought before that court. He read out the Schedule of offences, and I think he mentioned the case of common assault. If he said that, he is entirely mistaken. He is referring to No. 6 in the Schedule, and that is really the technical description of kidnapping. Already, one man was tried under that, and sentenced to death, but the Government, having gone very carefully into the whole thing, for reasons that they thought were proper did not proceed with the execution. It has got to be broadcast, however, to everybody, to the whole country, that that thing will not be tolerated—this thing of kidnapping people, threatening them, and making them make statements with, possibly, a view to killing them afterwards—but whether they do it or not we will not stand for it, and in the circumstances in which we live we could not possibly stand for it. That thing was put there after very careful consideration indeed. Everybody in the Defence Conference got every opportunity to examine it, and I understand that all these things were carefully considered. Although the House did not debate them at any great length, they were carefully considered in detail when that court was about to be set up. So it is not true to say that cases of ordinary, common assault could come up.

I was also disappointed that so many Senators should repeat that the defence was having its rights taken away from it. That is not correct. Any statement that is put in can be dealt with by the defence, just as if this Order was never made at all. As I pointed out, when speaking before, the powers that the Government are looking for are set down specifically in Clauses 3 and 4. They have no other power, and there it is laid down that statements, satisfying certain conditions, may be accepted as evidence, but not as conclusive evidence. That is a matter for the court. If they think it is conclusive, it may be accepted as such, but the Order does not lay it down. It is simply taken as evidence and may be one of the factors taken into consideration in deciding these cases. The function of the court is to see that justice is done, and that is its primary function, and in order that justice may be done cases of this sort, anyway, whatever the rules of evidence may have been, should be brought out and it should not be possible to allow guilty people to escape in these circumstances.

I am prepared to agree with those who say that it is better to let a guilty person escape in ordinary cases rather than change the rules of evidence, but I am not prepared to stand by and see guilty people getting away with this kind of thing. On one occasion, very reluctantly, I had to stand by in connection with an attempted murder where I was satisfied that if the information and statements we had were brought before this Military Court those responsible would be brought to book, but I had to stand by and see these people getting away with it. I certainly was not going to see that happening again and again, and I emphasise that what we want to do is to ensure that if any group of people sit down and decide to take someone's life, from this out they will realise that they are not going to get away with it on any technical rule. I do not want to make little of the rules of evidence. I know of the circumstances under which they were built up and, as a humane person, I fully sympathise with the principles and ideas of the people who framed these rules, and I will always sympathise with the accused person—not if he is a hardened criminal, but at any rate, he should get a fair chance. It would be a disaster, however, if these people should continue to have the immunity which they have had for the last few years.

We are in the position now of being practically charged with being tyrants, but the charge that was always levelled against us hitherto—and with great justification, I say, although our motives were good—certainly was that we were too lenient altogether, that we really were not a Government, and that we were afraid to govern. I am not admitting that we were afraid, but I do admit that we stretched leniency to a point to which we were scarcely justified in stretching it. That is my answer to Senator Fitzgerald. I think that, certainly, his speech to-day was most unworthy. When speaking on one of these measures previously I appealed to him to try to drop the reference back to 1922. I am not a bit ashamed of my part in that movement, but there was a case for both sides, and an offer was made, for God's sake, to close it some time and let us have an inquiry into the whole thing with a view to ascertaining responsibility for it—both sides had responsibility— but really it is too bad that it should be brought up again and again. It gets us nowhere and it is most unworthy of the Senator to refer to it. I did not think he would, in the circumstances in which we are living. I am admitting that we were lenient, and almost too lenient, but the fact is that we tried out our policy of leniency in the vain hope, I see now, that we would convince people that they ought to take a new line, put their case before the public, as we are all free to do and, if they got the public or the people to support them, then they could change the law in any way they liked. They have not done so, and we will not stand for it any longer.

There is another thing which I must repeat. Two very important ex-Ministers have said that there had been only one murder in 12 months. As I said earlier here to-day, one ordinary murder we might have to put up with, because people's passions will get the better of them, but one murder decided on by a group is too much in one year or in ten years, and I do not know whether there are one or two, or ten people on the list for this year or this month or next month, and that is what we have to deal with. I do not want to exaggerate the strength of this body. I said they are not too numerous. The responsibility for signing their internment warrants is on me personally, and as there is no advisory body it is to me that an appeal has to be made. I can assure Senators that it is not a very pleasant position for me, but I can see no way out of it.

There is nobody interned who ought not to be interned. Anybody there who wishes to make a case for himself will get the fullest and most sympathetic hearing, and not one of them would be there if we were satisfied that they would behave as ordinary citizens. In addition to those, there are 153 who have been sentenced for different offences. I say that that is too bad. If we had not those 500 interned I do not know what they would be doing. The police have informed me that those people who are interned—and from my experience of the police I regard them as very trustworthy—are amongst the most important members of this organisation. I do not believe there are 2,000 all told, taking the country as a whole. Most of those who are at large, as far as we know—with a few exceptions—are not very dangerous. We think we have the most dangerous of them interned, and they are going to be interned as long as the emergency lasts and as long as we are satisfied it is not safe to let them go.

In answer to Senator Baxter, who repeated the question put by Senator Hayes and also by Senator Campbell, this Order is to be used against organised crime, against people belonging to a particular type of organisation, who organise crimes, and who are sent before one particular court, that is the Military Court as distinct from the Special Court. The Special Court is one set up under the Offences Against the State Act. It is subject to all the rules of evidence, and there is an appeal to the High Court and to the Supreme Court from any decision of that court. The Military Court is dealing with quite a different situation, and with very definitely specified offences. No ordinary citizen—no trade unionists, no body of trade unionists, no farmer strikers or anybody else—is in the slightest danger of going before that court. No persons are in danger of going before it unless they organise in an illegal way, and attempt to do something by violent methods. We have been accused of abusing our powers by bringing before the Military Court those farmers who took part in the farmers' strike. It was not the Military Court they were brought before—I do not know whether it was in existence at the time—it was the Special Court. I dealt with that in the Dáil; I was not challenged about it here. At that time, the position was that they were an organised body. They were all farmers, of course. There were two sets of them. One set tried to bring produce into the city and the other tried to stop them. As long as they tried to do it in the ordinary way, by peaceful picketing and that sort of thing, we did not object and did not interfere. We would never have dreamt of bringing them before this court, that is the Military Court, but as I pointed out when the matter was raised in the Dáil, shots were fired.

There was one case where the house of a person who was sending milk to the city was attacked, and shots were fired from the house. Luckily, nobody was wounded, but that same evening shots were fired in return. I asked the Deputy who raised the matter in the Dáil—I think it was Deputy McGilligan —whether he wanted us to wait until people were killed or wounded. We were not going to do that, and we felt perfectly justified in sending that case before the Special Court, and not before the Military Court, because that court, I want you to remember, is a summary court, and only has power to give one sentence. If it finds a person guilty, he must be sentenced to death. The Government has power of remission. That court is only there during this emergency, and I certainly say it has not been abused. Deputy Norton said in the other House that we only got that court under false pretences. That is not correct. They were told the type of cases it was intended to deal with. As a matter of fact, several cases have been dealt with by that court, and nobody in this House or in the other House ever raised any question about it, so I do not think it is right or fair for anyone to suggest that we have abused our powers under the Order setting up that court.

I think I was possibly mistaken in saying in the other House that the matter was bound to go before the Government, but that is the opinion of the Attorney-General—that before any case goes before this court he must first bring it before the Government. If the person is found guilty, it must come back to the Government again for further consideration. As far as guarantees are concerned—there they are; only organised crimes, crimes committed by an organisation, are to be dealt with under this Order, and those crimes are set down very clearly. There are ten of them. Those are the only types of cases to be dealt with, and there is a guarantee there for everybody. Deputy Baxter said, I think, that we discriminated; that we used our powers against the Blueshirts and not the I.R.A. That was dealt with in the other House, too. I happened to be acting for the Minister at the time. I was asked to explain why the Blueshirts were banned and the I.R.A. were not. I gave a very clear answer. I said the reason was that the I.R.A. were, on the face of it, an illegal organisation, and were being dealt with—at the time when I was speaking there were something like 300 of them in jail; whereas the other organisation —I do not want to raise anything out of the past—was ostensibly a legal organisation, a Constitutional organisation, but doing very unconstitutional things. There were shots fired into barracks; they were becoming very dangerous, and they were simply put in the same position as the I.R.A. There was no discrimination. At the time when Deputy McGilligan raised the matter, I was able to give figures; I have not got them now. At the time we had those others in jail they were ipso facto illegal; the others were pseudo-constitutional at the time. I am simply answering that question——

Mr. MacDermot

As a matter of historical fact, they were banned long before any shots were fired. However, I do not want to go into the past.

Mr. Boland

That may be so, but I remember a case in a little village in Cork, the village of Kildorrery. At any rate, they were a very militant type of organisation which we did not want to have here. I am sorry I mentioned it, but I do not think I should be expected to pass over that accusation of discrimination.

I certainly would appeal to Senators not to give the impression that the defence has had all its rights taken away. It is not true. That would be a terrible state of affairs. It is not true, and surely we want to have the truth here. I know Senator Campbell does, and I am sure Senator Rowlette does, too. I suppose the reason for that impression is that we are only setting down here in this Order what rights the prosecution is getting. We set them down specifically, but that is the limit of the extra powers that the Government is seeking to give this court. All the rights that the defence had, they still have. I am sure that every one of us here wants to know the truth, and I do not think anybody should misrepresent the facts by saying that the rights of the defence have been taken away. I would not stand for that for one moment. The Attorney-General would not stand for that; no Attorney-General would stand for it. No counsel would prosecute for the State if the rights of the defence were to be taken away. No court would stand for it either.

The Chief Justice was not speaking on our behalf when he said that undoubtedly Section 5 could be used for the benefit of the defence. We did not have to inspire that. He is far away from every one of us and he judges things as he sees them. He made that statement. I had already put it in my brief and I intended to say it before I saw his judgment, although I will admit frankly that it was not for that reason we put in Section 5. The real object was that we wanted to copper-fasten Sections 3 and 4. Still the powers were there. It was understood all the time that the defence still had its rights. If I have made that clear Senators may vote in any way they like; but I certainly think it would be a shame if people were to persist in saying that we were doing such a tyrannous, impossible thing as taking away the rights of the defence. I realise how that misunderstanding has arisen.

Senator MacDermot raised a point about the rules of evidence, as to whether there ought not to be an inquiry about their suitability here. Of course there is no intention whatever to extend this beyond the military court. This military court is only dealing with those organised offences. Perhaps in the future we may be able to set up a committee of some kind, as was mentioned in the other House by Deputy Costello and members on our side of the House, a sort of legal reform committee. I do not know whether it can be done, whether we will succeed in doing it; but if it is done, this is the sort of thing that could be inquired into by such a committee and recommendations made. But I want to emphasise that there is no intention whatever of extending this beyond the particular court which will deal with these offences.

Again I say that the one object I am terribly keen upon attaining is that if people decide to kill somebody the law must be such that they will be brought to book. That has not been the case. They have got away with too much. They were able to say: "We will kill so-and-so" and nobody was brought to book. We know that too well. That has been the position for a number of years. Some have been found guilty. We have been accused of not proceeding to execute them. We may be held not to have done our duty by being too lenient. But cases are made by all sorts of people when these matters come up for final decision. All sorts of considerations arise and it is not quite as bad or as black as was painted by Senator Fitzgerald this evening—it is nothing like it. But I do admit that leniency has not been a success. We can say this anyway, that we have tried leniency to the extreme limit and we come now to the position that we will not let people get away with this any longer if we can help it, and no rules of evidence, drafted in another country and which are found suitable for that country and are suitable here so far as I can see for ordinary crime, will be allowed to operate to bring about what I call a miscarriage of justice.

Mr. MacDermot

I suppose the Minister has considered the question of whether there is any danger that this Order will make it actually more difficult for the police to get statements?

Mr. Boland

We have considered that. It is not likely that we will get many statements, but we may. People sometimes will talk. They will make statements and then after a while they will get frightened. They will make statements voluntarily to the police and say that their conscience annoys them, but when they think it over they will say: "My God, what have I done?" We have to protect witnesses. There is a danger that we may not get statements. On the other hand, if a man makes a statement there is a danger of his being shot. There have been cases where statements that were made could not be used. Sometimes people had to get a guarantee from the police that they would not use statements because they were afraid of their lives. But in these cases they might give the police some sort of a clue. There are cases like that. I do not know what the position will be in future, but I do hope, when it becomes clear to these people, who are inclined to "hit-up" witnesses or get them out of the way as they call it, that if persons make statements, far from its being any use if they are found dead or abducted it may be all the more damning against the accused, they may hesitate to remove them at all.

Sir John Keane

I have heard it stated that this Order only operates in one way; that while the prosecution is free from the laws of evidence the defence is not. I understand that the same rules or the same exemptions from the laws of evidence that apply to the prosecution will also apply to the defence. Is that right?

Mr. Boland

The Senator must not have been in the House when I was dealing with that. I have dealt with it fully already. All the rights of the defence are still there. The extent of the power given to the court is specifically contained in Sections 3 and 4 and limited to that.

Professor Alton

If the accused is mute, what will happen?

Mr. Boland

If a witness is mute, that is a matter for the court. We are not saying how they are to deal with it. The court will have to make up their minds whether he is mute of malice or by the visitation of God. That is not a matter for me; it is a matter for the court to decide.

Cathaoirleach

Senator Hogan to conclude.

Mr. M. Hayes

Are we not to hear the Leader of the Fianna Fáil Party on this important question? That is astounding. It shows an amazing lack of moral courage. It is an amazing state of affairs if we are to vote on this without any member from the other side of the House, except one Front Bench member, having the courage to get up and support the Minister on this Order. It is disgraceful.

Mr. O'Donovan

I do not think Senators should be called cowards. We will show by our votes. We object to being called cowards and I think the Senator should withdraw that.

Cathaoirleach

I call on Senator Hogan to conclude.

Mr. McEllin

Is there to be compulsory speaking now?

Mr. M. Hayes

Compulsory silence.

Mr. O'Donovan

We will give you the charity of our silence.

Mr. Hogan

Senator Buckley, I think, was rather unfair to his Party. He said that it was his practice, when he could not offer anything effective in a debate, to remain silent. I assume that is the general principle of the Fianna Fáil Party. If that is the rule that governs them this evening I congratulate them, because there was nothing effective offered from that side in defence of the Order, and nothing effective could be offered. The Minister did not offer anything effective. As a matter of fact, I have very little to say because of the ineffectiveness of his remarks. He made no case whatever for Emergency Order No. 139; he made no case why it should not be annulled. I know his character for probity and disinterestedness and I accept it. But when he stressed on several occasions that they are not taking away any of the rights of the defence of an accused person, surely he did not mean that.

The rights of the defence before this Order was made and before these rules of evidence were suspended were that everybody making a charge or intending to give evidence would go on the table and make an oral statement and be examined on that oral statement and put on solemn oath between themselves and their Maker as to what they were saying in respect of the accused person; and that they could be cross-examined by the defending counsel on that statement and would have to say whether they stood by it as when they made the statement, or whether they stammered or stuttered or disagreed with something they previously said; and gave the court the opportunity to see by their demeanour whether they were telling the truth or not. Now, this is all swept aside and all you have to do is to get a document provided by somebody—somebody in a jail or a mental hospital or anywhere else—and so long as it is sworn to as acknowledged by the person after it was made, it is accepted as evidence. Yet the Minister tells us quite blandly that all the rights of the accused person are preserved. Surely nothing is more absurd than that? You cannot cross-examine a statement, you cannot examine the demeanour of a statement, and you cannot find out from it whether is coincides with a statement orally made previously: you can only look at the statement and hear it read.

The three military men are not alone expected to know what is good evidence, but they are expected, from reading the statement, to know whether it is the truth or not. You are putting these three military men in a most onerous position, you are asking them to decide what is good evidence and to say by reading that statement, whether it is true or not. Of course, they cannot say that. Now you are putting that in evidence against a man tried for treason. All down the ages in the case of persons tried for treason, the evidence against them had to be corroborated. I asked the Minister specifically whether treason would go before these courts and he did not give the answer, as it is a fact that it will.

Mr. Boland

It may.

Mr. Hogan

And all down the centuries, in the case of a man tried for treason—the highest crime against the State—there had to be corroboration of evidence given against him in order to have him convicted. The evidence of one person would not be sufficient.

Now you need not have the evidence of one person at all. You have only the unsigned, unsworn and uncorroborated statement, which simply says that it is a document acknowledged by the person who made it. Now does the Minister tell me that all the rights of the accused are preserved? I do not think he can.

I am very sorry that it is the present Minister who has such a case to defend. He endeavoured to make the best of it. Looking at it impartially and endeavouring to see that this dispute that has continued for the last 20 years should be finished some time, and that we should find ourselves disagreeing as to the point we had reached but agreeing as to how we could advance further, I cannot see that the Minister has justified the action he has taken. He has not justified execution on an unsigned document, and that is possible— execution first and full inquiry afterwards—and I am sorry that it is the position.

The whole criminal code in certain directions is to be suspended so that everyone accused should be submitted to a court of three military men whose alleged honesty and wisdom may be all right—it is only alleged—but whose ignorance of law is admitted. We have to trust them—that is the only thing the Minister can say, to trust them— that they would be able to dissect a document and discover from it the truth in it, analyse it and find out whether it is true or not. The Minister said—whether it was his considered opinion or not—that trade unions and farmers' organisations will not go before the Military Court unless they organise in an illegal way. I am anxious to know what that meant.

Mr. Boland

Did I not go a bit further than that? Surely I said more than that—"and decide to use force to attain their objects".

Mr. Hogan

I will accept the Minister's statement. Otherwise it would affect legal trade unions under recent law.

Mr. Boland

I thought I said that phrase about force. If I did not, I meant to say it.

Mr. Hogan

We are told that much responsibility will rest upon the prosecuting counsel. The Minister told us that the counsel would not prosecute if the rights of the accused were taken away. I do not know the attitude that would be taken up in this matter, but there is no doubt that you may not have a member of the Irish Bar prosecuting at all times. You may have a military man and the guarantee given here may be of no use. It may be said that, not alone was it unnecessary for prosecuting counsel to be a barrister, but that the prosecutor may be a military man and, perhaps, then the whole Irish Bar would be excluded.

Mr. Boland

I hope it will never come to that.

Mr. Hogan

There is no guarantee. The previous Government and this Government have been legislating and the present Government has got the Treason Act, the Offences Against the State Act, and the Emergency Powers Act—the latter the most drastic measure ever introduced by any Government and containing the most drastic power ever given to any Government. Does the Minister think that, by simply suspending the rules of evidence, the Government will effect what all this legislation has failed to effect? Does the Minister not think the disease more fundamental and that there is something more fundamental which must be considered and decided before this will have any effect? I put that to the Minister in all sincerity.

The Minister told us that he had 500 men interned. By the way, that is 500 men interned at a cost of £3 per week. It is amazing that the Minister cannot bring some of those people to trial, notwithstanding all the officers of the law there are about, and that evidence cannot be found against some of those 500 people. I want to emphasise quite clearly—and I am emphasising it against the Minister, although I do not wish to do it—that the rights of the accused are not preserved; and I want him to analyse that in his own mind and examine it in respect to a person tried on a capital charge on a document unsworn and unsigned. The Minister said here that people make statements and get frightened and that civic spirit and civic ideals, in other words, are at a very low ebb in this country at the moment, and that it is very necessary that the people should be spurred on to have higher ideals in regard to civic spirit. I have here a cutting from the Sligo Champion which states that the Minister received a civic reception from the parish councils there. Addressing the deputation on that occasion the Minister stated:—

"I am very glad to know from you that the relations that exist between the Gárda Síochána and the people of the town are as they should be. As far as I know that is the general condition of things throughout the whole of the country.

The Minister commented on the fact that there was more civic spirit among the people at the present time than there had previously been, and that, he said, was due to the defence bodies which had been inaugurated."

Mr. Baxter

That is true enough.

Mr. Hogan

He said that that state of affairs was due to the defence forces that had been inaugurated.

Mr. Baxter

Quite true.

Mr. Hogan

If the Minister now says that civic spirit is lacking amongst the people, and if he stated in Sligo that the civic spirit is good, I cannot understand the position.

Mr. MacDermot

He did not say it was good; he said that it was better.

Mr. Hogan

We are all delighted at that state of affairs. I have not much to say in reply to the Minister. He made no case for Emergency Powers (No. 139) Order. He has not justified the position in the case of a person who has to defend himself against an unsigned and an uncorroborated document. The Minister has power of internment, and power to suspend the laws of evidence in order to secure a conviction. I am sorry that the Government has been driven to that, and that the Minister has not been able to make a case for it.

Cathaoirleach

Is the motion being pressed?

Mr. Hogan

Yes.

Question put.

The Seanad divid ed: Tá, 8; Níl, 35.

Tá.

• Campbell, Seán P.
• Cummins, William.
• Douglas, James G.
• Foran, Thomas.
• Hogan, Patrick.
• Lynch, Eamonn.
• Rowlette, Robert J.
• Tunney, James.

Níl.

• Alton, Ernest H.
• Barniville, Henry L.
• Baxter, Patrick F.
• Colbert, Michael.
• Concannon, Helena.
• Corkery, Daniel.
• Counihan, John J.
• Crosbie, James.
• Johnston, James.
• Keane, Sir John.
• Kehoe, Patrick.
• Kennedy, Margaret L.
• Lynch, Peter T.
• MacCabe, Dominick.
• MacDermot, Frank.
• McEllin, Seán.
• Mac Fhionnlaoich, Peadar
• (Cú Uladh).
• Doyle, Patrick.
• Farnan, Robert P.
• Fitzgerald, Desmond.
• Goulding, Seán.
• Hawkins, Frederick.
• Hayes, Michael.
• Hayes, Seán.
• Healy, Denis D.
• McGee, James T.
• Magennis, William.
• O'Connell, Thomas J.
• O'Donovan, Seán.
• O'Dwyer, Martin.
• O'Neill, Laurence.
• Nic Phiarais, Maighréad M.
• Quirke, William.
• Robinson, David L.
• Stafford, Matthew.

Question declared lost.

The Seanad adjourned at 9 p.m. until 3 p.m. on Wednesday, February 11.