Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 30 May 1956

Vol. 46 No. 2

Prisoners of War and Enemy Aliens Bill, 1956—Committee Stage.

Section 1 agreed to.

I move amendment No. 1:—

In sub-section (7), line 35, to delete "as respects", and, in line 36, to delete "that such person is" and substitute "to be".

The object of this amendment is simply to remove a clumsy phrase in the wording of the Bill and to substitute for it wording which seems to me to be simpler. As the clause stands at present, it reads:—

"A member of the Garda Síochána or of the Defence Forces may arrest without warrant any person as respects whom he has reasonable grounds for believing that such person is a person directed to be interned..."

It seems to me it would be simpler to say "...may arrest without warrant any person whom he has reasonable grounds for believing to be a person directed to be interned..."

Apart from the obvious improvement in clarity, I would also submit that "as respects whom" is not a legitimate phrase to be used at all. I think we might say "with respect to whom" but "as respects whom", I find hard to accept in any circumstances.

As I said on the Second Reading, this is the Parliamentary Draftsman's method of expressing what is desired. It is very difficult for me to decide between two experts upon the use of the language in which this is now put. I am informed it is in accordance with usual legal practice to phrase it in that way. I am also told that, when it is translated into Irish, it will have the meaning which it is desired it shall have. I have no strong views on the matter, except to say that the Parliamentary Draftsman submits it in this way. He is the expert on that type of language. I feel I should accept what the expert says is the correct way to do it.

On the other hand, if the Seanad feel that Senator Sheehy Skeffington's phraseology is more direct, as I think it is myself, I have no kick against it one way or the other. I do not think there is any great need to change the wording when the Parliamentary Draftsman says that this is the correct way. I am advised that the words are in accord with the language used in statutes and is precise and accurate. That is the advice which I have been given. It would not be fair to ask me to adjudicate between the Parliamentary Draftsman, on the one hand and Senator Sheehy Skeffington, on the other, as to who is right. I will leave it to the House, but I would ask the House to accept the Parliamentary Draftsman's decision.

I would support this amendment. I think it is an improvement in English and in clarity. In 99.9 cases of out 100, the Parliamentary Draftsmen are right, but occasionally I think they happen to be wrong. Occasionally, I think they happen to be tied too much by tradition. If we pass this now, it will go on to the next Act of Parliament and so ad infinitum. If we improve it now, I think we would be doing a good job.

I would strongly support the amendment. As the wording stands, it is certainly not English. I do not know what language it is. I think the words are quite meaningless.

I take it the meaning of sub-section (7) is that a member of the Garda Síochána may arrest a person who is a person directed to be interned but who has not been successfully interned at the moment. It is intended to catch two classes of persons—(1) a person directed to be interned who is in fact not interned, or has never been interned, and (2) a person who has been interned but escaped. If that is so, it seems to me that the wording in the amendment is absolutely sound for accomplishing that purpose.

I am not saying I have read every Bill that has ever appeared before the Dáil, but I have read a great many Bills. I have no recollection of ever seeing this rather curious phrase "as respects whom" combined with the cumbersome expression "that such person is a person". The Minister made an allusion to translation into Irish. Before translating it into Irish, they would probably put it into the English of the amendment and then translate it into Irish.

Mr. Douglas

I support Senator Sheehy Skeffington's amendment. It would make the sub-section much clearer.

Amendment put and agreed to.
Section, as amended, agreed to.
Sections 3 to 6 inclusive agreed to.
Question proposed: "That Section 7 stand part of the Bill."

I oppose this section for the reasons I put before the Seanad on the Second Stage. The Minister, in originally introducing this to us, told us that this was, in the main, a Bill for the purpose of implementing certain international conventions and bringing us into line with the practice in other countries where such conventions had been ratified, but in Section 8 of the memorandum accompanying this Bill, it is said that the Civilians Convention on which this Bill is based does not specifically provide for trial of enemy aliens by military courts.

The object of the section we are asked to include in the Bill is to allow enemy aliens, charged with an offence and already interned, to be tried, not by the ordinary courts, but by a military tribunal. The memorandum accompanying this Bill admits that this portion of the Bill is not for the purpose of implementing the international convention, but that there is something added to it by this Bill. The memorandum pleads the case that, since the convention which we are trying to implement does not specifically preclude military tribunal, "it is obviously desirable that there should be power in certain circumstances to bring enemy aliens before military courts." This is a measure which is brought in by the back door, so to speak.

We are told that the justification for the Bill is that the international convention agreed to do certain things. Then we find a section which has nothing to do with the international convention, and the most the Minister can say in extenuation of it is that at least the international convention does not prohibit it. There are a lot of things which it does not prohibt and yet does not recommend. The memorandum says: "It is obviously desirable". I do not see it as being "obviously desirable." If an enemy alien has been interned, I do not see any reason, if he commits an offence, why he should not be tried by the ordinary processes of law.

I would be very suspicious of granting this power to any Minister to deal with such a man by military tribunal. Furthermore, I do not think that such a Bill as this is the place to introduce a principle of this kind. Therefore, I am opposed to the whole section.

I should like to support Senator Sheehy Skeffington, not so much on the principle that aliens might not be tried by military court, if an emergency arose, but because I think that this is a matter which, if it is done, should be done under emergency legislation when the emergency occurs. I think it is undesirable that, in a Bill forming part of the ordinary law of the country, there should be provision that such cases should be referred to any court other than the ordinary courts of the country.

It must be remembered that when this provision takes effect there will be a state of war in existence and that the persons likely to be charged before a military court may already be in a military camp. Therefore, it is only reasonable to provide that, if the Minister so directs, any offence committed shall be tried by a military court. The Constitution lays down in Article 38, that:—

"Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion."

That Article of the Constitution authorises the setting up of military tribunals generally. It is very difficult to see how a civil court could automatically handle the situation having regard to the state of war then existing and also as the person concerned may be in a military internment camp. I feel it may not always be possible to have recourse to a civil court in the ordinary way. If you delete this provision, you are creating difficulties for everyone concerned and in the circumstances I think it is only reasonable that a military court should, if necessary, have power to deal with these offences because a state of war exists. You cannot have internment camps unless the state of war exists. Having had some experience of military courts myself, both from the point of view of appearing before them and on them, they are excellent. I do not think there is any danger of anything going wrong with them. I think the Seanad should give us the power. There will be no difficulty about the matter. If you take it away, you are taking something that we will then have to bring in again when the war is on and it might not be as easy as it looks to do that.

I feel the point made by Senator Cox is an adequate answer to the last point made by the Minister, that, should the necessity arise during war time, it is quite easy to get emergency legislation and to provide for this contingency.

You would all object to it then.

As the Minister points out, this deals only with an alleged crime committed by a person already in a camp. The suggestion that it would not be possible in time of war to have emergency legislation covering this point seems to me to be unreal. It would be perfectly possible. I agree with Senator Cox that peacetime is not the time to introduce a law giving the Minister power to have an enemy alien, who is interned and accused of an offence, tried by military tribunal, if he thinks fit.

If the Minister so directs.

I think that is a false principle to admit in peacetime. The Minister himself has already pointed out that such a person would already be under military law. I understand that in this country in the past the chief justification for a military tribunal used to be that the intimidation as was the civil court. That would clearly not apply to the case of an interned enemy alien. I should like the Seanad to imagine the case in which a serious crime was alleged against such an enemy alien already in captivity and already under the entire control of the military authority. Supposing he was accused of murdering an officer in the camp, is it not obvious that the whole feeling of the military authorities in control of that prisoner would be strongly prejudiced against a prisoner accused of such a crime? In fact, such feelings of resentment in such circumstances might even lead them to assume guilt, when it was not there.

It would be against the principles of justice to allow the Minister to decide that such accused persons would be tried by a court of people likely to be influenced in such a sense rather than be tried by civilians in a more judicial way. The Minister pays a great tribute to military tribunals. I am not prepared to say they are always bad, but I myself would prefer to be tried by a civil court, with all its defects, than by a military tribunal. If the crime has been committed while the prisoner has been under military control, then I think it is more likely the prisoner will get a fairer trial by a non-military court. I would persist with my amendment.

This Bill can only come into action when a state of war exists. If I accepted the Senator's view, then we would bring in emergency legislation to set up the military court——

You would have to justify it, though.

When the state of war exists, it will be done, but the civil courts are not cut out. Such prisoners can be brought before the civil courts. This Bill cannot come into operation, unless and until a state of war exists.

Or an emergency.

Or an emergency. At that stage then, if we took the Senator's view, what we would have to do when this difficulty arose would be to bring in emergency legislation. Everybody considers that a very bad thing. We would then be legislating in a hurry. We think this is the right time to bring in such legislation so that it will be there, ready, when and if the occasion arises. I think that is a sensible viewpoint.

Might I ask a question? If it appears so obviously necessary, why was it that the Civilian Convention did not ask for the provision of this in all conditions where such conventions would apply?

Because they may not tell us what exactly we should do in our domestic legislation. We are setting up the machinery here and having it in readiness for use, should the occasion arise. The Minister for Justice will bring in another Bill and then we can ratify the whole convention. This is a domestic law, the very same as the Red Cross Act was. There are several things in the Red Cross Act which were not specifically laid down in the conventions. The conventions may not take from Parliaments the right to decide their own domestic methods of dealing with these problems. This Bill is our way of dealing with them and we had to keep the Constitution in mind to make sure that one was in accordance with the other.

My question was perhaps not quite clearly put. It was: why did the convention make no recommendation about a military tribunal, if they appear so obviously desirable? They make no such recommendation.

They have arranged for the trial of offences. They do not say what kind of court we are to set up. We believe this is the best method of dealing with it.

Question put.

Would Senators in favour of a division stand up?

Dr. Sheehy Skeffington and Dr. McHugh rose.

Question declared carried.

The Senators' objection will be noted in the records of the House.


I move amendment No. 2:—

To delete sub-section (3).

I am sorry to be in the position of apparently monopolising the committee time, but I feel here, as I said on the Second Stage, that it would not be right to give a member of the Garda Síochána and of the Defence Forces the right under the Bill "to arrest without warrant any person as respects whom he has reasonable grounds for believing that such person has contravened sub-section (1) of this section." That is what is provided for under sub-section (3) of Section 8. This applies not to prisoners of war, not to enemy aliens, but to Irish citizens. It gives the right to any Civic Guard or to any private soldier the right to arrest an Irish national on suspicion. I do not like that provision. I do not think it is wise. I think Section 8 would be much better without this sub-section. Therefore, I should like to see it deleted.

Sub-section (3) reads:—

"A member of the Garda Síochána or of the Defence Forces may arrest without warrant any person as respects whom he has reasonable grounds for believing that such person has contravened sub-section (1) of this section."

The person referred to is one suspected of assisting the escape of an interned prisoner of war or enemy alien—that is what sub-section (1) of the section says. The escape of a prisoner of war or of an enemy alien could have very serious results for the whole country and even though the Civic Guard has reasonable grounds to believe that a person has helped in such escape, he is not, according to this amendment, to do anything about it. When you consider that a pawnbroker has the right to arrest a person who goes in to pawn a watch should he suspect that the watch was stolen it does not seem unreasonable to give a Civic Guard the right to arrest a person who, he suspects, is guilty of the offence set out in sub-section (1).

Or a private soldier.

A private soldier in time of war is equal to a Civic Guard—or a pawnbroker. I cannot for the life of me see why there should be any question whatever about giving this authority to a Civic Guard who has the civil responsibility to carry out his duties to the State. I think it would be unreasonable to accept the amendment when you consider the effects which the escape of an enemy alien could have for the country.

I am afraid I am not convinced by the Minister's eloquence.

Not eloquence, I am afraid.

I am not concerned with the grim nature of the crime or the appalling consequence of having a prisoner of war released, because I think that is irrelevant. I do not really care of what crime the Civic Guard or the private soldier suspects the person. I would like to see him not given the power to arrest on suspicion an Irish national without at least the ordinary civil necessity to show cause and to get a warrant for his arrest. Furthermore—and I do not think the Minister dealt with this— he is asking for power, under a Bill that he is seeking to have called the Prisoners of War and Enemy Aliens Act, to arrest Irish nationals and to arrest them on suspicion and to grant that power of arrest, not to senior officers or even junior officers, but to any private member of the Defence Forces. I still feel that that is a dangerous sub-section and an unnecessary one.

Surely the whole point forgotten in this discussion is that this Bill refers to a state of war and this particular power given to a member of the Garda Síochána or to a private soldier of the Defence Forces is exercisable only in a state of war and only in the kind of circumstances which occur during a war. All this theory about the rights of citizens and about bringing people before courts within certain periods, and so on, may be all very well. I actually saw, during the last war, an ordinary policeman arresting a person whom he suspected of having done this very thing and it was a very mixed up situation. It would be quite absurd if he had to send for a senior officer or for an officer of the Defence Forces. In fact, the Defence Forces arrived too late to capture the prisoner on the particular occasion that I am thinking of. Senator Sheehy Skeffington cannot be convinced because he is theorising about this whole matter, not relating it to the hard and rather cruel facts. He used the word "grim" in a derisive sense. The trouble is that war is a grim thing and it is just too bad but this power is exercisable against Irish citizens during a war only and it does not mean, of course, that the man is dragged away and never comes back. He is arrested and held, but he must be brought to trial, presumably.

Of course, he must be. Therefore, the power is quite a normal one. There is no need to make our flesh creep by the picture about what people will do, our own forces, in our own country, when we are at war and when we are coping with some people who are enemy aliens. I think the power is quite reasonable.

I should like to support Senator Sheehy Skeffington in this. Let us consider it as it might happen to any one of us.

Let us hope it will not.

We hope not indeed, but it might. The country, we will say, is in a state of war. Any private soldier in Dalkey can come up to my house and say that he suspects me of helping the escape of an enemy alien and lead me away to prison there and then and I have, apparently, little or no redress. I do think that that would be an outrageous state of affairs. Even if I have a good solicitor and can get out in perhaps six or seven hours, I can see that it could be misused and I would like to see some safeguards.

I agree with the Minister that in critical times of that nature, we must take drastic steps. But this is a matter of degree. I think the clause goes far in degree. I would ask the Minister to consider some kind of safeguard that, at least, a high officer of the Civic Guards should have to give some kind of consent, and that at least some ranking officer of the National Army should have to give consent. I can see that if Private X of Dalkey has a grouse against me—I do not know of anyone that has, but it is not impossible—he may deliberately come up and cause trouble against me and anyone else he does not like.

He would get into trouble himself for that.

He may, but I would not like him to have the opportunity of troubling me first, and under this clause I think he has. I would ask the Seanad to give this clause careful attention. I say it is a matter of degree. I say this goes too far. I would ask the Minister to see if he could restrict it somehow by the Report Stage just so that, at least, a senior officer of some kind would have some say in the matter. People lose their sense of proportion in wartime. A private soldier or a Civic Guard may get queer ideas in wartime. We must safeguard ourselves against that. I think Senator Sheehy Skeffington's is a reasonable objection, and I hope the Minister might consider some modification of these very drastic powers.

I should like to support the section as it stands. There seems to be some confusion between the act of arrest, on the one hand and the trial of the person arrested, on the other. There are a great many cases in which police officers can arrest without having to get a warrant and I think the kind of events that are envisaged in this section are the same kind of events which would possibly not give time to get a warrant. Furthermore, I do not think that providing that there should be a warrant really helps very much, because it is perfectly obvious that, if there were time for the policeman or the soldier to go to some superior person and say that he suspects so and so and asks to have a warrant issued, he would get it as a matter of course. I think the section is a reasonable one and I think the objections that are raised against it are really met by the fact that anyone who is arrested in this way would have to be brought up immediately before a court and dealt with in the ordinary way.

To carry out what Senator Sheehy Skeffington and Senator Stanford suggest, I would have to make every Civic Guard and every soldier an officer. Is it imagined that the person who was suspected would wait while the Civic Guard or the soldier ran away to somebody to get the warrant to arrest him? Remember that it is a time of war. Remember that, under sub-section (2), a person who contravenes sub-section (1) shall be guilty of an offence and shall be liable on conviction on indictment thereof to penal servitude for any term not exceeding seven years or to imprisonment for any term not exceeding two years. Therefore, when the Civic Guard or the soldier arrests he has to be indicted and sub-section (2) provides for what will happen to him if he is convicted. If he is not convicted, I presume he will be let out. It is an authority and a power that should be given to those whose duty it is to protect the State, whether they be private soldiers or commissioned officers, during a time of war. Remember, it is only during a time of war that the power operates.

It seems to me that the sub-section as it stands goes too far one way and Senator Sheehy Skeffington's amendment goes too far the other way. The procedure suggested by Senator Stanford appeals to me, because it fixes personal responsibility upon a higher officer. As against what the Minister has just said, I would suggest that, in such a period of war, emergency powers might be in operation at the same time, enabling the person to be held without trial for, say, nine days. In such a case, I can visualise Senator Stanford, in the unfortunate circumstances he has imagined, not getting out immediately the solicitor applies, but being held for nine days.

I am not a lawyer, and I am not really familiar with what kind of safeguards Senator Cox has in mind for such a person, but I think the point made by Senator McHugh just now, that there might be some kind of compromise reached, would tempt me to think that, even if you granted this power, there ought to be some proviso that such a person shall in fact be charged under sub-section (2). The Minister tells you that, under sub-section (2), a person who contravenes sub-section (1) shall be guilty of an offence. There is nothing to say that he shall be charged. If the law required that he had to be charged, then, obviously, he would have to be brought to trial, but all that sub-section (3) says is that he shall be arrested. There is no obligation on the arresting person to charge him with any offence although it is admitted that, if he is charged and found guilty, he will be punished. I should like, at least, something added to it, some words to the effect, "provided that such person shall be charged with the offence within a reasonable time", or within a prescribed number of days.

I am a little disturbed by Senator Hayes's attitude. I am sorry he is not here at the moment. It seems to me that his respect for the theoretical principles underlying law is just a little bit too vague. He seems to say that theoretical principles are all very well, provided you do not have to use the law, but, if you have to use the law, you can steamroll any principle of civil liberty or anything else; all you have to do is convince the Minister that it is necessary. That could have unhappy results and has had unhappy results. The theoretical principles which underlie the law protecting the citizens have a practical as well as a theoretical value. Therefore, I should like to see this sub-section at least amended, and to have put into it some proviso that a Civic Guard or a member of the Defence Forces who arrests an Irish national on suspicion shall be obliged to have him indicted within a reasonable time. If the Minister would agree to introduce such a modification on the Report Stage, I would withdraw my objection to the sub-section.

If an officer of the Civic Guards arrested him or an officer of the Army, can we hold him the nine days? Would it be all right then?

I think he should be charged.

If we accept what the Senator has said, if an officer of the Civic Guards or of the Army arrests him, then we presume it is all right, if he is held the nine days, but if a Civic Guard or a private soldier arrests him, he must be tried the next day. If we were at war, it would be better to have two, three or four people arrested by mistake rather than allow one of these people to escape. That may be a rather cruel thing to say, but your life is at stake and that soldier's life is at stake and if you are going to be soft with an enemy while you are at war, you will not win. Kid gloves are no use at that stage. You must take such steps as are necessary to protect your own interests.

The Civic Guard is the civil custodian of your rights. Take away this provision and you are leaving him and the private soldier without the power they require in a case such as this. Under the Criminal Justice Act, a person must be brought to trial. There might be emergency regulations which would enable a person to be held for nine days but I do not think there will be any such thing. However, that is a different matter. Such a regulation, if made, must, again, be made under an Act passed by the Houses of the Oireachtas. Then, I submit, would be the right time for Senators to object to the lapse of that length of time between the arrest of a person on suspicion and the time he is brought to trial and not now when all we are seeking is the power to make arrests. In the legislation setting up the emergency power, you could then say that any person arrested shall be brought to trial forthwith, or within 48 hours, or as the Criminal Justice Act provides. To take this power of arrest away from the State which is at war would leave us in a very serious situation.

Mr. Douglas

I support this section as it will stand, with the addition of amendment No. 3 which we shall be discussing later. I feel that sub-section (3) states that a member of the Garda Síochána or of the Defence Forces shall not arrest a person unless he has reasonable grounds to suspect that the person is guilty of contravening sub-section (1). I think you will find that most people in the position of a Garda or a private soldier in the Army would not like to come before a court and be found irresponsible in their position.

I am satisfied that at a time of war no soldier or Civic Guard will arrest a person under this section and bring him before a court—which the person has a right to go before within, as the Minister said, a very short time— unless he has very strong grounds for doing so. I feel that this Bill is dealing purely with an emergency or wartime when conditions are not easy for the Government of the day and I consider that this section is quite satisfactory.

Dr. Sheehy Skeffington rose.

We must bring the debate on this amendment to a close. I will not permit Senators to speak a dozen times.

It seems to me that the Minister did not answer my question as to whether he would object to some addition to the present clause, which gives him all the powers he is asking for, such as "provided that such a person shall be indicted for the offence of which he is suspected within 48 hours (or a period of days)." He replied as if we all insisted on taking away all these powers. I said I would be satisfied to give those powers, if it was made quite clear in the Bill that such a person would have a right to be indicted within measurable time of the offence of which he was suspected. That in no way removes power from the member of the Defence Force or the Civic Guard, but it gives protection which, I think, most Senators would be willing to grant. I do not think the security of the State would be endangered in any way by asking that the indictment be made within a reasonable time.

That would be my point.

That is there already.

What about habeas corpus?

This does not affect habeas corpus or the position under the Criminal Justice Act. All it deals with is the actual arrest. It does not say that he shall be held.

Might habeas corpus not be suspended in time of war?

You would have a say in that, too. That is emergency legislation.

Nobody can make a state of war into a state of peace. I believe I have been accused of having no regard for theoretical law. I have, but I have had some practical experience. What the Senator wants is to make a state of war into a state of peace. He cannot do it.

Senator Cox answered the question because the fact is that the ordinary laws survive. If habeas corpus will be suspended, then there will have to be legislation in which the Houses of the Oireachtas will have a say. You cannot make a state of war into something which it is not and you cannot defend the country, except under certain conditions.

Dr. Sheehy Skeffington rose.

I have given the Senator every opportunity. He has already spoken five times.

There is just one point which I should like to put to the Minister.

Very well. One point, and a narrow one.

I could imagine circumstances in which it might be found necessary to suspend habeas corpus to deal with other cases, but in which it would be quite legitimate to allow this formal protection to be included in the Act for Irish citizens arrested on suspicion in these circumstances. Therefore, I would press my amendment.

Question put.

On a point of information, I am not clear about procedure. Before a decision is reached on the question, I should like to be informed of my position. I should like to introduce on the Report Stage another amendment along the lines I have just been suggesting. Would I be prevented from doing that if I do not withdraw this amendment now?

I am afraid the Senator would.

Ask a policeman.

In that case, I withdraw this amendment, if the House will permit me to do so.

Amendment, by leave, withdrawn.

I move amendment No. 3:—

In sub-section (3), line 26, to delete "as respects", and in line 27, to delete "that such" and substitute "to be a", and before "has" to insert "who".

I do not think I need speak on this now, because the principle has already been accepted.

I think that, having accepted the principle during the course of the debate on the previous amendment, I cannot say now that I will not accept it.

Amendment agreed to.
Section 8 agreed to.
Sections 9 to 12, inclusive, and Title agreed to.

When will the Report Stage be taken?

We might take it now, Sir, since all the amendments have been passed.

I would object. I should like time to sort my thoughts out on this and have an opportunity of putting down an amendment which would meet the Minister's objection to my original amendment.

He would want to consult a member of the Defence Forces on it.

Report Stage ordered for next sitting day.