I move amendment No. 1:
In page 2 to add to the section the following:—
"In this Act the expression ‘military custody'means the holding under arrest or in confinement of a person by the Defence Forces by virtue of a direction made by the Minister under this Act."
It is a little bit difficult moving amendments and dealing with Committee Stage immediately following the Second Stage because Senators may not have had the opportunity of digesting the amendments and seeing how they stand in relation to the text of the Bill. On Second Stage I dealt broadly with the amendments which I proposed putting down so that the Minister would have some advance knowledge of them, would have an opportunity of considering them and obtaining some advice from discussions with his Department regarding them.
The amendment which I am now moving is to cure what I believe to be a defect in the Bill as it stands. That is, to insert in the Bill a definition of what we mean by "military custody". The Bill as it came to us from the Dáil did not contain any definition of "military custody". It is an easy thing for anyone to say: "Of course we know what ‘military custody'is?" That is not going far enough, with respect to anyone who may feel like advancing that argument. We have imposed on us the obligation of participating in the legislation which is to have the force of law in this country. When we have done that our job ends. It is then a matter for the courts to interpret what we have done and any question that is raised with regard to the meaning of the Acts which go through this Parliament, any decision on that question, is a decision which has to be made by the judiciary—not by this House.
If we are lazy or slovenly in our work, we have merely to meet a temporary situation in order to accommodate a Minister who for perfectly valid reasons is in a hurry with the Bill. If we allow the legislation to go out from us in an unfinished and untidy way with loose ends, with defects of one sort or another in it, the only result will be that sooner or later the Minister will have to come back to this House with an amending Bill to try to remedy the defects.
It is a defect in this Bill that there is no definition of "military custody". The entire Bill is dealing with something called "military custody". It never gets around to face up to what military custody is. I ask the Minister to put in a definition and I am suggesting to him a definition which would cover the position adequately. I suggest that he should amend section 1 by inserting the words:
In this Act the expression "military custody" means the holding under arrest or in confinement of a person by the Defence Forces by virtue of a direction made by the Minister under this Act.
That is exactly what we mean by "military custody" in relation to this Bill—that following a direction made by the Minister under section 2 of the Bill when it becomes an Act, a prisoner will be transferred into the custody not of any servants of the Minister for Justice, not of any persons in the prison service but into the custody of the Defence Forces who are under the authority and jurisdiction of a completely different Minister.
The Minister for Justice is, in effect, hiving off, from his direct responsibility to one of his colleagues, the custody of prisoners who, in the first instance, were, broadly speaking, under the custody of the Minister for Justice or the servants or officials of his Department. I think the definition which I have suggested is accurate: I think it is comprehensive and comprises precisely what is in the minds of the legislature in relation to this Bill. It is not only that, but it is necessary. I could visualise a situation arising, if a definition is not put into this Bill, where a dispute could arise and an argument could develop and possibly an adverse decision could be given by the courts all arising out of the two words, which are used so frequently in the Bill, "military custody".
It may be it will be argued that the custody of persons in places which are not barrack prisons would not constitute military custody. It might be argued, for example, that if some of the serving personnel who were charged with the responsibility of custody of prisoners in any shape or form were not members of the regular Army but were, for example, drawn from the FCA, that the question of military custody could be challenged on that score.
There is an infinite variety of ways in which this matter could be raised, any of which might for all we know be successful if raised before the courts. We may let that situation go, we may let it develop, we may chance to luck on it. The Minister may say: "Well, surely everyone knows what military custody is; it is not necessary to do this."
He may chance his arm in that way and possibly he would be proved to be correct. Possibly no challenge would ever arise but are we, as responsible legislators, entitled to approach the matter from that point of view when there is a very simple remedy. The simple remedy is to put in a definition of "military custody" in the Bill, to write into the Bill what we mean by military custody. Would anyone object to the definition I have suggested? If they do, my attitude to it is, as I expressed on the Second Stage, that if there are any flaws in the drafting of this or any other amendment that I have put down I do not think it would be fair to oppose the spirit of the amendment or to defeat the principle of the amendment merely by verbal fencing, because everyone knows the exceptional circumstances in which we have had to consider this Bill and in which we have had to draft Committee Stage amendments.
Consequently, if the principle is accepted by the House, and I think it should be, it would be not only a prudent thing for the House to do but, to my way of looking at it, it would be a necessary thing for the House to look at it. If the House looks at it in that way and agrees with the principle, then as far as I am concerned I certainly do not press the particular wording which I have included in this amendment. If the Minister tells me there is another definition of military custody which he thinks would be better, as far as I am concerned that is grand, I will accept it, but it does seem to me that if we are to do our work properly here, if we are to produce a proper piece of legislation to deal with this situation, then we should include some definition of military custody in the Bill.