The Judges' Rules contain a preamble which I would think to be a correct statement of the law here. These are administrative rules. They are a guidance to the police so that they will conduct their inquiries in such a way that evidence will not be inadmissable in court against the people whom they seek to convict on the evidence they get. They are not rules of law. They have at the moment in Britain a preamble which I take to be a finding of Queen's Bench judges and this is a good indication of what would be found to be the rules here. I want to quote this piece because it is important enough to be put on record.
These rules do not affect the principles.
(a) That citizens have a duty to help a police office to discover and apprehend offenders—
a duty which is more honoured you may say in the breach than in the observance but it has relevane to the question of employment of military—
(b) the police officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station
(c) that every person in any stage of investigation should be able to communicate and to consult privately with a solicitor—
—That is stated as a principle—
This is so even if he is in custody provided that in such a case no unreasonable delay of hinderance is caused to the process of an investigation or the administration of justice by his doing so.
(d) When a police officer who is making inquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence he should, without delay, cause that person to be charged and informed that he may be prosecuted for the offence.
The final provision which has a strong comment on it, is:
(e) That it is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression.
A principle set out in paragraph (c) I suggest is overriding and applicable in all cases. I suggest to the House that it is overriding and applicable to the cases of all persons held in custody against whom charges are brought in any subsequent proceedings; that the judges will require as a principle of our law, even if the Constitution were abolished that the confession was voluntary.
The matter has been dealt with in a whole series of cases, which I have assembled here but they are not orderly enough to quote from them immediately. One of the cases, which is not too old, is that of a Customs case against a man called Harz, Commissioners of Customs and Excise and Harz and another respondent, reported as a House of Lords' decision as recently as 1966. It is interesting to note that in the course of Lord Reid's judgment, he says:
Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not.
This is interesting because it may come for the consideration of the court as to whether or not under the law there has been any express right claimed by the Executive here to require a person to answer and incriminate himself. There was an earlier Irish Act, an earlier Customs Act, where Chief Justice Sullivan, I think, held that because the defendant or the accused person was "obliged to answer truthfully", because these words were in the legislation, this in fact set aside the ordinary principle —this would not be a matter of a constitutional right—that he could not be required to incriminate himself. It is a matter for consideration as to whether or not it applies in this particular case. I have quoted it as being relevant to this question.
It is untrue to say that the accused can be rearrested, although it has been held in the Lawless case that they can be detained within the internment provisions of the Offences Against the State Act, 1940. A member of the Fianna Fáil Party, a lawyer, actually said that they could be assaulted. This is absolutely untrue. If they are assaulted, they can bring charges which could be not merely of a tortrous but of a criminal nature in the conditions of their detention and they will succeed if they prove their case.
Somebody has mentioned that they can be tortured. This is not merely untrue but a gross misinterpretation of any intent of the Executive. I would join with all Members who wish to see that every safeguard is taken in the circumstance which have brought about this legislation, to prevent any degeneration in the attitude of a highly-respected force which could lead to such suggestions.
I do not want to be misunderstood because the Garda are entitled to an expression of belief in them and in their morale which I hold, but my own opinion on this matter is well expressed by the late Kevin O'Higgins who uttered the strong words: "If the police break the law I'll break the police". Having said that, I want to emphasise that I have absolute faith in the force and in their ability and preparedness to do what is right, to comply with the law and to be fair. They, too, are in sympathy with the people; they do not want torture or any abuse.
There is no use at all in enacting legislation of this kind if it alienates the people. There is no use— and this is the important fact—in attempting without the support of the people to combat this mischief which I regard as a conspiracy to take away civil liberties from people. That is, in essence, what the IRA are all about, suppressed under a proclamation bearing the signature of Éamonn de Valera and continuing to be supressed by virtue of that order to this day. That is the only order in existence which makes it, by presumption, an unlawful organisation which attempts to suppress the civil liberties of the people; it attempts to take away from them their right, not merely to live their own lives as they choose to live them within the law but it attempts to frighten them. It endeavours to take away from them the right to freely remove this Government from office and to put in another. It attempts to usurp the functions which are vested by the people in the Executive elected by Dáil Éireann. They attempt to determine what our foreign policy should be; they attempt to take from the people their right by free voting in free conditions to determine who shall have the power of making laws, who shall be under their judgment and how they are to be judged.
I am not concerned with the political question of whether any other organisation ought to be suppressed. That is a political question requiring political judgment. All I know is that one particular organisation has been suppressed as unlawful. There are other unlawful organisation which can be proved to be so. The mischief they represent must be measured against the Bill which this Government must have felt sad about introducing which the whole controversy indicates the people are sad at having to face and which I am sad at having to support. Let us know who are the creators of this small subtraction of liberty from people who are capable of being suspected of committing offences or having committed an offence. It is the unlawful organisations that are in question. They are the cause of this legislation. If there is any subtraction from liberty it is caused by the unlawful activities of people who will not even give the people the right to draw breath against their wishes if they decree, by some mysterious processes of their own decisions, that their lives are to be terminated. They are prepared to denigrate in a tradition which, admittedly, has long deluded them. I find myself very much in agreement with what Senator Noel Browne said in the course of the motion which led to this Bill with regard to their education and political background. I agree with Senators Horgan and Robinson about the battle for the minds, wills and hearts of the people. I agree with these Senators and, I think, with Senator Higgins also. I agree that this is only a short-term measure in the sense that it is only one part of the one set of techniques which we are forced to adopt.
But let us not fool ourselves. What if we had abrogated the Constitution, which we have not? I will give examples of those Articles of the Constitution which are still alive and kicking, kicking against us as Members of the Oireachtas, kicking against the Executive as operators of the executive power. Let us realise what we would have done if we had abrogated the Constitution in its entirety. We would have created a situation in which we would have been as unfree as British subjects and no more unfree than British subjects.
If this Bill subtracts from the liberty of certain suspected persons in the manner in which it clearly does, let us be quite clear a similar subtraction has been taken by an Act freely enacted by the House of Commons and the House of Lords. Let us understand that they could in the morning do all sorts of things with regard to the abrogation of people's freedom which cannot be done here unless in the same British conditions we have a people prepared for what further subtraction is necessary, unless in these conditions people are prepared to accept it. At the end of the day it is the people who will decide whether this was right or this was wrong. If we in this party, or in the Labour Party, wrongly judge that this is necessary in the people's interests to protect the people's civil liberties, the cornerstone of civil liberties is the maintenance of the order, which regulates the matter of their exercise.
Let me remind the House that it was a British Labour Government which introduced the Prevention of Terrorism Bill and duly enacted it. It is substantially the same with respect to Senator Horgan. The differences, which I will argue when we get to the Committee Stage of this Bill, are not as substantial as to make it anything important. What is significant is that there was no difficulty for that Labour Government in introducing it in circumstances infinitely less dangerous to the British people than the circumstances in which we live in this State at the moment. There is nobody who would dare say properly of the IRA that they are claiming to be the Government of Britain. There is nobody who would dare say of the IRA in Britain that they are pretending to represent British policy. Nobody could possibly suggest that the IRA are representing Britain to the world as truly expressing majority British opinion.
What are these people doing? They are challenging the very legitimacy of the institutions which we are operating when we freely speak in them. They are challenging the people's rights in their fullest powers, and they are challenging them by fear and intimidation. People say that there is no emergency, some justifying it on the most trivial grounds that the Houses have not sat over the weekend; some have suggested it is bogus; some have said it is too late. I would judge it not too late not to be counter-productive, not to be an over-reaction.
There has been an over-reaction, which I understand is due to a complete misunderstanding of what is not in this Bill but is in the other Bill. May I just tell the House some of the things that are not in this Bill? There is not in this Bill what there was in the Emergency Powers Act, 1939. Section 2 (1) of the 1939 Act reads:
The Government may, whenever and so often as they think fit, make by order (in this Act referred to as an emergency order) such provisions as are, in the opinion of the Government, necessary or expedient for securing the public safety or the preservation of the State, or for the maintenance of public order, or for the provision and control of supplies and services essential to the life of the community.
It was later amended to make it quite clear that the list set out in section 2 (2) did not exhaust the powers of the Government or in any way limit the powers of the Government under subsection (1). May I refer to one or two of the things that are contained in subsection (2) (h)? The gentlemen of the press might take note of the fact that the very proper advice that the Government of the day got to introduce what they did introduce was that they could not take the power of censorship unless they took it by virtue of an Emergency Powers Act. It is not contained in the Offences Against the State Act which was permanent legislation. It was not introduced in that because it could not be introduced. It would have been unconstitutional if it had been in that permanent legislation, but it was included in section 2 (2) of the Emergency Powers Act, 1939. I am going to say something which the gentlemen of the press ought to remember in fairness to Fianna Fáil with regard to that and I quote:
...authorise and provide for the censorship, restriction, control, or partial or complete suspension of communication by means of all or one or more of the services maintained or controlled by the Minister for Posts and Telegraphs or by any other means, whether public or private, specified or indicated in such emergency order.
That provision is not contained in this Bill, nor was it intended to be contained in this Bill. If that were contained in the other Bill, which it is not, it would be unconstitutional. The other Bill can in no way be protected from the provisions of the Constitution giving liberty of expression and guaranteeing freedom of expression to the people.
In favour of Fianna Fáil I should like to say the truth of the matter is that all the parties represented in this House have over the years had an identity of view with regard to an assault on the institutions of the State, an assault on their liberty. There may have been an error of judgment in duration on this or on that. There may have been opposition voiced in public which would have been voiced in private within either party in any case.
It is fair to say of Fianna Fáil that section 6 (1) of the 1945 Emergency Powers (Continuance and Amendment) Act, which Senator Lenihan thought was the end of the emergency powers legislation, which it was not, continued until 31st December, 1957, by virtue of his own support in that year, stated that:
Nothing in section 2 of the principal Act shall be construed as authorising the Government by order under the said section—
(a) to authorise and, provide for the censorship, restriction, control, or partial or complete suspension of communication by means of all or one or more of the services maintained or controlled by the Minister for Posts and Telegraphs of any other means, whether public or private, or,
(b) to make provision for prohibiting the publication or spreading of any matter, or to authorise or provide for the control and censorship of newspapers and periodicals, ...
It is interesting to those who think that the Executive in Ireland can or wants to take steps which involve suppression of people's liberties. They do not for the good reason that they know people do not want it so, except when it is necessary, as it was in 1945. I will agree that the same Fianna Fáil Government made in 1946 a curt decision to withdraw and terminate it. I will go further and say that if there was any real tendency at that time towards dictatorial power— which I never thought for one moment and do not to this day in relation to the current Fianna Fáil Party—they might not have been put out of office in 1948 if they had not repealed section 6 of the 1945 Act. If there had been some type of political dishonesty involved—as Senator Robinson suggested, but she may not have used those exact words—there was a good excuse for them to pretend that nothing was really safe quite yet. But they did not and in due course criticism of them mounted and they were put out of office. The point I am making is that they were advised in 1939 by their law officer that it would be necessary to have this under the protection of a resolution passed by both Houses of the Oireachtas. It ceased when it was no longer necessary for the protection of the safety of the State.
The word "state" seems to upset some people. There seems to be some suggestion that this is some legal word which is a justification for doing anything in the interest of the status quo. Somebody recently distinguished for me the state from the status quo. One of the noblest people involved in the Easter Week Rebellion was James Connolly. He was referred to by Senator Browne or some other Member of this House. James Connolly was quoting St. Augustine when he said that it was up to the people of Ireland But he did not use the word “state”. His language can be used much more in criticism of the republican tradition —because he was a socialist—than of the type of society which we now have and which is moving in the direction in which it will inevitably move. “Ireland needs nothing but the people of Ireland”. That is exactly what St. Augustine said about Rome, or, to be precise, “What is Rome but the Romans”. It is the people we are talking about when we are talking about the State. It is their liberties we are talking about, their welfare and the protection of their rights, their ability to choose and put out Governments and to accept any political philosophy they want to whether it is our philosophy or not. It is their power to do that. These powers are in no way affected by the provisions of this Bill.
Perhaps we could be honest with each other on this. There is some talk about the Labour Party wrestling with its conscience. This type of wrestling with conscience goes on in all parties in relation to all sorts of issues. It is a matter of public knowledge that there are differences of opinion within the Fine Gael Party, differences which are on the records of both Houses, certainly on the record of the Dáil, with regard to the 1972 Act. There may be even differences of opinion at this moment as to the precise form, timing and nature of this legislation. There is in all parties a lesser or greater appreciation of the importance of strengthening the institutions of the State so that these institutions can protect the people and the people's liberties.
Deputy John Kelly made a particularly good speech on September 2nd in the Dáil which seemed to get lost in the swamp of protests in the reporting generally. He talked about the timidity of western Governments in standing up for democracy. If that timidity is not replaced by determination that it should be otherwise, these democracies which I believe are capable of doing great things, whatever criticism you may make of them, are certainly better than any institution of society existing at the moment.
With regard to this whole question of Fianna Fáil, Fine Gael and Labour, let me just quote Law in the Making by C.K. Allen, 1961, 6th edition, when he talks of the effects of legislative industry, which is what we are engaging in. He epitomizes in the terse phrase, “Laws foster or create law-making opinion.” In connection with one of his fully expounded examples of reformative legislation on the status of women in England he sums up:
Law and opinion are here so intermixed that it is difficult to say whether opinion has done most to produce legislation or laws to create a state of legislative opinion.
Then there is a comment on the suffragette movement and so on:
The popular consciousness with which legislation must always stand in harmony, at least in societies with representative government is the code of prevailing convictions which we call public opinion.
He goes on to quote Dicey:
There exists at any given time a body of beliefs, convictions, sentiments, accepted principles or firmly rooted prejudices which, taken together, make up the public opinion of a particular era, or what we may call the reigning or predominant current of opinion and as regards, at any rate, the last three or four centuries, especially the 19th century, the influence of this dominant current of opinion has in England, if we look at the matter broadly, determined directly or indirectly the course of legislation.
So it is true of Ireland. Can there be any doubt from the course of elections—and I have not gone beyond the year 1939—and the answers at referenda of the attempt of lawless conspiracy to stifle the people's liberties, the civil liberties that the civil libertarians want properly to preserve? Can there be any doubt as to what is the prevailing public opinion on this matter, a public opinion which none of us, either Fianna Fáil or Fine Gael, should try to exploit? Very little divides us on this; and the same is true of Labour. Labour has its honourable abstainers, even honourable opponents to this legislation. This is a good thing. Is it thought that there is no conscience in either of the other parties? Is it thought about this Government, with all the support we want to give it because we believe it is seeking to make this society one that we will the more value, one that we believe will be regarded as the more just? Is it to be thought that if for example, the Taoiseach was seated there instead of the Minister who is substituting for the Minister for Justice, that I or other Members of my party would be found accepting any serious attempt similar to, for example, the Emergency Powers Act of 1939? Is it thought that we would vote for these measures? Is it thought that Senators Owens, Quinn, Mary Robinson or any other Senator would vote for them? You know it is not true. You know that the Bills would not even come in here and it is because of this matter of public opinion and the shared view with regard to all of this.
On the last occasion I tried to say that the cornerstone on which the whole edifice of the civil liberties is erected, is the support which the citizen gives the Parliament and the Executive for executing the laws of Parliament. Without that support, it is no good paying your daily debt; it is no good if we do proper acts of redistribution of income or wealth between people. None of this is any good unless the citizen himself is concerned to support the State and unless the State governs, making the decisions it has got to make, the brave decisions it has got to make in necessarily in direct conflict with the freely expressed opinions of the time, many of them beset on misunderstanding as to what is involved and based on an insufficient jurisprudence, an unsufficient understanding of the basis of all law; that the authority of the law maker derives essentially, ultimately and freely from the people.
I should like to put this final point to the House, and that is: in 1932 in Germany there was a very fine Constitution. I remember getting lectures on it, its qualities and the refinements of that Constitution and how delicate all the balances were. What we had not got in Germany at that time was an executive which was strong enough in its own self-confidence to defend the democratic values which were valued by the people of Germany then. We had not got an executive prepared to face up to Hitler, to face up to and suppress an illegal organisation, an organisation whose founder had declared his intention to take power by violent means if necessary, although he was lucky enough to perform a constitutional trick and get his power that way. But he had declared his intentions. If we were talking about a Nazi conspiracy now, in Irish terms how close is the IRA to a Nazi conspiracy? It is close because it is prepared to use violence. It is close because it is extremely nationalistic. It is close because it exploits an ancient belief of the Irish people. If necessary, measures which will not devalue the democracy whose values we should seek to preserve should be taken.
I wonder if the letters to the newspapers would have been different. I wonder if the judgments of the different associations would have been different. There are so many of them now I am lost. I would want to get a list of scheduled associations with regard to civil liberties. I do not know which is the good one, which is the semi-good one, or which is the louser. I know you have got to be very careful dealing with perfectly respectable bodies because I am not sure which of them is which. What if this law was directed against, for example, racial discrimination? What if this was a law promoting racial discrimination? Do you think there would have been quite as much correspondence as there has been. This would have been a popular liberal theme that you should not racially discriminate. For God's sake, get it clear. I am not in favour of racial discrimination. Let us get that clear in case anyone should misunderstand it. Say, for example, there was such a move afoot and this was a Bill attempting to deal with it and was subtracting from their civil liberties by giving a superintendent the power to extend the detention of persons who were concerned to pursue this vile objective. Would we have had quite so many resolutions, quite so much expression of concern? I suggest not.
It is worth considering why it is so. For many years I have puzzled over it and I have not yet found an explanation. Why is it that liberals who value freedom of expression of opinion would never allow anybody else to disagree with them? Why is it that liberals are always saying the same thing? If what they are fighting for is the right of free expression, surely to God they should be expressing different opinions from time to time instead of the same opinions. We ought to value the liberal tradition for the reason that we own to that liberal tradition in Britain more than we have ever allowed for the establishment of this State.
Instead of Senator Lenihan telling us that the Minister for Foreign Affairs was misleading the United States industralists in Killarney last night by telling them that the Constitution was not abrogated, Senator Lenihan ought to go on the radio and withdraw that remark. Senator Lenihan ought to tell the United States industrialists and Greece—I gather some woman has written to say they are not to come here on holidays any more because we are living in a state of total suppression— that our state of suppression is this; we are as subject as the subjects of the Queen; we are as terrified as the citizens of London. We have more liberty than the subjects of the Queen.
It is a gross misrepresentation of this State and of what the people of this State want, or would ever support, to suggest that we have suspended the Constitution, that we have limited the free expression of opinion, the freedom of thought or any of the other personal liberties. We have done one small damn thing, or are proposing to do it. We are proposing to give to a Minister who has made a judgment, in company with the other members of his Government, that he needs a certain power. Presumably he has asked that this power be taken by the advice from his security advisers, which advice it may be presumed under our system has been sifted by the civil servants who advise him; that this small power is taken and taken only to protect people and that this power goes no further than in the small detail that the extra five days are to be certified for in Britain by the Home Secretary and certified for here by a chief superintendent.
I ask you, is that such a monstrous inversion of order? The Minister for Justice is answerable anyhow to Dáil Éireann for the performance of the Garda. It is a matter of political judgment. Maybe that should have been the decision of the Government. Maybe it should have been the Minister for Justice, but if it is not, how material a matter is that—unless we are going to take up in this House, as I certainly do not think any one of us want to take up in this House, that we lack confidence in the professionalism of the Garda in their desire to do that which is right, in the desire to combat mischief by methods which are not themselves mischievous? If damage has been done, the mischief makers have done it.
I dislike this legislation. It has been forced upon us to introduce it. The creators of the mischief who have led us to do what is a sad thing for us to have to do are the IRA and all those who have engaged in violence and all those behind them who have taught them to believe in violence. They are the real mischief makers and this Bill and its sister or brother lying completely within the ambit of the Constitution will only succeed if the people are not misled as to its contents, are not misled into a belief that all the provisions of the Constitution are not there still to protect them, that theirs is the right to raise and maintain an army and theirs only. But let it be said for the Fianna Fáil Government, that even when in the middle of the war they established a military court without power of appeal and with a right to try people, convict them and to sentence them to death without appeal, even when the emergency powers legislation which was then used and then successfully operated to protect the liberties of the people at that time, the article of Constitution providing that they shall not be deemed to be offencer which were not so at the time they were committed, was not ignored, as it could have been. Even in the heart of the war that was not done, even with censorship in full operation that was not done. But the people's right to vote, their right to require the Taoiseach to come before them, for the Government, to come before them for judgment, to have a secret ballot within periods of years provided, none of these rights are anything other than preserved by this legislation. All their other liberties set forth in the Constitution are there.
Damage will have been done to the tourist trade no doubt. People will have been frightened, people who do not know our situation. I do not think the people of Ireland are frightened by this legislation, though they might be frightened by a Government that have not the courage to go ahead and face into this organisation. It might be frightened by timidity and division in the Executive, and there has been no timidity and no division in the Executive. I share the regret that has been expressed by Senator Quinlan in this House, that there was not consultation between the parties before this was enacted. I share the regret that in the nights of December, 1972, Fianna Fáil had not consulted with us when I said, speaking for myself: "If you had come to us we would have given you any power you wanted." I may add that Senator Boland, more alert to what I was saying than I was myself, made a far better speech later and said: "I am sure he meant any reasonable power", which of course was what I meant to say. But I am not very good at doctoring the record of what I actually said, so I am afraid it is there. However it was not a good precedent. Because it was a bad precedent it is no reason to follow it. I am sorry the parties are divided on this, because I think the parties ought to be united on it.
I am in full support of this Bill and recommend it to the House.
