I must say last evening I was encouraged by the tone of the speech of the Leader of this House, Senator Michael J. O'Higgins, in his willingness to draw distinctions between different kinds of criticism and opposition to the two pieces of legislation which have come before us. He drew a distinction between those who criticised because they want no restraint placed on people who are involved in violence, who invoke republican aims for acts of violence, the opposition of those who oppose because they had brought in repressive legislation, and the position of the Fianna Fáil Party. He then had a residual category: the civil libertarians—a term which has been affording Senator Alexis FitzGerald great amusement for at least a fortnight. Above all else, Senator FitzGerald is a man who is consistent, as we must acknowledge, so the term will probably amuse him in the future. In his treatment of the civil libertarian category Senator O'Higgins was extremely fair and sensitive. He allowed that there was indeed a basis for feeling concerned about the legislation which was positively different from the other kind of criticism.
Having said that, it is one of the disquieting things about the debate so far, particularly when people see the force of the civil liberties argument, that people are willing to concede its essential logic at one stage in their remarks and then proceed to disregard it altogether in another part. Let me put this rather bluntly. Civil rights in the latter part of Senator O'Higgins's remarks were regarded as something abstract—I will give his exact words in a moment—and legislation, on the other hand, was presented as something practical. We were told that we are not living in a Utopia; that we are living in a real world of crime and violence, in a world in which we cannot be seen to be soft on issues of violence themselves which threaten democracy.
The general assertion therefore is that the civil liberties argument concerning this legislation is somehow weak. It is rather like saying that we are similar to those harmless old ladies who were just knitting socks and were not really part of the war effort. We are vaguely concerned people. The civil libertarians cannot be opposed because they have logic on their side. We must listen to them because it looks bad if we batter them because they are innocent, harmless people. Indeed, one person suggested, that, God help him, Senator Noel Browne had never harmed a fly. That is just not good enough.
The argument that is being presented by people who have been associated with civil liberties in this House so far has not been some kind of vague, fuddy-duddy argument. It is an argument that has been presented on clearcut logic and it is an argument that is being presented because we feel there are principles involved. Unfortunately, it is because people relapse into this kind of condescending treatment of the civil liberties case that it becomes necessary to return, very often, to the very principle upon which that case is based.
I would begin by reminding the House of the point which I made two weeks ago. Civil liberty is not a luxury. Civil liberty is not a residual kind of feeling that exists in a population, a feeling that it is some kind of fantasy recreation to be visited on occasion. Civil liberty, if one believes in a certain theory of the State, is the stuff of democracy itself. It allows the State to develop, to change and to operate within a system of guarantee and fairness. There are very concrete and urgent questions which derive immediately from this and to which answers must be given. I reiterate one of them which I made two weeks ago. What are the implications for a democracy when constitutional guarantees are replaced by ministerial intention?
Now unfortunately I have to disagree here with what my colleague Senator Ruairí Quinn, in a fine speech, has said. I do not think it is as simple as that you trust the Government of the day or simply that you are unwilling to accept Ministerial good intentions, or that by showing concern for guarantees you suggest that the Ministers are inadequate to fill their particular offices. The crunch question is: how valid is a ministerial good intention as a substitute for a constitutional guarantee? In the history of law, that is a very important transition, and it is quite ridiculous to try to ignore the implications of it. Here I want to remind this House that we have been given advice in making this kind of assessment.
So far I have been saying the principle of balance is involved. In what circumstances can we suspend an aspect of individual guarantee in the Constitution and replace it by ministerial intention? It is suggested that you can trust the Minister of the day, you can trust past experience, it can never be abused and so. I have been saying that intention itself is not an adequate substitute for guarantee. I now say something else as well, something I have said before, that present circumstances offer evidence—the many people killed, the many people injured. People will say that all of this justifies taking a short-term measure coming down heavily thereby on the side of the suggestion that you can have a ministerial discretion and that you can have law that will deal with situations at the present time.
In the other House the Parliamentary Secretary to the Taoiseach, Deputy John Kelly, had this to say, at column 337, Volume 292 of the Official Report for 2nd September, 1976, and it is an instructive passage coming from a distinguished jurist:
History will not be too sophisticated in sorting out people in the way they behave in this crisis and historians will not be too careful in reading politicians' histories, as to whether they had good reason for this sentence or that sentence. They will be looking for the large lines of history, to see who in this moment of crisis stood up to violence, who condemned violence unreservedly, who threw his moral weight, whether heavy or light, into the balance against it, who tried to bring his constituency organisation with him in facing up to it and condemning it and in never temporising with it or making excuses for it; and who did not. That is what history will be interested in.
That version of history is a kind of a cross between history written in the time of Carlyle and the cowboy comic. It is the notion that anybody who has managed to persuade anybody else that violence condemned in any way under any fashion by any number of people will be what will interest people. There is a very good line in his speech. At column 338 he said: "They will be looking for the large lines of history to see who in this moment of crisis stood up to violence." I would rewrite that sentence and I suggest that people will be looking to the large lines of history and the test will be as to whether the legislative response was over-reaction or whether it was being calm and keeping one's nerve.
To return to some more close terms that have been used in the Bill, one Senator has correctly suggested that many terms are used which should be given more definitions. The Minister in the course of his opening speech said:
This is the only emergency measure considered by the Government to be necessary at present to enable the Garda to deal more effectively with the problems created by the activities in our society of subversive groups.
Now already we have had quite a discussion as to what constitutes a subversive group. Last evening I think we had a long, perhaps too long, quotation by Senator Noel Browne from the Minister for Justice's speech in St. Anne's. I think that that speech was unfortunate. It saw university organisations, students' organisations, infiltrated by subversive groups and individuals. It was almost a McCarthyite speech, and I know it probably is not a fair selection of the Minister's thoughts but just one of those unfortunate speeches that are quoted. I do not want to dwell too much on it, but it highlighted the arbitrary nature of his definition of the word "subversion". To someone like myself, who has for all his political life attacked the private enterprise system and the related institutional arrangements that prop it up, for example, the way the notion of profit is inculcated in children, is that subversion? If I write on the many ethical and social advantages of having a socialist society, is this not to subvert the minds of people in a different way of life?
This legislation is felt by the Government to be necessary at present to enable the Garda to deal more effectively with the problem created by the activities in our society of subversive groups. Even if one agreed that the word was a useful one, which it is not, who in fact is to give it content? Again here there are many social implications: those from middle-class backgrounds often see a mixed school as a major threat to their life style. Again, people who believe in right-wing Catholic orthodoxy think that they can best advance Christianity by having schools which are separate from Protestant schools. Then we come to the class differences. It may be a particular class content who makes this definition of subversion and this will be shown in the definition itself. It is a bad term and it is a bad term to use in law. I offer this opinion as a non-lawyer, but my opinion is that it is a bad term.
Another word which has been used loosely again and again in the debate in this House and in the other House has been the word "order". What is order? Take, for example, the latter day Chinese development around the time of the Cultural Revolution. The orderly development of Chinese political consciousness just after the Cultural Revolution would be that groups would never crystallise so that social change would never take place or that a leadership group could never become so harmed so as not to be amenable to change. In other words, the notion of there being a continual dynamic was their version of order. But if we mean by "order" the protection, willy-nilly, in any form of institutions which are regarded as being immune to criticism and which are wrongly but carefully and systematically imagined as serving the majority when in fact they serve an élite, then no social change can take place in society.
Or is it that we are going to have the notion that extended good works will replace adequate social change and social criticisms and political reflection of that social change? We will be told there are plenty of things to do, visiting the old, visiting the young. The way we are going, if you will excuse my being amused by it, there will be so many of the young with a lot of time on their hands that they will be indeed able to visit the old with greater frequency, which may be a good thing. The notion here, then, is that "order" is a word which is used in a very restricted sense.
To turn to the Bill in detail. It is acknowledged that most of all the issue raised in this legislation, this very short document which comes before us, is section 2. Most Senators have confined themselves to discussing the implications of section 2 (3) which deals with detention for seven days. One need not be a lawyer to make a judgment on this. I think that Senator Mary Robinson raised a question which is not only important legally but also socially and politically: what is the purpose of this detention for seven days? Is it to remove people from circulation and, if it is, she dealt then with its test for adequacy for that purpose. Or is it in fact to find out something else, to enable the police to investigate in a particular way? Then this raises other questions. My own view is one that goes beyond this necessary legal distinction, and it is a question I think that must be answered in the reply as to what will be happening during these seven days. I think that in practice— and after all here in this House we have to deal with the totality of our experience, not only what is legally possible—it would be extremely difficult to ever monitor a detention so as to ensure that it would either cleave with one definition or with another definition of purpose. It would be practically impossible. Therefore I must react to the period of seven days or rather the increase of five days in the light of what it is, the extension of the period of time in which a person can be held.
In making one's assessment a number of considerations immediately arise to mind. If one was to say there are people who are perhaps directly involved in committing acts of heinous murder, dreadful crimes, people who have fired shots and people who are involved in kidnapping and so on and that by keeping them out of circulation one could prevent these acts, one could say that some kind of a case had been made. But in the absence of one being able to conclusively show this, what one must do is take this legislative action in Ireland and set it against actions that are taking place elsewhere. One must say to oneself where has seven days detention been applied before in the free world, under what circumstances, and what has happened in general during those periods? We may feel a great concern, but if we feel concern we should show an adequate legislative response to the number of people killed and the number of people injured. But it is necessary, too, that we take a cognisance of the reports that have been published which show an abuse of periods of detention, and it is unfortunate that we are considering this extension precisely at a time when there is a growing volume of evidence in the world about the abuse of persons and the abuse of freedom while persons have been held in detention.
To return to a point that I mentioned at the outset, people will suggest this is all very fine but this is to deal with what the Leader of this House referred to last evening as "academic niceties." He said people who indulge in "academic niceties" deal with violence with, and I quote him, "cottonwool softness." With respect what I am suggesting is this— precisely in the same way that Senator Ruairí Quinn saw it—that to react with over-repressive measures, to indulge in counter-terrorist activities, is in fact to give a present to the terrorists themselves. I am suggesting that the effect of suspending or circumscribing civil liberties in any way is wrong. We are not willing to be stampeded into eroding what are our essential liberties because we are being threatened, and I want to promise the Minister here that when it comes to murder, when it comes to robbery, when it comes to intimidation—and in my speech on the emergency motion I went much farther and said when it comes to spreading fear—any Government and any Minister who come into the House will have my unconditional and full support. However, I am speaking as someone who is concerned purely from the point of view of freedom. At the present time we are creating an atmosphere which will play into the hands of the very people who are committing these acts of violence.
People have been speaking of public opinion. Some Senators say that public opinion is with them; others say that public opinion is with someone else. As someone who has been involved in carrying out polls professionally I would never accept the result of a poll. I do not believe in them. From the people who have been talking to me about this legislation, and before that from general conversations I had with members of the public, my impression was that there is a great disgust in this part of the country for the Provisional IRA and for their action. I think that there is a disgust for them in Northern Ireland. It is true that it is difficult to change people's attitudes to change, over the age of 40 or 50 let us say, and there are people who will support these people, these murderers, in any circumstances. But I think that there was a growing popular opinion against them. But by showing your anxiety to circumscribe civil liberties, you are giving them an opportunity to incur some sympathy from the public, however indirect and however vague. As well as that the arguments that have been made from genuine civil libertarians are being fired willy-nilly into the Provisional camp and this is unfortunate.
Senator Browne last night made a comment which I think is quite valuable. It is something that we discussed at some length in the debate on the motion and need not concern us here, but it arises in the next legislation in extense and it arises to a lesser extent here. He asked the question: looked at historically what has been the positive response of legislation which might be in the category of repressive legislation, what has been its result? He asked what had been the result in the '20s and '30s and '40s and '50s and now in the '70s? What effect has this kind of legislation had in practical terms? If you heap repression on repression on repression on repression, what will you achieve? He made a suggestion in reply to that rhetorical question. He suggested that the roots of the problem may in fact lie in the guilt with which all of us carry.
I think we carry a very great guilt in not having been more critical about the influences that have shaped us in our experience, through educational forms and through other social forms —in being willing, for example, to put up with intolerable social and economic conditions in this part of the island. I think this just answers the question which I might pose: is there any such thing as a legislative measure which can deal with the fear and the terror and the threats that exist in this island at the present time? The straight answer to it is that there is no legislative response. The only legislative response that would adequately root out fear and intimidation and terror all over this island would be primarily an invitation to a positive philosophy of life with the related practical—eminently practical because it deals with life—philosophy that would deal with social and economic relationships from a communal rather than from an individual perspective; and to have an educational system which taught those values.
You might say: does this not interfere with freedom in some way? I will come back to the principle of balance again. If we are asked to strike a balance as to whether or not we will ever interfere through the spirit of our legislation with individual liberties the answer is not simple. Is it not a real argument that, when we come to take the longer view, maybe we should interfere with economic liberties so as to ensure the economic and social survival and development of the community as opposed to individuals or an élite. I will be honest to this House about that. That is a time when I will willingly indulge in a debate as to what is an appropriate balance, and I hope we will have to do it sooner rather than later.
The next Bill is one which raises more questions concerning the social background to the commission of acts of violence themselves. This brings us to a valid point raised by Senators Owens, Robinson and Browne: the threat posed to those workers who are not protected under the Trade Disputes Act, 1906. By the placing of a picket, the people not protected under this Act could find themselves in some danger.
It was Senator Robinson who suggested—I am not quoting her— that the trade unionists should be adamant in trying to ensure that section 7 of the Conspiracy and Protection of Property Act, 1875, was removed from the Schedule which enabled members to be so placed under threat in so far as they had not got the protection of the 1906 Act. I agree wholeheartedly with the Senator here. Indeed I share her wonderment that the trade union movement did not react in 1972 when this section was included. I mentioned in my speech two weeks ago two aspects—I will refer to them for short term purposes as the two Gardiner aspects—of this kind of legislation. In his criticism of this type of legislation Lord Gardiner suggested that there were two tests by which we could assess such legislation. First of all, how sensitive is it in its scope. Senator Robinson has dealt with this in some detail. The second criterion he had was that of duration. Obviously that point has been made again and again as to when these measures will lapse. There is a refrain going through this debate which is insistent. It is the more interesting in that it is coming from some of the more distinguished Senators.
Here I return to Senator Alexis FitzGerald who referred at the outset of his speech yesterday to the timidity of western governments in standing up for democracy. The Senator suggested western governments were becoming timid; the general idea was that you would wake up one day and democracy would be gone. This relates to part of the argument I was making some weeks ago concerning the liberal position. It was always an old flaw in liberal political philosophy that at the end of the day the liberals would take the most repressive measures to defend what they called liberalism. Thus in every democracy where constitutions have been suspended, it has always been invoked in the name of the common good. People have said: "We need to suspend the Constitution and individual liberties because the common good requires it at this time". We have always been told that the Constitution would come back. It has happened in every State in Latin America where this type of activity has taken place.