Section 4 is opposed by Deputy Cowan.
SECTION 4.
Question proposed: That Section 4 stand part of the Bill.
I put down the amendment opposing the section for the purpose of having the Minister's views in regard to the necessity for the section. In a general way it is a very undesirable power to vest in a Government, that is, the power to declare that a state of emergency exists, with all the repercussions from that declaration. I just wanted to hear the Minister's views in regard to the necessity for that section in that form.
It is necessary because quite a number of the provisions of the Bill will become operative only when a state of emergency under the Act has been declared. A military state of emergency may not be similar in duration to a general state of emergency. For instance, it was possible on the last occasion to declare the military state of emergency at an end long before the general emergency terminated.
It has not terminated yet.
The latter was governed by supply and other considerations. The Deputy may remember that we were able to demobilise the Army by declaring the military state of emergency ended. I think that was in September, 1946. As a result of that, men who were held in the Army compulsorily, whose time was up, were automatically released. It also enabled us to demobilise generally. There is nothing sinister in this. Any one who throws his mind back to the last emergency will, I think, be satisfied that, as things were, the powers were used in a very reasonable manner.
There is only one thing that I would like to say with regard to it. I did note down this section as one that required some elucidation. There is a reference to a state of emergency dealt with in Article 28 of the Constitution, and very clear safeguards are given to the people in relation to their rights and the manner in which the state of national emergency may be declared. There is no greater threat to the liberties and rights of the people than a misused Army. My own personal view is that the Government should not under any circumstances have the right to declare a state of emergency which brings into operation very wide powers under this Bill, until both Houses of the Oireachtas have a right to review and check the exercise of powers under this Bill. This section should be confined to a declaration by the Government of a state of emergency subject to review by the Oireachtas. Under sub-section (4), Parliament has no right to review any decision the Government may come to and all of us Deputies might be put to jail for all we could do about it.
This section is the same as Section 4 of the Defence Forces (Temporary Provisions) (No. 2) Act of 1940, which operated during the last emergency. Sub-section (4), to which the Deputy refers, makes it clear that every Order made under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas and be published in the Iris Oifigiúil.
The Houses of the Oireachtas can do nothing about it. It " shall be laid before each House of the Oireachtas " but no resolution can be passed annulling it.
If the Houses were of the same opinion as the Deputy expressed, surely they would not allow a Government to misuse its powers. I do not think they would.
I wonder has any consideration been given to the possibility of a conflict with the provisions of the Constitution?. Under Article 28 a resolution must be passed by both Houses. While the provisions in Section 4 are comparable with the provisions in the earlier Defence Forces Act, I understand that that Act was enacted subsequent to a resolution being passed by both Houses. There was a resolution passed by both Houses at the outbreak of the emergency. I think this section is probably necessary, but I would suggest that a provision should be included in it that no state of emergency would be declared except after a resolution passed by both Houses.
Was not the position something like this : First of all, the Constitution is paramount ; secondly, the declaration of an emergency under this Act would not be construed any further than the Act. The Government making a declaration of emergency for the purpose of this Act would not go anything further than the Defence Forces, so that the net result would be to put the Defence Forces on an emergency basis, and would not add anything further to the powers of the Government in relation to persons not subject to military law.
I do not quite agree, Sir. There are powers in relation to taking possession of premises that can only come into operation under this Bill if the Government declares a state of emergency.
That is not correct.
I did note some sections that will arise later. The Minister has mentioned sub-section (4) as being similar to a sub-section in one of the present Bills, but that is a temporary Bill that can be reviewed each year and, if Deputies felt that it was likely to be abused, it certainly would not be passed in the following year. We are dealing now with a permanent Bill, and I do think that we have to be more careful with regard to the provisions that we put into permanent legislation than the sections that might pass into a temporary Bill. We all know that a temporary Bill can be reviewed in 12 months' time. I do think that that section, as it stands, has not sufficient safeguards for Parliament and for the people, and that we should provide that no Government is entitled to make a declaration under this section unless it reserves the power of Parliament or the Dáil to set it aside.
This section is for the purposes of this particular Bill. It is mainly intended to deal with matters of recruitment and many matters which we had to deal with during the last emergency, such as retaining soldiers in service, who, in the ordinary way, would have been entitled to be released from the Army. It gave us the power to continue them in service as long as the emergency existed.
I do not want to keep pressing this. May I refer you to Section 37? I think the Minister doubted my reference——
We will come to Section 37 in due course, without jumping about.
I am not jumping about.
Has not the Government of the day, under some section of some other Act, power to declare a state of emergency?
Under the Constitution.
Yes. They have that power and, whether the power is included in this Bill or not, makes not one iota of difference to the Government of the day in the matter of declaring a state of emergency. It would seem that the power that has been asked for in this Bill is being asked for solely to deal with a military situation.
That does not exactly meet my point. I would not object at all if the same procedure as is contained in the Constitution were provided in this Bill, but this is a shorter cut. The Government has a shorter cut to declare a period of emergency.
Under Section 37, in a period of emergency the Minister may, by regulation, provide for billeting, and so on, and to that extent he may interfere—it may be necessary—with the rights of the people generally. That is one very extreme power that can only arise when a period of emergency is declared. I do not think we should allow legislation to go forward until we examine very carefully the rights of the people, and one of the minimum rights is a right such as is provided in the Constitution that, if the Parliament considers that the Government have no business declaring a state of emergency, the Parliament would have power to reverse the decision.
Deputy O'Higgins's point is that under Section 4 a period of emergency is defined to cover " for the purposes of the Bill," but that under Section 37 it might extend it.
When I put down the amendment I considered the very serious nature of the powers that could be exercised, and while we have had experience of three Governments, none of whom would act in an improper manner in regard to such a vital issue as this, there is always the possibility that some person or group of persons may be the Government for a very short period—even a period of hours—during which they could declare a state of national emergency and could arrest members of the Dáil and the Army would come on active service. It is a very serious matter that when an Order is made by the Government declaring a state of national emergency, the Army becomes on active service.
That is not correct. We operated for approximately six years in a state of emergency, but a state of active service was never declared.
Surely the important point is whether it is possible to declare under this Act a state of emergency which would have wider application than is intended in the Act. It is quite obvious that if a state of emergency is deemed to exist, the powers referred to in the subsequent sections are necessary for any Government or any defence force, but it appears from the section as it stands that the Government could declare a state of emergency, and the definition does not limit it to specific military operations. While it might be reviewed by formal motion in the House, it is, I think, technically possible for a state of emergency to be declared without a resolution of both Houses being passed, if the section is enacted as it stands.
If we are to operate on the basis of being fearful of the future, of being fearful that the elected representatives of the future cannot be trusted, I doubt if we can meet all the requirements that would then arise, and put them into a Bill. We will have to operate as reasonable individuals endeavouring to provide legislation for people who will be as reasonable as we are, and who will carry out the functions of Government as reasonably as any of the Governments to which Deputy Cowan referred. Sub-section (3) says:—
" Whenever an order is made by the Government under sub-section (1) of this section declaring that a state of emergency exists then so long as such order remains in force a period of emergency shall be deemed for the purpose of this Act to exist."
That makes it even more positive. Suppose a strike of the boilermakers union took place. Under this section, the Government could declare a state of emergency. There is no limitation at all of it—it is wide open. The argument that future Governments will be as reasonable as previous Governments is one which we cannot accept. We have to visualise the possibility of a Government being in office for 24 hours. We have to visualise a Government defeated. Between the date of its defeat and the coming together of Parliament you could have the Government, because they are the Government of the day, declaring that a state of emergency existed because they had been defeated. You are giving a statutory power to that body. You may argue that that is unreasonable, but the door is too wide open for temptation to set in, and I should like to close it as much as I can.
I should like to be clear on the position as to whether there is any conflict between the definition of a state of emergency under this Bill and a state of emergency under the Constitution. I agree with the statements of the Minister that the state of emergency declared in past years continued long after the military emergency, but assuming that the eventualities which Deputy Cowan mentioned occurred, it might happen that an emergency would be declared contrary to the views of a majority of the elected representatives.
The thing that worries me is : are we giving a statutory power which is going, in fact, to limit what is the inherent power of the Houses of the Oireachtas? If we are doing that, we are doing something which might be unconstitutional.
It is constitutional enough, if we pass it, but that is why I suggest that we should be slow.
This particular type of section appeared first, I think, in Army legislation at the time of the previous emergency and we are now incorporating into a permanent Army Act a feature in legislation which arose by reason of expediency.
I think I could truthfully say that a very large portion of this Bill will consist of that type of legislation, legislation which has developed through experience. I think it is reasonable to say that most legislation develops out of experience.
I am not saying that by way of criticism. What I am anxious to know is, whether there is some overriding consideration which makes this a necessary feature of an Army Act as distinct from leaving that power of declaration exclusively where it at present lies, that is, in the Houses of the Oireachtas.
One could give a reason for it. One could conceive a situation wherein the Government would like to be prepared, to have its own house in order, without interfering with the citizens by way of emergency. I think that is the purpose of the section—to enable the Government to declare an emergency in the sense that it can put the Army into a state of emergency. That does not mean that you put the whole country in a state of emergency.
It means that they could do so.
It does not, I think.
They can carry out arrests in such circumstances.
Surely the danger in reverse might be far more serious. It might enable all the features that have been adverted to by Deputy Cowan to come to the top. There is less likelihood of a coup d’etat from the Houses of the Oireachtas side than there is from a military side if there is a misuse of the power.
Supposing certain elements did try to carry out a coup d’etat. Would it not then be necessary to have the power ?
With regard to the point that members of the Dáil might be arrested, I do not think there is anything we can do under this legislation which would prevent a Government from going wrong, if that Government wishes to go wrong. We will have to trust any Government which may be in power. If they want to go wrong, no provision with regard to the Houses of Parliament having a certain say in the matter will stop them.
Arising out of what Deputy Colley has said, surely if that situation were to arise, if members of the House were arrested for any purpose and if unwarranted powers were exercised by the military authority or by an improperly constituted Government, surely the fact that the Houses of the Oireachtas had not in the normal way declared a state of emergency would prevent any amnesty or condoning of the offence afterwards. The danger is that you are putting into a statute a power which inherently and intrinsically belongs to the Houses of the Oireachtas as such and whether that is wise or not is worth very serious consideration.
What would happen in this case : if the Dáil is in recess and it is necessary for the Government to act quickly to put the Defence Forces on an emergency basis ?
There is already machinery under which the Government, by methods under its control, could bring the Dáil together in the shortest possible space of time.
How short would that be?
I should imagine the State could do it without any trouble within 12 hours.
We propose to give the Government power to declare a state of emergency, which, in fact, no matter what anybody says, gives them power to do practically anything. It seems extraordinary to say that before the country can change ordinary time to summer time it is necessary for both Houses of the Oireachtas to approve of the simple measure to bring the change into effect, while here the Government, by Order, may, in effect, take over the whole country and do what they like.
That is entirely an exaggeration. Has it been proved that in any circumstances such a thing has ever happened or is ever likely to happen ? On a question of this kind we can only speak hypothetically. We cannot say with certainty that something will happen or that something will not happen. What we are doing is trying as reasonable individuals to provide legislation for people who would as be reasonable as we are. That is all I am suggesting. Also the declaration of an emergency has been referred to as being covered in the Constitution. It is almost a certainty that a clause of this kind would never be utilised until in the first instance the Government had operated under the powers they have in the Constitution itself.
Would not a simple amendment provide that both Houses of the Oireachtas approve it?
Both Houses would have to declare the emergency. You would not want this power in those circumstances.
The Houses would already have given them.
The Oireachtas would already have declared that emergency. The authority would come from the Oirechtas in that case while in this case it would come from the Government. The wording is very positive.
There would not be an opportunity of operating under this Bill if we had not got these powers.
The section reads:
" The Government may, whenever they consider the circumstances are of such a nature as to warrant their so doing, by order under this subsection declare that a state of emergency exists."
The Dáil and Seanad, the Dáil particularly, should declare the state of emergency but I can visualise circumstances under which the Dáil could not meet for the purpose of so doing. The Constitution says—I am only quoting from memory—that in a case of actual invasion the Government may declare the emergency, but unless an actual invasion has taken place then the Dáil must be assembled for the purpose of declaring a state of emergency and then war—one follows the other.
We must test all these sections by the extreme case. The Minister said that no Government is likely to act wrongly in this respect. That is probably a sound view but if we adopted that view universally we would not have any garda force or any army. If the Dáil were dissolved to-morrow the Constitution provides that the Government continue in office until its successor is appointed. Assuming that we have a bad Government, a Government that wants power and had been beaten at the polls, under this section that Government is entitled to declare a state of emergency and is entitled to bring into operation all the military powers under this Bill. That is not a situation which we should legalise because if the Bill is passed they could do it lawfully. We should not by our legislation allow circumstances like that to arise. We could cure that if the Minister would at least agree that any Order made by the Government should be of a limited duration and could be reviewed by either Houses of the Oireachtas. That would be a safeguard.
Mr. Collins
Is there any particular reason why the Minister feels that there is not already sufficient power in the legislation of this country to enable the Army to act under this section if necessary.
No. The Army authorities themselves have gone through this Bill with a fine comb and have examined this section in conjunction with the other section. Naturally, as a result of their former experience, they feel that this power should be contained in the Bill, in order that if a serious crisis arose they would be capable of operating in the shortest possible time.
Mr. Collins
Does that imply that they have difficulties at the moment under the present legal position in doing that ?
I would like to counter these questions by asking another: what can the Government do out of the ordinary as a result of the passing of this Bill. Is there anything exceptional which the Government can do if the section is passed ?
Mr. Collins
Certainly. Taking the extreme case again, if you have a Government in control that wants for certain purposes of its own to defeat the normal business of the Houses of the Oireachtas, under this section that Government could make the Army an instrument for that purpose.
If you are going to have that sort of Government they will not be bothered with the Constitution or with Acts; it will be a Government by revolution. I cannot see any reasons for misgivings regarding this section and I do not think that the Government are getting any power beyond what they have already because power under this section is limited to the purposes of the Bill. This is not new legislation but has been on the stocks for years. Several Ministers dealt with it and the previous Minister had the same provision.
The words " The shortest possible time " has been used by a number of speakers. We should never forget that under present-day conditions, if there were a question of invasion we would get little or no notification beforehand from the likely invader. It is not a question of the Dáil having 12 hours or 24 hours to assemble and make its decision. It does not arise, as far as I can ascertain, in connection with the powers asked under this section. Deputy Corish made a comparison with the Dáil assembling to change over from old time to new time and taking a considerable amount of time, but a real comparison cannot be drawn between that and the powers necessary for a quick emergency when the Government must give powers to the Army to mobilise, to hold on to the men who would be on the point of going out and to bring in reservists. I think that these powers should be in the Bill, because if the Government suddenly got wind that there was quite a likelihood of an invasion—that could be a matter of 20 minutes or an hour—it would be much safer to have the Army in a position to declare an emergency, as far as the Army is concerned, than to have a state of emergency declared in this country as a whole. The emergency might never take place in the long run and there might be no need to upset the general public by taking that step.
I do not at all agree that we should discuss extreme cases like a bad Government. If you base your legislation on that it is a bad outlook for the country generally. If such a Government wish to take control in the country they would find other ways and means of gaining their wishes besides a technicality in this measure.
I put down opposition to the section for the purpose of having it discussed, and undoubtedly it has got very serious discussion in this Committee. One thing that is perfectly clear is that an armed force in any country must be under the most rigid control, and that is Parliamentary control as we understand it, which is somewhat distinct from Government control.
Obviously the army in any country will say: " Give us these powers and we can handle any situation," but wise men always fear because of the examples of history what might then be done. That is the danger. We are not in this section so much concerned with the machinery of the Army where we could say that what the Army recommends is to be accepted as with the rights of citizens and the danger of those rights being invaded. That is why there are very elaborate precautions in the Constitution to protect the rights of citizens. The Constitution envisages the sort of thing mentioned by Deputy McQuillan and other Deputies: the possibility of an invasion, an uprising or an attempt to overcome the Government by force, but nevertheless it was afraid to give the Government very wide powers except in the case of actual invasion. I think that is important. The Government can declare an emergency and that is where I think the section is weak. There should be some limiting words and between this and the Report Stage the Minister should consider inserting some limiting words that will give the protection for which citizens ask in the Constitution.
I mentioned active service and the Minister said that the declaration of a state of emergency does not mean active service. I agree. The Government can declare a state of emergency and call out the whole Reserve—40,000 or 50,000 men. Under Section 87 :
" The Government may, at any time during a period of emergency, by proclamation—
(i) declare that it is expedient that reservists be call out on permanent service."
Forty thousand or 50,000 men can be called out.
The Government could immediately make an Order that the Defence Forces be on active service and then a man could be brought up for a comparatively trivial offence and shot by courtmartial. These are serious interferences with the rights of an individual. This section has had such a fine discussion on a very high level that I would like the Minister to tell the Committee now that he will consider for the next stage whether there are any limiting words that might be put in to preserve the rights for which Deputies ask.
That would be an easy way of ending the discussion. My interest—and it would be the interest of Deputy MacEoin if he were in my position—is to ensure that what Deputy McQuillan refers to will not occur. There are no declarations of war in these days and it is possible that a phase of warfare, once started, would be of such a character that it would not be possible to call the Oireachtas, that Deputies could not arrive at their destination. I have to consider the least possible number of shackles on the Army in dealing with a situation that might be dangerous to the interests of the whole people. We are talking about the interests of the people. The greatest danger would be if, by laxity on the part of the Army, due to these legal shackles preventing them from taking action, the people should lose their freedom where it might have been saved. That is why I am resisting pressure to alter the section. I have to presume that the section was given the most serious consideration by my predecessors and that, if there was any necessity or reason for using the expression which Deputy Cowan suggests I could easily put in, that would have been adverted to also. It would not be very difficult for me to say—and I will say it if the Committee deems it desirable—that I will have the section examined to see if there are any limiting words which would not prevent the Army from taking the action every one of us would be anxious it should take should the necessity arise.
Perhaps the Minister would also undertake to have it examined for constitutional correctness ? Article 28 of the Constitution says that " nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion." I should like the constitutional implications of the section as drafted to be considered on that point.
I agree with the Minister that this has got a good deal of examination. There is value in this Committee in the discussion and the clash of opinion. The Minister and his advisers, having heard the arguments for and against—unless this Committee is a nullity—are bound to be affected by the views expressed. It might be possible to make sub-section (4) read:—" Every Order made under this section shall as soon as practicable be laid before each House of the Oireachtas" or words to that effect. Then a new sub-section could be added, saying that the Order may be annulled within, say, 21 days, without invalidating anything done up to then under it. There is a phraseology for that. That would give the power, while Deputies would have the right to put down a motion to have the Order annulled. It would be a little more specific and would put an obligation on the Government to call Parliament within the 21 days. The Minister might consider it from that angle.
The limitation I had in mind was not that suggested by Deputy MacEoin. I think the words " whenever they consider the circumstances " too wide, and would prefer to see the limitation to a certain set of circumstances—invasion or armed rebellion, or I would be inclined to agree to any reasonable wording, so long as the limitation was there. It is too wide at present.
The case of invasion is covered by the Constitution.
Yes. We could take armed rebellion and a lot of things we could all think of.
Mr. Collins
That is not the limitation I would consider at all. The phrase " whenever they consider the circumstances are of such a nature as to warrant," exercising the reasonable belief that we will have reasonable Governments, seems a reasonable limitation. The limitation I am anxious to have, if possible, is one like Deputy MacEoin's where—a certain thing having been done by the Army and it is possible for the Government to convene the Houses of the Oireachtas again—there should be an opportunity given to Deputies within some period to move approval of that Order or its annulment.
I may be old-fashioned, but I have sufficient faith in my fellowmen to believe that a Government faced with circumstances of the character referred to here, would seek the support of the elected representatives of the country. It would be a desirable support to have. We are arguing on a hypothesis, or something that might never occur in this country, and when I am talking about legislating for reasonable men I have that in the back of my mind. If we were discussing this in the House itself, we might have views of varying character on this. Though I may be old-fashioned, I do not regard views expressed purely on hypothesis as ones that would impress me. If the people's rights were in danger and that could be proved, I would sit up and take notice. By way of ending the discussion, I could say that I would have these suggestions carefully examined from the various points of view put forward here, which have differed considerably even amongst members of similar Parties; but that is as far as I could go.
Mr. Collins
Would the Minister inquire from his advisers whether the addition of such words of limitation as suggested by Deputy MacEoin would in any way weaken the section from the point of view of army action?
It will have to be based entirely on that.
Mr. Collins
I do not feel it does. It might be valuable to a Government to have that time limitation to allow the Houses of the Oireachtas to come in behind the Government at a time when it would be most vital.
There will be an opportunity on the Report Stage.
Question put, and agreed to.
Section 4 agreed to.