Wednesday, 26 May 1971
Dáil Eireann Debate
Mr. Desmond: I wish to continue briefly the debate on section 2, as amended. The sweeping overtones of section 2 as originally drafted at the request of the Government have now been modified some what by the acceptance of amendment No. 9 proposed by Deputy Cooney. The general rejection by the Labour Party of this Bill as a whole forces us to oppose section 2. The concept of forcible entry still remains within section 2. It remains widely, most ambiguously and dangerously as inserted in the Bill. There is great need for this House to be preoccupied with more socially constructive and progressive legislation, but we find the Government still giving top priority to this rather Napoleonic stance of the Minister in relation to this Bill.
Section 2, as amended, could be said correctly to be rather meaningless. It provides a succulent dish for any third-rate lawyer to feed on arising from the question as to what may or may not constitute a bona fide right. Deputy Fitzpatrick and Deputy Cooney would agree with this. The amendment does not obviate the fact that the section creates, in effect, a new criminal offence. In our opinion this section is wholly unnecessary and extreme on the part of the Government, more particularly in the normal processes of civil law. The section is still eminently applicable in some instances. We are more than justified in still opposing vehemently this section. Even with the acceptance by the Minister of amendment No. 9, the section is entirely objectionable in that here again there is written into the law what one might term a reversal of the normal legal procedure in prosecution cases that the onus of proof lies with the prosecution. Under this Bill we see the reversal of the normal process of law. By implication section 2 opens up a new area of general provocative confrontation between members of the public and  the Garda. This has been done deliberately by the Government and this kind of sledge-hammer approach is to be deplored. Accordingly, we oppose section 2.
The Minister accepted amendment No. 9 in the name of Deputy Cooney. The fact that the Minister had to accept that amendment was a clear indication that the Bill was drafted in what one might call vindictive haste and was not understood even by the public servants whose function it is to advise the Minister. I have very rarely criticised public servants in this House but even they have had second thoughts regarding section 2.
It is regrettable that the Bill is being advanced in this House in a rather brazen manner as a supposedly necessary and urgent piece of social legislation. I do not propose to dwell further on section 2 other than to state that it shows the developing Fianna Fáil Party in action. It appears there is now a kind of lawyers/auctioneers lobby within Fianna Fáil and I am sure section 2 meets the wishes of the new auctioneering lobby, including Deputy Dowling. It illustrates the mentality of the party and it is tragic that this Bill is occupying the time of this House when other matters of importance and urgency might be discussed. It is also tragic that we have to bring the area of criminal law in to meet civil situations involving property interests. Section 2 speaks for itself in that regard.
Mr. T.J. Fitzpatrick: (Cavan): On 21st April I dealt fairly comprehensively with one of my objections to the section as it now stands. That objection arises out of the definition of “owner” which the Minister and I discussed at considerable length. Not-withstanding the acceptance of Deputy Cooney's amendment this section is objectionable to me. I know the Minister said on the last occasion that between then and Report Stage he would look into my argument on the amendment which I withdrew at his suggestion which called for deletion of part of the definition of “owner” as “a person having an interest or estate in lands”.
 As I see this section, a person having a remote interest in a house will be able to forcibly enter that house against the will of the occupying tenant. He will not be guilty of an offence under this Bill and the tenant will have no protection under this Bill. The justification for this Bill is the protection of the occupier. The section as drafted does not protect the occupier; in fact, it excludes specifically an offending landlord from the provisions of the section. I stated at considerable length on the last occasion my objections to the section. I objected to it on the grounds that a landlord who might only have a fee farm grant interest in the property and who might never be entitled to possession could forcibly enter the land or building and under the terms of the section he would not be guilty of an offence.
Other people object to this section for different reasons. I agree with Deputy Desmond that this measure was drafted in haste and with a certain amount of indignation. Measures that are drafted in that kind of atmosphere invariably have certain weaknesses. I think an offending landlord should be subject to the terms of this Bill as well as anybody else. It is no answer to say that the tenant has his civil rights against the landlord. The landlord has his civil rights against the tenant also and he should be compelled to rely on those civil rights. If he violates the criminal law, as will be the case when this measure becomes law, he should not be exempt from the provisions of the criminal law.
Minister for Justice (Mr. O'Malley): Deputy Fitzpatrick's objection to the section arises out of the definition of the word “owner” which arises in section 1. For that reason his remarks are more relevant to section 1 than to the section under consideration. We had a full discussion on section 1 on the alleged problems that arise from this definition. I have noted the difficulties and I have told Deputy Fitzpatrick that I shall be examining them further between now and Report Stage. It is worth making the point that Deputy Fitzpatrick is complaining that under the section and under the definitions a criminal offence would not be  committed. Many people opposite are complaining that criminal offences would be committed. I find it hard to see how they can oppose the section on two diametrically opposite grounds. Therefore, the point made by Deputy Fitzpatrick in regard to section 1 can best be considered again on Report Stage when we shall consider again the definition of “owner” to see whether the point made by the Deputy has validity and, if so, whether it can be rectified.
Coming to Deputy Desmond and his valued contribution to this section as to the previous one, one might say that certain difficulty exists in trying to deal with what the Deputy has to say because he has not the faintest idea of what either the Bill or the definition is about, but that does not prevent him from pontificating at great length in his usual unctuous fashion.
Mr. O'Malley: Civil remedies are designed to deal with a situation where two persons are in dispute with regard to the ownership or the entitlement to occupation of a particular dwelling. It is presupposed that both parties to such a dispute are normal law abiding citizens and are prepared to abide by the decision of the court and the law of the land. It is presupposed also that the persons are interested in the long term use or occupation of the property and that they will still be interested in retaining possession of it or of ejecting the other person from possession after one, two or three months when a court will have given a decision on a civil action.
 The sort of situation that we are trying to deal with here—this is very well known to everybody including those who make the suggestion about civil remedies—is not the kind of situation where two persons are in dispute about the ownership or the occupation of property. What we are trying to deal with is the sort of situation, such as that witnessed within the past week, where a group of people enter premises by force and remain there by force although they have not the faintest colour of right to be there nor did they claim the faintest colour of right to be there. They did not propose to stay there indefinitely. They simply propose to stay there for a matter of hours or, at most, for a day or two. This pattern has been repeated many times in this country during the past couple of years and I have no doubt that it will be repeated again seeing that it was repeated as recently as last week.
To talk, therefore, of the use of civil remedies against such persons who have nothing but utter contempt for the law and who do not make any claim to any shape or form of right to the property is completely illusory. People who believe that anything could be done in the way of providing civil remedies to overcome the sort of situation that existed in Limerick and in Cork last week, and that existed many times in Dublin prior to that, are codding themselves and codding members of the public by saying that something could be done on these lines. Quite clearly nothing can be done by way of civil remedy if somebody's house or office is broken into and occupied and continues to be occupied forcibly by organised groups who refuse to leave on request. To say that civil remedies can be resorted to to deal with such a situation is simply to treat the owner or the lawful occupier with contempt. A man is entitled to the possession of his property and he is entitled to have that possession restored to him speedily from blatantly unlawful occupiers. The law needs to be changed and that is the sort of change that we are endeavouring to make here.
Mr. Desmond: From listening to the Minister one would imagine that  forcible entry and forcible occupation were not already crimes. There are more than adequate statutory powers available to the Garda Síochána to deal with the instances mentioned by the Minister and, therefore, this legislation is irrelevant.
Mr. P.J. Burke: We must deal with this position in a realistic manner. There is no pressure group in the Fianna Fáil organisation such as that referred to by Deputy Desmond. I have been in this House for 27 years and during that time I have never spoken personally about anybody and I have no intention of——
Mr. P.J. Burke: There is a clown in every circus. I wish he would allow me to address the House. If a man goes on holidays or for a walk in the evening and he leaves his house which he bought through an SDA loan or in some other way, that house can be entered by a gang of hooligans and they can stay in that house. They think they  can take over any property. Deputy Desmond wants that type of stuff.
Mr. P.J. Burke: He is a Member of the Dáil and I should like the people of Dún Laoghaire-Rathdown to know what he stands for. He stands for forcible entry. He stands for any mob going into my house while I am on holidays or have gone for a walk and they can tell me when I come back that I cannot go in. That Deputy represents a constituency which I had the honour of standing for.
Mr. P.J. Burke: That is what he stands for. He stands for a mob to take over the city. We cannot hide our heads in the sand. Deputy Desmond makes personal charges against people. My dear friends, a Cheann Comhairle——
Mr. P.J. Burke: I am trying to deal with the problem coolly and calmly. Let Deputy Desmond tell the people of Dún Laoghaire that he stands for mobs taking over the city. He stands for mobs taking over homes while the owners are on holidays. When I address the people of Dún Laoghaire in the near future I will tell them that.
Mr. P.J. Burke: I am talking about people who have no regard for us or for the conscience of Parliament. Deputy Desmond would pull down the ideals for which we stand. He accuses a few backbenchers of Fianna Fáil.  I stand for this section going through because I believe it to be in the interests of the country. I do not see why any mob should be allowed to take away the rights of the people. In Dublin we have more than 200 families who have gone in forcibly.
Mr. T.J. Fitzpatrick: (Cavan): I do not think there is any necessity  at this hour of the morning for heat or sarcasm. Deputy Burke says he supports this section and I feel obliged to spell out in as few words as I can exactly what he is supporting. The only justification for this Bill is the protection of the occupier of property. As far as the Bill can be justified it must be justified on those grounds and those grounds only. This Bill, this section which Deputy Burke supports, protects the absolute owner of property against all and sundry. It protects the absolute owner-occupier but that is all it does. It does not protect the tenant of property who is entitled to occupation against all and sundry. It does not protect him against the landlord. A landlord who has no more right to occupy the property than a complete stranger will be immune from the provisions of section 2.
Deputy Burke is protecting the big man, the absolute owner, but not the small man, as the Bill stands at present. I might come back to the Hume Street houses. This section does not protect the Hume Street houses from the mob, as Deputy Burke describes them, if that mob were given authority by a person having a very remote interest but who is not entitled to occupancy. A fee farm grant order could give authority to all the teddy boys in Dublin, and all the teddy girls, if there are any, to enter those houses as the Bill now stands and they could snap their fingers at the Minister for Justice, the Garda Síochána, Deputy Burke and everybody else. That is my cohesive argument on this measure. It is meaningless. It gives no protection to people who need protection. It would have been a much better——
Mr. T.J. Fitzpatrick: (Cavan): I agree it is a technical Bill and that it would be difficult to conduct an argument on it with Deputy Dowling. It does not protect the tenant from the bully boy landlords, and there are such. It gives them immunity from this section of the Bill and that is what I am against. My views on this measure are quite clear and I am not going to be drawn into any smart chat by  Deputy Dowling. It would be much better if the Minister withdrew the Bill and instructed his officials to redraft it in a cool atmosphere away from the events which led to it, just as he is apparently going to do with the Criminal Justice Bill. These are my views; they are perfectly clear to me at any rate and I think they are clear to the Minister.
Mr. Pattison: From Deputy Burke's contribution it is quite obvious that the backbench Members of the Fianna Fáil Party have been led to believe that this Bill is necessary to deal with local authority squatting but there are provisions in the Housing Act, as Deputy Cooney mentioned, to deal with that problem. They should be made aware  of the provisions of subsection (7), section 62 of the Housing Act, 1966, which was inserted by section 13 (2) of the Housing Act, 1970. The problem of local authority squatting referred to by Deputy Burke is adequately taken care of in the 1966 Act in conjunction with the 1970 Act. If members of the Fianna Fáil Party were given that as a reason for supporting this Bill I am afraid they have been led astray. It is obvious that they must have been given that reason because it was the strongest reason put forward by Deputy Burke and other members of the Fianna Fáil Party in support of this section.
Brady, Philip A.
Burke, Patrick J.
Connolly, Gerard C.
de Valera, Vivion.
Fitzpatrick, Tom (Dublin Central).
Healy, Augustine A.
Hillery, Patrick J.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Clinton, Mark A.
Cluskey, Frank. Fitzpatrick, Tom(Cavan).
Harte, Patrick D.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Murphy, Michael P.
|Cooney, Patrick M.
Dockrell, Henry P.
Enright, Thomas W.
Esmonde, Sir Anthony C.
Finn, Martin. O'Donovan, John.
O'Higgins, Thomas F.
O'Sullivan, John L.
Mr. Cooney: I move amendment No. 10:
In page 3, subsection (1), line 11, after “vehicle” to insert “or has entered thereon in pursuance of a bona fide claim of right”.
An Ceann Comhairle: Amendment No. 10 has been discussed with amendment No. 9.
Mr. O'Malley: There was some slight modification of that agreed to the last day and I have accepted that modification. It is at column 355 of volume 253.
Mr. Cooney: I understood that the reference was to the preceding section. Is that right?
Mr. O'Malley: That is correct.
An Ceann Comhairle: It was agreed to amend amendment No. 10 to read as follows:
In page 3, subsection (1), line 11, after “vehicle” to insert “or so remains thereon in pursuance of a bona fide claim of right”.
Amendment, as amended, agreed to.
Mr. Cooney: I move amendment No. 11:
In page 3 to delete subsection (2).
As drafted the subsection which it is sought to delete will defy enforcement in the courts as a matter of practice. Subsection (2) reads:
In this section “forcible occupation of land or a vehicle” includes—
(a) the act of locking, obstructing or barring any window, door or other entry to or means of exit from land or a vehicle with a view to preventing or resisting a lawful attempt to enter the land or vehicle,
(b) the act of erecting a physical obstacle to an entry to or means of exit from land or a vehicle with a view to preventing or resisting a lawful attempt to enter the land or vehicle,
(c) the act of physically resisting a lawful attempt at ejection from land or a vehicle.
It will be impossible in practice to apply such definitions. The matter is already adequately covered by the definition “forcibly” in the definition section, section 1. If one can envisage a situation where there are people in a premises who have entered lawfully and, for some reason, the nature of their occupation changing from being lawful to unlawful, this section apparently is designed to ensure that their subsequent occupation is a criminal offence. To copper fasten the commission of the offence the section endeavours to spell out what forcible occupation can mean. It says that “forcible” occupation... includes”, and the three things that it can include are presumably non-exclusive, and it will be open to the courts to interpret forcible occupation in accordance with the meaning given to “forcible” in section 1.
However, in attempting to spell out for the courts what could be “forcible” so as to constitute an offence  under section 3, the section is asking the courts to do an impossible job. For example, “the act of locking, obstructing or barring any window” can be forcible occupation so as to constitute an offence. One can imagine a ludicrous situation in a district court as to whether a door was locked or whether it was locked deliberately with the intention to exclude a person seeking to enter, or whether it was locked accidentally. Is it locked when it is on the ordinary fastening? Does the key have to be turned? There is endless room for ridiculous speculation as to what constitutes “the act of locking” or the other conditions, “obstructing or barring any window”. Any law which can leave itself open to ridiculous interpretations is bad law and it will bring the whole thing into disrepute.
Furthermore, it applies only if “the act of locking, obstructing or barring any window” is done with a view to “preventing or resisting a lawful attempt to enter the land or vehicle.” We are in a difficulty there again if we consider a situation where there are persons in occupation following a change of the nature of the original occupation; some other person alleges they are there wrongly, that they are there committing an offence under this section, and he invokes the aid of the Garda to enter on the premises to remove these people. There must then arise on the premises and in the heat of the moment a disputation between the Garda and the occupants or between the owner and the occupants or the alleged owner and the occupants; the occupants may in fact be owners also within the wide terms of the definition of “owner” contained in section 1. There could arise a disputation as to whether those persons are there lawfully or not. If eventually the Garda decided to prosecute there would be a long argument in the district court as to whether the attempt to enter was lawful or not on the grounds the person attempting to enter had no title to enter, and therefore if he had no title to enter his entry could not be lawful and there would be no offence “resisting an unlawful attempt to enter”.
Again if the Garda come along and  the person in possession says: “I have a bona fide claim of right to be here” what do the Garda say to that? Do they decide there and then that he has or that he has not? They cannot be expected to make up their minds on a question of title. They retreat from the position and the occupier is left in possession. The person who alleges to be the true owner is outside again in dispute with the person inside as to whether there is a bona fide claim of right, and there is an altogether ridiculous situation. At this stage, if the criminal law will not intervene, a person who alleges that he is the true owner must have recourse to the civil courts and we are back to square one as regards the principle of this entire Bill, which is so enmeshed with property rights that it is impossible to define criminal acts with the precision with which they must be defined and should be defined so that every citizen will know his exact position in relation to the criminal law.
This subsection highlights the difficulties which are in the Minister's way in this whole Bill. It would be quite impossible to provide pre-conditions which have been broken and will mean the commission of an offence, because they have to be so hedged around with protection for bona fide situations that they become meaningless. That is what has happened in this section.
One can imagine a situation where three students are tenants in a flat, and may be one of them has signed the tenancy agreement. That student departs and there are two left. The landlord decides to eject them and they decide not to move. The landlord calls in the Garda. Are the Garda to accept the landlord's statement that these men are trespassers or is he to accept their statement that they are there under a bona fide claim of right under a tenancy agreement signed by their colleague as their agent? Such a situation could not be finalised in the criminal courts. It would have to be the subject of an action on title and would have to be determined under the civil law.
Even assuming that there was no claim by the occupant, I fail to see  how the Garda could prove forcible occupation as defined here, merely by saying that they were not able to get into the house. That, to my mind, would not prove that the persons in the house were the cause of keeping the Garda out. If a particular person is to be charged with a particular offence the evidence must show that that person committed the specific act which constitutes the offence.
Again in the classic case which so worries Deputies on the other side of three or four people being in a house in a situation with which the gardaí have to deal, I cannot see how they can go any way towards proving an offence under this section. If the section cannot be enforced or the section is likely to lead to confusion, or if the section is likely to bring the gardaí into disrepute and make their efforts to enforce the law ineffective, I think it should be withdrawn.
There is no doubt that the effect of this Bill will be that every time there is a prosecution in the district court for an offence under this measure in effect a title action will have to be fought out unless the Minister is prepared to accept my amendment later on. Once the Minister allows in the amendment dealing with possession in pursuance of a bona fide claim of right, and he cannot exclude it because to exclude it could do harm the other way, there is the possibility, there is the probability, in fact, there is the certainty that that defence will be raised at all times and on all occasions. Once it is raised the position of the district court is that it is then determining a question of title. As the Minister is well aware, title has always been specifically ousted from the jurisdiction of the district court. It has long been held that it is not a competent court to determine questions of title. This measure forces the district court into such determination to see if, in fact, occupation was under a bona fide claim of right. It is even worse because it could lead to the situation in which on the battlefield, at the scene of the confrontation between the occupant and the alleged owner, the gardaí might be asked to, or would have to if they were to take action, arbitrate  on a question of title. Naturally, they would not accept that job. They would have to withdraw and once they withdrew the whole point of the thing would be nullified and the alleged owner and the occupants would then have to confront each other in a civil court. That is the way this entire question should be left.
Mr. O'Malley: I cannot accept this amendment. Subsection (2) of this section, without purporting to be exhaustive, specifies a number of ways in which there may be forcible occupation of property within the meaning of the section. The particular acts listed in the subsection represent some of the methods by which the illegal occupation of buildings and other property has, in fact, been maintained by the kind of people at whom the Bill is aimed. As far as I am concerned, therefore, the subsection is a necessary and important part of section 3 and should remain. I regard the provision as a vital one both from the point of view of obviating difficulties of interpretation when proceedings come before the courts and of spelling out for the benefit of those who engage in the practice of occupying other people's property exactly what types of activity are prohibited by the section.
I would invite the attention of the House to the fact that under the subsection the act of blocking, obstructing or barring doors or windows, the act of erecting obstacles to entrances and exits and the act of resisting attempts at ejection would constitute forcible occupation where, but only where, these acts are calculated to prevent or resist lawful attempts at entry or ejection. This is another safeguard written into the Bill to ensure that its provisions will not apply to occupation by ordinary trespassers.
Mr. Cooney: I take the Minister's point that these are written in in the case where there is a resistance of lawful attempt to enter the land or vehicle but the person in may allege lawful occupancy and the Minister has not dealt with the difficulty that will arise on the battlefield. The person in alleges that he is lawfully there and the person  out alleges that he is lawfully entitled to enter. Are the gardaí to determine a question of title between the two parties?
Mr. O'Malley: Of course, this sort of problem arises in other ways. From time to time the gardaí, for example, have to decide, when they come upon somebody with property who claims that it is his, whether or not it is his. They make up their own minds in so far as they decide to bring or not to bring a charge but that is not a final or definitive decision. The final or definitive decision is by the court. If someone is in possession of objects found on him and the gardaí have good reason to suspect that they are stolen the gardaí make up their own minds as to whether they will charge him or not. Similarly here.
Deputy Cooney seems to think that everybody who occupies premises screams that they are the fee simple owner or something and that they are entitled to ownership or entitled to possession. They do not. They never do and I do not see from the nature of the thing that they ever will because we are not dealing with individual cases of dispute as between one man and another. We are dealing, let us be frank about it, with an organised attempt by subversive groups in this country acting frequently under the name or guise of front organisations. We are dealing with organised attempts by these subversive groups to take over the property of other people—very often it is public property—and to exclude from that property the persons lawfully entitled. If one of these gangs of subversives turns up at a flat in Ballymun or somewhere else that is quite clearly and quite patently the property of Dublin Corporation and they exclude the lawful tenant from it and an official of Dublin Corporation comes along and says: “Those people are not lawfully there,” the gardaí will not be——
Mr. Cooney: That does not come under this Bill.
Mr. O'Malley: ——in any great difficulty in knowing that they are not  lawfully there and that they have no right to be there. Not alone have they no claim of right but they have no shadow or colour of right to be there. Similarly, with the Labour Party's friends who occupied the British Rail offices in Cork and Limerick last week.
Mr. Desmond: On a point of order. I think it ill becomes a Minister for Justice of this State, and I want your ruling, Sir, to start interfering in this kind of——
Mr. O'Malley: It is grand when you indulge in it but if you get a taste of your own medicine you cannot take it.
Mr. P.J. Burke: It is all right for Deputy Desmond to insult other people. He has rights all his own.
Mr. O'Malley: Deputy Desmond can say what he likes to me in this House but I have no rights.
Mr. Dowling: Barry Goldwater.
Mr. Desmond: On a point of order, if the Minister is finished I would ask the Chair to urge him not to make political innuendoes against Deputies of this House which are quite unsustainable.
An Leas-Cheann Comhairle: That is not a point of order. The Minister.
Mr. P.J. Burke: Why does the Deputy not practise what he preaches?
Mr. Desmond: I represent no property interests, as you do. I am not an autioneer.
Mr. O'Malley: As I was saying before Deputy Desmond unsuccessfully tried to interrupt me and prevent my saying it, those people who occupied the British Rail offices in the cities of Cork and Limerick last week and who are supported, succoured and helped in their activities by certain members of the Labour Party——
Mr. P.J. Burke: By Barry Desmond.
Mr. O'Malley: ——did not claim any title to the British Rail offices. They did not say that they had a claim  of right of any description that exists at law. They did not even suggest for one moment that they had the faintest shadow or colour of right to be there. They accepted implicitly and, indeed, I am sure explicitly if it was put to them that they had not the faintest right on God's earth to be there but that they were doing it and doing it deliberately as part of a policy by this subversive organisation which is succoured and helped by certain members of the Labour Party.
Mr. Desmond: The Minister is grossly misrepresenting the Labour Party.
Mr. O'Malley: They insisted on doing it. Are the gardaí supposed to be in some doubt about that sort of situation? They are not in any doubt whatever about it. They know perfectly well, as every citizen of the country knows and as the people themselves know, that they have no shadow or colour of right to be there. I think, Sir, with all due respect to Deputy Cooney that the sort of situation he envisages will not arise at all in the circumstances against which this Bill is directed. What he has in mind is a purely private dispute between two law-abiding citizens.
Mr. Cooney: The way the Bill is drafted it cannot avoid interfering in disputes between two law-abiding citizens because that is the way the Bill exists. The Minister made three points. In the first he sought to draw an analogy between the situation in which gardaí would arrive and find a confrontation between two persons and a situation where a garda would arrive and have a confrontation with somebody in possession of movable goods about whose ownership there would be doubt. His answer was that the gardaí legally have to decide on questions analogous to that. The analogy is not true because in the first situation which is envisaged there are two private citizens in confrontation with each other. In the other situation it is the individual garda who is in confrontation with a citizen in possession of movable goods in suspicious circumstances. In the first situation the parties have resort to a civil solution.
 The Minister's second point was that it would appear I had alleged that the fee simple interest is the one that would be affected. I gave the example of students in a flat being sought to be ejected where the agreement had been signed possibly by one of three who might have left, leaving two companions there. That is far from the question of fee simple interest being outraged. It is a situation which is common enough. The Minister's third argument was against Deputy Desmond who had not even spoken on the section. In it the Minister made emotive references to the actions of subversives in Cork and Limerick. Nobody condones actions of that nature.
Mr. O'Malley: On the contrary, quite a number do in this House.
Mr. Desmond: The Minister cannot control his temper.
Mr. Cooney: It is not good to point to a particular action by a particular group to justify a piece of legislation which can have a blanket effect with ramifications throughout the entire legal system. It is bad to try to justify this type of legislation by pointing to the actions of subversives.
Mr. P.J. Burke: I have great regard for the wisdom of the last Deputy. I know he is an honourable man, but surely the cases cited by the Deputy have not got anything to do with this. We are dealing with the problem of where a mob will forcibly enter a house. That is all the Bill is for. It is not to deal with ordinary civil cases that will have to be decided by law. This section deals with problems that will arise when a mob will make forcible entry to a house without leave or licence. We can talk as long as we like but we will not get any further.
Mr. Pattison: This section is using a sledge hammer to crack a nut and in the process many people will be adversely affected. The Minister spoke about the kind of people at whom the Bill is aimed but, unfortunately, there is no distinction in the section between the many types of squatting that can occur. All types of squatting are defined in the same way. The Minister's  weakness is shown up by the examples he quoted. When one has to go to extreme examples of squatting to justify the Bill it shows the weakness behind the whole Bill.
It is well to bear in mind that there are circumstances in which squatting is not alone morally right but in which it is demanded by the moral law. Therefore, we must realise that in certain circumstances squatting is not alone essential but the moral law demands it. We can take the case of a married man with a large family and of an empty dwelling owned by a man with plenty of property and plenty of accommodation to take care of himself. The poor man has nowhere to go. It would be right in those circumstances for that man to provide his family with shelter until such time as alternative accommodation became available. In such circumstances he would not be depriving the owner of anything. Yet this section groups that family with the extreme cases the Minister mentioned. I am afraid we must oppose this section on the grounds that it makes no distinction between the various forms of squatting.
Mr. Dowling: The section is necessary and desirable. On the points made by Deputy Cooney, it must be remembered that we have in this city groups of bully boys, all kinds of thugs, and we have members of the Labour Party with vested interests in squatting and disruption. They are now defending the right of the thugs and the bully boys. In this city not so long ago a group of people broke into a house during the week and when a corpse was moved out they remained in occupation. Not alone that, but they sold some of the belongings. In another case a woman went to hospital and when she came out not alone was her house occupied but her furniture had been thrown out. A blind man was allocated a flat and when he came to occupy it found it already occupied.
Mr. Desmond: The Housing Act was specifically brought in to deal with that.
Mr. Dowling: If Deputy Desmond wants to protect that type of individual  who would deprive a blind man of his flat and a sick woman of her house and her furniture he is welcome to do so. He has made his point that he is in favour of such individuals. If he wants to keep protecting those people that is all right. He has clearly made his point that he is in favour of this type of individual and that this is the Labour Party policy. That is fair enough. We know the Labour Party policy in relation to the protection of those front organisations and those particular groups who have carried out this type of practice. We are further aware that those people have been advised to squat by members of the Labour Party in order to cause disruption. Members of the Labour Party have participated in squatting.
Mr. Desmond: Absolute rubbish.
Mr. Dowling: Deputy Desmond's friends are among those people and he wants to protect them. Deputy Desmond can make the point in protection of his friends, the squatters, and those front groups because they are well known.
Dr. O'Donovan: What about members of the Fianna Fáil Party who have advocated murder?
Mr. Dowling: A few moments ago we heard this part-time journalist speak about other people having a vested interest. He has a vested interest because he is a part-time journalist. He is probably now a member of the NUJ. I see him writing for a Sunday paper now. If he is not a member of the NUJ then he is a scab journalist. He can have it one way or the other. He is the type of individual who criticises responsible backbenchers of this party. The Deputy is either a scab journalist or a member of the NUJ. He is writing for the papers now trying to do a man out of a job.
Mr. Desmond: I am a member of the Irish Transport and General Workers' Union.
Mr. Dowling: We know the Deputy's type. He continues to protect the front organisation, the thugs and the bully  boys. He has done this successfully up to now in certain places and now in the House he is again endeavouring to protect them. He is a bit of a squatter now in the EEC. His articles displeased a lot of the members of his own organisation. Apart from that, we have seen the consistent effort of Deputy Desmond, in particular, in regard to those squatters. I wonder what would happen if we had the same type of situation in Dún Laoghaire/Rathdown? Would he then start to oppose it or is it all right for the squatters and those front organisations to operate away from the constituency he represents? It would appear so because he has never criticised them. He has always supported them and there is no record in this House or elsewhere that he has any opposition to this particular type of occupation. This is the type of occupation that horrifies responsible people whom we must protect.
Mr. Cooney: On a point of order, what the Deputy is saying has nothing whatever to do with section 3 of the Bill we are discussing.
Mr. Desmond: Gurrier irrelevancies.
Mr. Dowling: I am concerned about section 3 and the alteration to this particular section. This section deals with the offence of remaining in forcible occupation of land or a vehicle. This section in its entirety without any alteration is necessary and desirable. We should try to strengthen it to meet the situation where we have people squatting, remaining in occupation and depriving people who are legitimately entitled to accommodation on the waiting list of the Dublin Corporation.
Mr. Cooney: On a point of order, what the Deputy is saying now deals with another measure which is already law — the Housing Act, 1970.
Mr. Dowling: This section deals with remaining in forcible occupation. I am not concerned with the other Acts. I am concerned with this particular section of this Bill, the remaining in forcible occupation of local authority  houses just the same as other houses. I am concerned with the responsible people on the waiting list of the local authorities who are deprived of houses by the bully boys who have been sent in there in some instances by some members of the Labour Party. This is regrettable and is all the more so if the Labour Party continue to support the type of thugs and bully boys who have been carrying out that particular tactic in this city. We stand for the protection of responsible people whether they are on the waiting lists or not.
An Ceann Comhairle: Would the Deputy deal with the matter of forcible occupation?
Mr. Desmond: Hear, hear. That is all rubbish.
Mr. Dowling: It is not rubbish. I have fairly well covered the situation in relation to this section. I hear the hyenas laughing again. I had a good laugh earlier on at some of the contributions by Deputy Desmond. The papers stated that the Labour Party would oppose this tooth and nail. This meant they were in favour of this particular type of occupation and that they would support the people who did it. They want no legislation introduced that will in any way interfere with this completely irresponsible group who have been operating here for so long and causing so much misery to responsible sections of the community.
Mr. Desmond: When the Minister for Justice has to depend on the contribution of Deputy Dowling in support of this Bill, then we see the embarrassment of the Fianna Fáil Party. The only point of substance raised by the Deputy was in relation to local authority squatting. I would strongly recommend to him that he should take a short walk to the Library and consult the 1970 Housing Act, which amended the 1966 Housing Act and he will see the specific points raised by him are dealt with there and that local authority squatting is, indeed, covered effectively and competently by that Act. It is entirely irrelevant in relation to section 3 of this Bill that he should rely on the kind of statements  he has made here which are of no real significance apart from their general gurrier connotations.
The first principle of any section of any Bill is that it should not be so framed as to render it liable to be brought into general contempt, general confusion and general disrepute. Subsection (2) of section 3 of this Bill defines forcible entry, forcible occupation of land by listing ad nauseam varieties of forcible entries, varieties of action such as the act of locking whether accidental, deliberate or otherwise, obstruction and barring of windows, doors. The roof is not mentioned and I think the Minister might hurry up and make sure that is done because some fellow might take a few slates off and get in and then you would have a row in court to know whether or not that was a method of entry or exit.
Dr. O'Connell: He has included that in “other entry”.
Mr. P.J. Burke: The Deputy is showing them how they will be able to get in.
Mr. Desmond: I will avail of the auctioneering ability of Deputy Burke to advise me on property matters in due course.
Mr. O'Malley: The Deputy was much better the last day when he was on about the husbands and wives and showed his deep understanding of the Bill. Let him go back to that again.
Mr. Desmond: The Minister obviously has had my obsession with such matters locked in his mind. The definitions are an extreme effort to dispel the confusion within this Bill. I merely have a layman's knowledge of the law.
Mr. P.J. Burke: I thought the Deputy knew everything.
Mr. Desmond: There is no section in any British legislation or in any legislation in Northern Ireland which goes to the extremity of section 3 of this Bill. The Minister can regard himself as being in a unique drafting position, a position from which he would  wish to extricate himself as quickly as possible.
The Minister made a reference which was entirely irrelevant but to which it is relevant to reply. He said section 3 was aimed at “the kind of people at whom this Bill is aimed”. Again he went on record as saying “the kind of people at whom this Bill is aimed”. He said that the Bill was for the benefit of those who engaged in such practices and he went on to elaborate on two specific instances, the occupation of the British Rail offices and the occupation of flats at Ballymun. The Minister is perfectly well aware that it is within the competence of the Garda Síochána, under his vigilant eye in Limerick, to deal with this kind of occupation which is undemocratic, illegal and which cannot be accepted as a furtherance of the democratic processes.
Mr. O'Malley: That is precisely what this Bill is trying to do and why is the Deputy opposing it?
Mr. Desmond: What worries other Deputies and myself is that the Minister keeps on speaking about subversive groups, gangs of subversive groups, takeovers, front organisations, organised attempts by subversive groups and so on. So frequently has the Minister made these references that my imagination is beginning to boggle. I almost imagine that he might be sending for a few Scottish Regiments at this point in time. The Minister should be specific and he should name the groups and their leaders. He has made vague and general innuendoes about a completely disreputable character trying to associate the Labour Party at large with such groups. That again can be seen for what it is, the classical resort to the smear when you have nothing else to argue about. As such one must simply disregard it. I hold no brief whatever for any group that illegally take over public or private buildings or private property.
Mr. P.J. Burke: Then why does the Deputy not support the section?
Mr. Desmond: I regard the section as a grave intrusion on the right of all citizens, as a dangerous——
Mr. O'Malley: Do all citizens want to occupy British Rail offices?
Mr. P.J. Burke: The Deputy is a real Pontius Pilate.
An Leas-Cheann Comhairle: Deputy Desmond.
Mr. Desmond: Deputy Burke dislikes being exposed as an insurance broker, auctioneer——
An Leas-Cheann Comhairle: The occupations of Deputies should not be referred to.
Mr. P.J. Burke: I will have a few other jobs too but they are honourable. I do not carry on any disreputable practices as Deputy Barry Desmond does.
Dr. O'Donovan: I do not think it is in order, Sir, for one Deputy to accuse another Deputy of carrying on dishonourable occupations.
An Leas-Cheann Comhairle: The Chair has already pointed out that occupations of Deputies should not be referred to.
Dr. O'Donovan: But it is not in order to accuse a Deputy of having a dishonourable occupation. Auctioneering and insurance broking are honourable occupations.
Mr. Desmond: Deputy Cooney appropriately drew attention to the valid distinction between the occupation of land or a vehicle and questioning by members of the Garda Síochána in regard to movable goods. The Minister made a very feeble case in dealing with that. The Minister indicated that reports and charges by gardaí are necessarily of a subjective nature but his resort to that argument was feeble. He is asking gardaí to arbitrate on the spot. In the case of reports they will have to report that an individual locked, or an individual obstructed, or an individual barred a window, and so on. Such is the onus placed on members of the Garda Síochána under this  section that I will pity them when they will go to court and will be subjected to cross-examination, particularly when an offence will inevitably arise in relation to questions of title or of leases. All this will inevitably lead to the embarrassment of the Garda Síochána.
The section is unnecessary and I support Deputy Cooney and Deputy FitzGerald. It is a good illustration of the Minister's attitude that he will not even accept the amendment that the words “has entered thereon in pursuit of a bona fide claim of right” be inserted. Even that elementary democratic provision is thrown out and I think it is indicative of his whole attitude.
Mr. O'Malley: The last sentence of Deputy Desmond's learned contribution on this section is indicative and much the same as all his earlier contributions on this and other sections and of course it is 100 per cent wrong. You, Sir, will be able to point out to the Deputy that I have accepted the amendment which he so delightfully accuses me, in such disparaging terms, of having thrown out. It is typical of the depth of ignorance from which he speaks with regard to the Bill.
Mr. Desmond: I was referring to the section as a whole.
Mr. O'Malley: The Deputy referred to the amendment “or has entered thereon in pursuance of a bona fide claim of right”. I heard the Deputy say it within the last 30 seconds.
Mr. Desmond: The Minister is clutching at straws. I dealt with the section as a whole and in relation to amendments Nos. 10 and 11 and it was in that context that I specifically referred to the attitude of the Minister.
Mr. O'Malley: The Deputy accused me of refusing to accept amendment No. 10.
Mr. Desmond: The Minister must be very hard up for an argument.
Dr. O'Donovan: I am surprised that the Fianna Fáil Party should be so  restive over relatively inoffensive comments about their behaviour. This Bill and particularly this kind of section is pure Fascism and nothing else. My old friend Deputy Burke, who apparently is upset over the particular commission he has been given this morning, referred to the mob. The fact is that most of the squatting has taken place in this city and the number of squatters has declined enormously. If the Fianna Fáil Party had looked after the housing of the people between 1958 and 1963, if they had built any houses, this problem would not have blown up at all.
Mr. P.J. Burke: That was when you left office and there was not a penny left to buy a bag of cement.
Dr. O'Donovan: We built thousands of houses. The greatest number of houses ever built were built in 1957 in this city and I challenge the Deputy on that. At long last you have got back to it when houses are costing three or four times as much and when you are paying fabulous prices for land to speculators, most of them your own friends. We can talk about this outside the House. I bet that most of the people selling land at £10,000 an acre are members of the Fianna Fáil Party.
An Leas-Cheann Comhairle: Section 3, subsection (2)— the amendment.
Dr. O'Donovan: We all know the circumstances.
Mr. P.J. Burke: Behold the puritans.
Mr. Desmond: Behold the auctioneers. Deputy Crowley is an auctioneer.
An Leas-Cheann Comhairle: The Chair has already said that there should be no references to the occupations of people outside this House.
Dr. O'Donovan: We heard about the objective moral law recently, although it is a doubtful concept. There is not the slightest doubt that, if there is such a thing as the objective moral law, Deputy Pattison is right. Any man who has a family and who brings them into  an empty house is justified in accordance with the objective moral law. Such a man is described as “the mob” by Deputy Burke. There was talk of defending the rights of the bully boys.
Mr. P.J. Burke: Why does the Deputy not make himself clear? Why does he not make it clear that he does not want any law or order in this country?
Dr. O'Donovan: This is a matter of the elementary law of the country. The whole matter has been covered by the ordinary common law.
Mr. P.J. Burke: Make yourself clear.
Dr. O'Donovan: This is covered by the common law. You are registering yourselves as a lot of thugs and people who are bully boys.
Mr. O'Malley: If this matter is in common law the Deputy cannot have any objection to it.
Dr. O'Donovan: I object to the mentality which it discloses.
Mr. O'Malley: The Deputy agrees with the Fascist mentality of those who occupied the British Rail offices at Limerick and Cork.
Dr. O'Donovan: That happened long after this Bill was introduced.
Mr. O'Malley: Does the Deputy approve of that kind of conduct?
Dr. O'Donovan: On this side of the House we do not have to approve or disapprove of anything. Our duty is to oppose the Government. We do not have to make any suggestions. A former member of the Fianna Fáil Party said that it is not the business of the Opposition to make suggestions to the Government. It was mentioned that some of a dead man's belongings were grabbed by somebody. If the man was dead he would not miss them.
Mr. O'Malley: That is typical of the attitude of the Labour Party. The friends and supporters of the Labour Party would whip the belongings of a corpse.
Dr. O'Donovan: I spoke the truth.
Mr. Tunney: It is an extraordinary philosophy.
Dr. O'Donovan: It is a better philosophy than that enshrined in this Bill.
Mr. O'Malley: I hope that that philosophy is reported in the newspapers.
Dr. O'Donovan: The Minister is most anxious to throw mud on the Labour Party.
Mr. Desmond: We have a little bully-boy over there.
Dr. O'Donovan: We will not put up with the kind of thing that happened in December 1969 when the former Deputy Boland brought in a mob to try to hog Private Members' Time. That was the dirtiest piece of work I have seen since I came into this House. It is obvious that the Minister cannot take criticism. If one is being criticised one can sit back and try to close his mind to it.
Mr. Crowley: The Deputy is very sensitive to criticism.
Dr. O'Donovan: I recognise dirt when I see it.
Mr. Crowley: That is a very profound statement.
Dr. O'Donovan: The Deputy should explain what he means.
Mr. Crowley: I thought that the Deputy was an economist and not a philosopher.
Dr. O'Donovan: This is an extraordinary amendment. I could dissect this subsection. “In this section ‘forcible occupation...’ includes the act of locking, obstructing or barring any window.” How does one lock a window? Do you put a lock on it? How do you obstruct a window? Is it by being there physically and saying “Come on, I will deal with you”?
Mr. Tunney: Does the Deputy see the comma?
Dr. O'Donovan: How does one obstruct a window?
Mr. Tunney: The Deputy is talking about locking a window.
Dr. O'Donovan: This is a piece of bad drafting.
Mr. Desmond: Santa Claus comes down the chimney. He would break the law under this Bill by doing so.
Dr. O'Donovan: Anyone who starts talking with me about the drafting of this Bill is going to get what is called “a black eye and a bloody nose”.
Mr. Tunney: The Deputy did not see or did not appreciate the relevance of the comma.
Dr. O'Donovan: I will leave that point.
A Deputy: Does the Deputy find it hard to transfer himself from the classroom to the Dáil.
Dr. O'Donovan: It would have done the Deputy no harm if he had come to my classes. It has been said before that doing economics in university must be a very exciting process.
Mr. Tunney: Was Deputy FitzGerald a pupil of yours?
Dr. O'Donovan: That is not a bad shot.
Mr. Tunney: The Deputy does not claim responsibility for him.
Dr. O'Donovan: I am not going to discuss a colleague in relation to economic matters. Subsection (c) reads:
(c) the act of physically resisting a lawful attempt at ejection from land or a vehicle.
What is a lawful attempt at ejection? This is already covered by the common law. We all know what would be a lawful attempt at ejecting a person. However, that is not the way legislation should be drafted or dealt with.  Words should have precision and the Bill should have been drafted in a different fashion.
Mr. P.J. Burke: The Deputy does not want any person ejected. If squatters enter his home, will he allow them to stay there and take over the premises?
Dr. O'Donovan: The Deputy and myself have been around for too long for either of us to believe the point he has made. There is no reality in it. This method of drafting legislation is deplorable and I have complained about it time and again. It is quite possible that the draftsman may get instructions to prepare a certain type of Bill which is contrary to commonsense. The common law — the oldest law of the land — deals with all of these matters.
Mr. Tunney: I had hoped that we would have got through this section more expeditiously. In the manner in which we are addressing each other I am afraid some of us may say things about which we are not too happy. I should prefer to think that the Bill is aimed at protecting people rather than aimed at offending someone and that should be the spirit of all legislation. I should like, too, to put before some of the Deputies who have spoken what I think is a poor effort by them to oppose the Government in everything they attempt to do — these are their words.
So far as I am concerned I own my house and I make no apologies to anyone for this, nor do I think the community would expect me to make any apologies to anyone for ownership of my property.
Mr. P.J. Burke: According to Deputy Desmond the Deputy is a property owner.
Mr. Desmond: I also own my own house. So what?
Mr. Tunney: I am not making any apologies for that fact nor am I afraid to use the word “property”. That Deputy Desmond should talk about people who would come in and take  over my property as being the undemocratic occupants of my house is going a long way towards consideration of someone who would steal or take over my property.
Mr. Desmond: I used the word “illegal”.
Mr. Tunney: The Deputy spoke about undemocratic occupation.
Mr. Desmond: And illegal. I was not talking about private housing. I was talking about British Rail.
Mr. Tunney: British Rail or any other company have the same rights in the matter of property as I have. Deputy O'Donovan was not correct when he spoke about his desire to have precise legislation because he spoke about inserting after “the act of locking” the word “door”. Apparently the Deputy thinks that lands are enclosed by doors. Surely if the Deputy includes the word “door” he would also have to include the word “gate”? This is an example of the lack of precision I see in the Deputy's recommendations.
Dr. O'Donovan: I agree with the Deputy. I think the word “gate” should be inserted.
Mr. Tunney: I had not intended making any comment on this but, having heard what I consider to be dangerous statements by Members in this House, I feel obliged to comment. I agree with Deputy Pattison that if there is a house lying idle a case can be made for putting a family into that House until such time as the owner requires it. However, it would be rather difficult to legislate for such an eventuality. Deputy Pattison was followed by Deputy O'Donovan who stated that, as he saw it, a man with a wife and family was entitled to enter an empty house. Deputy O'Donovan is the person who is advocating precision and as he did not qualify the term “empty house”, am I to take it that while I am on holiday and my house is empty that——
Dr. O'Donovan: The Deputy is not being precise. The house is not empty when a person is on holiday.
Mr. Andrews: It is unoccupied.
Mr. Tunney: If we pursue Deputy O'Donovan's philosophy, after I have died other people may come in and empty the house of my possessions; the house becomes both unoccupied and empty and as far as the Deputy is concerned my wife and children could not resist.
Dr. O'Donovan: I took the example Deputy Dowling gave.
Mr. Desmond: According to Deputy O'Donovan the man is already dead.
Mr. Tunney: I would ask the Chair to keep the gentlemen on my left as quiet as I remained when they were speaking.
Acting Chairman (Mr. Tully): If the Deputy would address his remarks to the Chair some of the cross-talk could be avoided.
Mr. Tunney: Deputy Desmond may have his own good way of ensuring that he will not have to leave this life. However, I accept that some day I shall die and I am concerned about the attitude expressed here that after my death someone has the right to come and take over what belonged to me because I no longer require it. That statement has been made by Deputy O'Donovan.
Dr. O'Donovan: I said you would not notice it.
Mr. Tunney: —— and ipso facto it was no injustice——
Acting Chairman: This is Committee Stage and Deputy O'Donovan will get an opportunity of refuting anything that he considers to be incorrect.
Dr. O'Donovan: I do not think I shall bother.
Mr. Tunney: When making the case against Deputy Dowling, Deputy O'Donovan, commenting on an instance of a man who had died, said: “What difference would it make if the man was dead?” The case he was making was that somebody else could then take the property. Deputy  O'Donovan referred also to the fact that Deputy Dowling had expressed concern for a blind man.
Dr. O'Donovan: This is a typical piece of crawthumping.
Mr. Tunney: Is he suggesting that because a blind man cannot see his house or cannot enjoy it by seeing it, somebody else could take it?
Mr. T.J. Fitzpatrick: (Cavan): This is obviously for the benefit of the visitors' gallery.
Dr. FitzGerald: It is certainly very entertaining.
Mr. Tunney: With all due respect to Deputy Fitzpatrick, I have as much right to decide how best to make my contribution as he has.
Mr. T.J. Fitzpatrick: (Cavan): Of course.
Mr. Tunney: I sat here on occasions and listened patiently to Deputy Fitzpatrick making what I would regard as idiotic statements. I ask the Chair to request the Deputy to at least grant me the same respect as I have granted him.
Mr. T.J. Fitzpatrick: (Cavan): I am merely trying to understand the Deputy.
Mr. Tunney: If there is a lack in the Deputy's facility in that regard, he cannot blame me.
Acting Chairman: We cannot continue on those lines. I would ask Deputy Tunney to address the Chair and I ask Deputy Fitzpatrick and other Deputies to allow him to make his comment. Deputy Tunney must not encourage interruptions by taking up points with those who have spoken earlier.
Mr. Tunney: I would not have risen at all were it not for my genuine concern regarding some of the statements made. The section we are dealing with is for the protection of people's property. Under our Constitution it is not an offence to own property and people who have property are entitled  to have it protected. This is what we are seeking to do and Deputies should not oppose for the sake of opposing. Some of the remarks made by Deputies opposite may have been made in the heat of the moment but I hope that when those Deputies speak later they will indicate that they did not express their real attitude towards people who have property.
I have no interests apart from being a politician. In this context it was most unfair of Deputies to point a finger at Deputies Burke and Dowling who happen to have an interest in the auctioneering business. Since I became a Member of the House I have seen Deputies who are members of the legal profession being very watchful of anything that might be said which might militate against their particular profession.
Dr. O'Connell: It is difficult to say who threw the first stone.
Acting Chairman: If we could get back to the amendment perhaps we would make some progress.
Mr. Tunney: I would ask the Chair to bear with me for a moment or two so that we might ascertain what is our attitude towards each other here. Members of the legal profession——
Acting Chairman: This is not a matter for discussion on the amendment. Neither is what somebody said previously a matter that should be discussed. I do not wish to stop the Deputy from speaking but he should confine himself to the amendment.
Mr. Tunney: Since the argument has been made that those who have spoken in favour of this legislation had no interest other than their interest in auctioneering and property I think one should be entitled to remark that people here generally indicate an interest in matters connected with the legal profession, in matters connected with education or in matters connected with medicine or with trade union matters. I should hate to think that because some Deputy happened to have been engaged in any particular profession before coming here or even  during his time here, that it would be pointed out to him that a case he made in respect of any legislation was made for any wrong reason.
Mr. T.J. Fitzpatrick: (Cavan): As I said earlier, there is no necessity for people to become unduly annoyed during this discussion and neither is there any necessity for anyone to be thin-skinned. I do not wish to continue on the lines that Deputy Tunney has followed except to make one passing remark. Great exception seems to have been taken here this morning to some reference that was made to the auctioneering profession. I cannot but say that during the past 40 years all sorts of accusations have been levelled at the legal profession by people on the benches opposite but we had to put up with them. I admit that in recent times these remarks are less numerous. I suppose this is because there are more members of the legal profession over there now than there are here.
Dr. O'Connell: We have none.
Mr. Andrews: You have aspirants.
Dr. FitzGerald: Deputy O'Leary is doing his best.
Mr. T.J. Fitzpatrick: (Cavan): Obviously, on Committee Stage of a Bill, personalities are irrelevant and are not helpful. I only wish to deal with this amendment in so far as it relates to the points I have been making all along in relation to the definition of “owner”. Deputies Tunney, Burke and others over there seem to be very anxious to preserve the right of the occupier of property to occupy that property. That seems to be the justification for this Bill and the only grounds on which it can be justified. Under this section it is to be illegal for most people to enter a house and barricade the doors and windows in such a way as to prevent the occupier from means of entry or exit. However, the one person for whom it is not to be illegal is some remote landlord. Under the law that is proposed in this Bill it is to be legal for a landlord who has leased his house for 10,000 years to come along some fine morning and,  while the lessee is out, go into the house, lock the door and prevent the unfortunate tenant from getting in. If the tenant goes for the guards, they will say that this is the fee farm grantor and so they cannot interfere.
Mr. O'Malley: I do not want to interrupt the Deputy but surely he will agree this arises on section 1. It arises on the definition section and I have said that I will look at it again before the Report Stage.
Mr. T.J. Fitzpatrick: (Cavan): So long as the definition stands as it is I am entitled to make this argument in the hope that I will convince the Minister. So far the Minister has only said he will think about it. In those circumstances I am justified in saying that so long as the present definition stands the whole thing is absurd. As I have said, where the lawful tenant finds himself barricaded out by the fee farm toll, the garda will say: “This is a family dispute. You will have to rely on the civil law”. He will go to his solicitor and the slow process of civil law will ensue and it might be 12 months before he gets the man out. That is the type of Bill Deputy Burke is hailing as the salvation of property owners. There was the case of the Hume Street houses. Under the fee farm grant the person could issue a licence to all the protesters in Dublin——
Mr. P.J. Burke: The Deputy knows well enough that this Bill was brought in for one purpose and that is not for the ordinary civil case that will come up day after day.
Acting Chairman (Mr. Tully): Perhaps it would be easier if the Deputy were allowed to make his own speech.
Mr. T.J. Fitzpatrick: (Cavan): Deputy Burke and a few other decent men over there do not realise this is a Bill that discriminates heavily in favour of the landed gentry, as it is drafted, and it does not protect the occupier. The Minister says he will look at this again and I can understand him being a little annoyed and  impatient with me for going on in this way. He has said he will look at section 1. I say he must do more than have a look at it.
Mr. O'Malley: When we were on section 1 was the time to emphasise that.
Mr. T.J. Fitzpatrick: (Cavan): No. It goes right through the whole blessed Bill. I think some members of the legal profession who might be asked by landlords, “Can I go in and put out the tenant with jackboot methods”, would be justified in advising, if this Bill becomes law, “You will not be violating the criminal law”.
Mr. O'Malley: They would be no more entitled to do it then than now.
Mr. T.J. Fitzpatrick: (Cavan): Under the law as it stands, it is believed that forcible entry is illegal, but the law officer does not think it would be wise to rely on that. The present law and the common law are strong enough but this Bill will be accepted when it has been enacted and a solicitor would be inclined to advise his landlord client accordingly. I repeat that this Bill was drawn up in haste at a time when there was squatting in Dublin and it did not get proper consideration. I am glad the Minister is to think about this again but there are so many flaws in it that I think he should withdraw the whole measure.
Dr. O'Connell: I was interested to hear Deputies Dowling and Tunney speak on the section. We all know that the problem of squatting in Dublin is not important. There are 140 squatters out of 150,000 tenants. The problem was solved not by the 1970 Housing Act but by the simple expedient of the corporation handing over unoccupied houses more quickly instead of waiting for the maintenance department to clean up and redecorate houses. As soon as the keys become available the houses are now being handed over to the next applicants. It is as simple as that. There is nothing more frustrating to a person than not to know where his name is on the list at a time when there are empty houses. This was encouraging  people to squat because they did not know where on the list they were. The squatting was understandable and since the corporation have been handing over the houses more quickly there is no problem. Now, Mr. Thompson is making full information available more quickly. That being so, there is no need for this Bill.
Mr. Dowling: The corporation do not clean the houses now. Why should not corporation tenants get clean houses?
Dr. FitzGerald: That is what the Bill is for.
Dr. O'Connell: This has been bringing in more revenue to the corporation and has solved the whole problem in Dublin.
Mr. Dowling: Dirty houses are not good enough for people on the waiting list. If it is the policy of the Labour Party to give out dirty houses, that is all right.
An Ceann Comhairle: We seem to be discussing the administration of Dublin Corporation.
Dr. O'Connell: The answer to the squatting problem was not this Bill but the handing over of houses more quickly. I do not see why this is not relevant.
An Ceann Comhairle: It is not relevant.
Dr. O'Connell: With respect, I am saying it is.
An Ceann Comhairle: The Deputy is making a Second Reading speech and not remarks on a section.
Dr. O'Connell: Deputy Dowling referred very emotionally to blind men and dead men. I was very interested to hear that because I know of a case where Dublin Corporation took the belongings of a man who had died and threw them in the dump. His relatives came home from England and wanted to know what had happened to his things. I do not see any Bill being brought in to deal with this. I do not see Deputy Dowling standing up in the  Dáil when the corporation dispose of a dead man's belongings.
An Ceann Comhairle: This has nothing to do with the amendment.
Dr. O'Connell: It is relevant. Deputy Dowling raised this point.
An Ceann Comhairle: That does not make it relevant. The Deputy must relate his remarks to the amendment before the House.
Dr. O'Connell: This Bill was brought in——
An Ceann Comhairle: We are not discussing the Bill. We are discussing an amendment.
Dr. O'Connell: I would hope we are discussing this section.
An Ceann Comhairle: We are not discussing the section. We are discussing an amendment.
Dr. O'Connell: It is an amendment to this section, is it not?
An Ceann Comhairle: Will the Deputy make up his mind what he is discussing?
Dr. O'Connell: I will say this much: there are more than a few Deputies who are testy this morning. I would recommend that we do not have morning sessions because very many people appear to be testy. Deputy Tunney said this section was aimed at protecting people. I do not think any Bill is necessary to protect the strong against the weak because the strong will always take care of themselves.
Mr. Tunney: Does that apply to medicine?
Dr. O'Connell: It applies to every aspect of life. The strong do not need any Bills to protect them against the weak. It is the rights of the weak that we want to defend.
Mr. P.J. Burke: This Bill is to protect the weak.
Dr. O'Connell: With due respect to Deputy Burke, for whom I have a very high regard, I think he is wrong. This Bill is aimed at protecting the strong. I do not think British Rail have suffered  immeasurably because of the sit-in which occurred there last week or the week before. I do not think anyone is upset or disturbed about it. We are living in an age of protest. Because of protest we do not have wars and it is very important for the House to realise this. It is a pity there were not a few more protests prior to 1939 because if there had been we might not have had that holocaust. Are the Americans bringing in measures to stop the protestors who took over a public park in Washington? If we try to stop protests we shall encourage a situation which will develop up north. Anything that happens up north may happen here and this is the great danger. Protests do no harm. They highlight unjust situations and in that way serve a very useful purpose.
Deputy Tunney said that Deputy Pattison said that a person had a right to occupy an empty building, but he quoted him out of context. What Deputy Pattison said was that under objective moral law a homeless family would be entitled, if they saw an empty house, to occupy it. He did not say we should have legislation or anything like that. I think Deputy Tunney will agree that is exactly what Deputy Pattison said.
Mr. Tunney: That could be interpreted by someone reading the debate as meaning that anybody who does not have a house is entitled to occupy a house which is empty.
Mr. T.J. Fitzpatrick: (Cavan): Most people are familiar with the moral law.
Dr. O'Connell: What would the Deputy think of the rights of the Holy Family to occupy the stable which they occupied?
Mr. T.J. Fitzpatrick: (Cavan): As long as they did not lock the door they would be all right under this Bill.
Dr. O'Connell: Were Joseph and Mary entitled to occupy that empty stable?
Mr. Dowling: Are we living in the stone age?
Dr. O'Connell: No, we are not. It is as relevant today as it was then.
Mr. O'Malley: I take it we are still on the amendment?
An Ceann Comhairle: Would the Deputy come to the amendment?
Dr. O'Donovan: Deputy Burke is trying to preach.
Mr. P.J. Burke: No.
An Ceann Comhairle: Order.
Dr. O'Donovan: The Deputy preached a fair amount this morning.
Dr. O'Connell: If people lock a door or bar a window with the intention of preventing entry, and if they do not prevent, although it was their intention to prevent, will they be guilty of an offence? I am thinking of strikers in the Fiat plant in Ballyfermot——
Mr. Dowling: The Bill does not apply to strikers.
Dr. O'Connell: Well, anyone who occupies, if he closes the window——
Mr. Dowling: It does not apply to strikers.
Dr. O'Connell: It does not. They are protected. But, anyone who locks a window with a view to stopping someone coming in——
Mr. T.J. Fitzpatrick: (Cavan): For Deputy Dowling's information, the Bill as originally drafted applied to strikers but the Minister introduced an amendment.
Mr. O'Malley: In fact, an amendment was brought in like a large number of others to make what was already known to lawyers clear to non-lawyers and Deputy Fitzpatrick knows that.
Dr. O'Donovan: In other words the amendment was a piece of window dressing.
Mr. T.J. Fitzpatrick: (Cavan): Maybe Deputy Dowling inspired the Minister to bring in an amendment excluding trade unionists.
Dr. O'Connell: If they lock a door with a view to preventing entry, but do not in fact prevent it, is that a criminal offence?
Dr. FitzGerald: From some of the discussion I have heard one would get the impression that the Bill was designed to prevent people from squatting but that is an over-simplification. As far as squatting in corporation property is concerned that is covered by another Bill. This Bill does not in fact prevent people squatting. It says they must not squat by effecting a forcible entry and if they do enter peacefully and not forcibly they must not then lock certain doors or bar certain entries, which is a very different thing from banning squatting.
Even if one could justify this Bill as necessary or desirable, which I do not believe is the case, one cannot justify the kind of definition of forcible occupation of land or a vehicle which is included in the subsection we are seeking to delete. The section refers to forcible occupation of land or a vehicle. If, in fact, the occupation is forcible I can see a case being made —although I do not believe this is the right way to tackle the problem— against people using force in defence of something to which they have not got a legal right. It may be undesirable to legislate in that way for a variety of reasons but I can see a case being made for it. I cannot, however, see a case being made to define forcible occupation as something which is not forcible.
The only purpose of this subsection is to distort the meaning of the plain words in the section itself. By no possible interpretation of the English language, other than the subsection it is proposed to introduce, could the locking of a door or the barring of a window be regarded as forcible. It is not an act of force and the fact that a subsection is thought necessary by the Minister shows that I am right. He is not satisfied that by leaving the words  in their ordinary meaning they will be given this interpretation. He has therefore introduced this extraordinary interpretation that if somebody locks a door, bars a window or bars a gate it is a forcible act, the purpose of this being to stigmatise it in a way that will secure public odium and public support for the punishment of people who engage in such terrible acts as locking doors and barring windows. This is indefensible even in the context of the Bill as drafted and even from the point of view of those proposing the Bill.
Supposing people squat, as they are entitled to do under this Bill in the sense that there is no legal prohibition on them provided they do not do it forcibly, they enter peaceably into an empty property—as Deputy O'Connell has said it may be a barn or a stable, a flat or a house which is unoccupied.
Dr. O'Donovan: They find the door open.
Dr. FitzGerald: They find the door open and they walk in. They are not committing any offence under this Bill or under any other Bill. They are of course doing something which is open to the civil action of trespass but they are not engaged in any criminal offence. They settle themselves down for the night in this empty place which is perhaps available in this form because it is going to be demolished or because people seem to have abandoned it. In the middle of the night—and I am not imagining this because we have seen this happen at four o'clock on a Sunday morning—a gang of 30, 40 or 50 toughs, mobilised for the purpose, come along and threaten to burst in the door and throw out the occupants. Having seen this threat the occupier then locks the door or bars the window to protect his wife and family, as any ordinary person would do in those circumstances, but by so doing he converts a perfectly normal civil offence of an arguable character into a criminal act and he gets sent to jail.
If the other side of this House want to make squatting a criminal offence as such let them do so openly. They are trying to do it by the back door. They are trying to do it by trapping people so that when they squat in a manner  which is not illegal and enter into property which is abandoned they can be got at and sent to jail if they dare to commit the heinous offence of facing a gang of toughs, such as the kind who descended on Hume Street and try to protect their wife and children by barring a door or a window. As squatting is not a criminal offence then the act of a man threatened with violence in trying to protect his wife and family in conditions which are not themselves criminal is something for which he could not and should not be penalised by any parliament. I do not believe any other parliament has ever attempted so to penalise people as it is proposed in this Bill. It is on those grounds that this subsection is objectionable. It is a back door way of trying to get at people who squat in a manner which is not illegal and to penalise them because they may seek to protect themselves against attack.
Now, if the Minister had shown some regard during the past year for the threat to property, and to the persons of people opposed by the private police force of the kind that descended upon Hume Street, and legislated against this kind of private violence to bring it under control, as, indeed, he was asked to do by way of questions in this House tabled by Deputy J. Keating and myself, one would have a little more sympathy with what is proposed here; but the Minister is not concerned with these private armies and is not concerned that these private armies can descend on people in the middle of the night and attack them violently.
Mr. O'Malley: They are subject to the law in the same way as every other citizen is.
Dr. FitzGerald: The attackers are not sent to gaol but the people who are there peacefully are subject to the law.
Mr. O'Malley: What Deputy FitzGerald is saying is quite dishonest.
Dr. FitzGerald: The attackers were not sent to gaol, but the people who were peacefully on the premises and  who were attacked by a private army mobilised for that purpose were sent to gaol. It is a great consolation to them to be told that if they can get witnesses and bring the attackers to court there will be a fine of £5 on the leader of the private army. That is not much consolation to a man. It is not much consolation to be told that, if he is injured, he may be able to prove the offence. When these people descend in the middle of the night it is not easy to get witnesses. It happened in the case of Hume Street that there were witnesses whose word was accepted by the court but there might not be any witnesses. The Minister has refused to legislate against these private armies and they can range around and attack any man they like and the Minister will do nothing.
Mr. O'Malley: The Deputy knows perfectly well these people are subject to the law and they will be prosecuted in the same way as any other offender against the law is prosecuted. The Deputy comes in here and makes totally dishonest statements and deliberately repeats them.
Dr. FitzGerald: The Minister is aware that in this particular instance a large group were organised for the purpose of launching this attack. They were not people under discipline. They were just ad hoc recruited in the middle of the night to engage in the criminal conspiracy of attacking people, to beat them up and throw them out in the street, people I brought to hospital subsequently when I arrived on the scene an hour or two later. The Minister says that is all right; anybody who is beaten up in this way can go to the court and prove his case and there will be a fine of £5 against the leader of the gang. He has no concern with the organisation of conspiracies of that kind at all. The ordinary law is sufficient in that case, although it proved insufficient in the particular case, and the only penalty imposed was a £5 fine.
Mr. O'Malley: Is that my fault?
Dr. FitzGerald: The Minister is responsible for legislation and he has  refused to bring in legislation to control such private armies; he brings in legislation, however, to turn into a criminal a man peacefully squatting in premises.
Parliamentary Secretary to the Taoiseach (Mr. Andrews): Illegally.
Dr. FitzGerald: No—legally. It is a civil offence in which the owner can take action. He is committing no crime but the Minister will turn him into a criminal and, when he is threatened by a private army the Minister will do nothing to control, he defends himself by locking a door or barring a window, the Minister will turn him into a criminal. The Minister's order of priorities is a very odd one. We cannot support it. We should be concerned with protecting the weak, not the strong. We should be concerned not to give free rein to private armies to beat up innocent people. The Minister should be concerned with providing adequate housing for squatters and, if people are forced to seek shelter in an abandoned house and they are not committing a crime, we should ensure that we do not by any act of ours make criminals out of them with a view to protecting private interests, the interests of developers and others of that ilk.
Mr. O'Malley: I will, at least, pay Deputy FitzGerald the courtesy of replying to him, though a great deal of what has gone on here this morning had the sole purpose of delaying the enactment of this legislation. It is quite clear that it is only if a squatter locks a door, a window, or anything else, with the purpose of resisting a lawful attempt to enter, that an offence on the part of that squatter would arise. There is no question of a man, who is endeavouring to protect himself, his family, or his goods, from unlawful attempts at ejecting him or interfering with him, committing an offence under subsection (2).
Dr. FitzGerald: As long as it is lawful to beat him up.
Mr. Cooney: The Minister may be able to assist me on one point. He indicated that the examples given in  the subsection are not exclusive. As they are not exclusive, a situation could arise in which the courts would be faced with having to decide if a particular action at any given time constituted forcible occupation so as to commit an offence. I have no doubt the courts would be referred back to existing legislation, the old Acts mentioned here on Second Reading, one of which sets up the offence of forcible detainer, which would be analogous with this particular section; it indicates that an offence would be committed by a mortgagor and a mortgagee would be entitled to take possession. The same situation would arise in the case of a tenant whose lease had expired. This has been provided for in the amendment in regard to an offence of owner. The mortgagor, however, is not protected by the definition of owner. Likewise, a tenant who would forcibly resist a distress for rent would commit an offence of forcible detainer under the old Act. Would the Minister deal with these points? How would people who would be bona fide in possession, but not under a claim or right in accordance with the amendment, be protected?
Mr. O'Malley: These are essentially again section 1 points arising out of the definition. They do not really concern the section we are dealing with at the moment. I understood as a result of the very lengthy discussion we had on the various amendments made to section 1 that everybody who was interested in the matter—Deputy Cooney, Deputy Fitzpatrick and myself; there were not very many interested —was satisfied that all these points were covered. The question of an over-holding tenant was specifically covered. I am perfectly satisfied that a mortgagor, as Deputy Cooney puts it, is protected. I do not think his use of the words “is protected” is quite right because it transposes the thing. This is the creation of an offence, not the creation of some sort of civil defence. I do not think that arises at all. Any dispute between a mortgagor and a mortgagee, even if the mortgagee had become entitled to possession, would be purely a civil matter, and the question of whether or not the mortgagor was  entitled to possession could only have arisen as a result of some civil decision, either because of a provision in the mortgage deed or, far more likely and more usual, because of some decision by a civil court. Few, if any, mortgages would seek to exercise any right of possession without an order of the court. It would then, of course, be a matter for the officials of the court to enforce the order.
Mr. Cooney: Where the proceedings reached the stage that the mortgagee had obtained an order for possession and the mortgagor refused to give possession, it would appear that under this section the mortgagor was committing an offence. Is that correct?
Mr. O'Malley: No.
Mr. Cooney: Will the Minister say why it is not correct? It must be an offence under the section because, as the Minister says, the matter has gone through the courts and the mortgagor cannot plead a bona fide claim of right. Consequently if he remains in possession after the mortgagee obtains an order for possession or is entitled to possession, he is committing an offence under this section.
Mr. O'Malley: He is not, as the Deputy knows.
Mr. Cooney: I do not know. Would the Minister say why?
Mr. O'Malley: It is purely a civil matter, and the Deputy knows that.
Mr. Cooney: If I may read the section to the Minister.
Mr. O'Malley: I have read it many times. The Deputy might save himself the trouble.
Mr. Cooney: It says:
(1) A person who remains in forcible occupation of land or a vehicle shall be guilty of an offence unless he is the owner of the land or vehicle.
Or unless he has entered it in pursuance of a bona fide claim of right.  Then it goes on to define what are certain types of forcible occupation. However, the Minister indicates that these are not exclusive. Far from it; these are only three examples. I then raised the question of a mortgagor who remains in possession. Is he in forcible possession or not? If he locks a door against the mortgagee, it could be forcible under that definition. He would not get out as the owner—he is not the owner—and he would not get out as being present in pursuance of a bona fide claim of right, because that is a matter which would have been adjudicated upon by the court. The court having determined that question, he must then be in forcible occupation and in the course of committing an offence. Under this section as drafted, therefore, if he locks a door or bars a window or, if it is held that those three subparagraphs of subsection (2) do not apply and guidance is sought under the old Act, it will be found he is specifically included as committing an offence of forcible detainer. I would like the Minister to specify why he says the person is not committing an offence.
Mr. O'Malley: There are probably a number of reasons why he is not. The Deputy gives a very precise, very limited example, and when he takes a specific example such as this I suppose it is necessary to give a specific reply to him. The specific reply is that the mortgagor still has, at this stage, equity of redemption. He still has an estate or interest while he is in possession and, as a result, he is excluded from the terms of the Bill. There is the further factor—I would have to have time to examine the implications of it—that there is no question in this case or any such case of the man having broken in or having gone in illegally. That of itself does not necessarily prevent his subsequently committing an offence, but if these rather strained examples are taken——
Mr. Cooney: Not strained, perfectly natural and something that could arise.
Mr. O'Malley: It is perfectly obvious that a dispute of that nature  between a mortgagor and a mortgagee is a civil matter. The people concerned would treat it as a civil matter. In the situation the Deputy is envisaging it would have already had to go through the civil court. It is not a matter therefore in which the Garda Síochána would take any hand, act or part.
Mr. Cooney: This highlights my point, that this Bill is riddled with situations which demand to be determined by the civil law, not by the criminal law, and which probably would be determined by the civil law; but the Bill as drafted permits them to come within the ambit of the criminal law. This is altogether wrong. That is on the general point with which the Minister ended his remarks. However, on the specific answer he gave, that there would still be an equity of redemption, I would suggest that that equity would have been lost if the proceedings had reached the stage where the mortgagee had an order for possession. Even if there was an equity of redemption, it still does not come within the definition of “owner”, because the definition of “owner” is a person “entitled to the immediate use and enjoyment ...”. If the equity  of redemption could exist—I do not concede it can still remain extant, but even assuming it is—it would be superseded by the right of the mortgagee to have possession and, consequently, the definition of “owner” as a person entitled to the immediate use and enjoyment of the property would not apply.
Mr. O'Malley: The words “any person having an estate or interest” would apply.
Mr. Cooney: Then we get back to my earlier point that the equity of redemption, which is the only thing which could give the person an estate or interest would not be extant any longer. It would have disappeared.
Mr. O'Malley: That is a matter of opinion. It is so very much a matter of opinion that the Deputy can be sure the Garda would not be involved.
Mr. Cooney: With respect to the Minister, it is not a matter of opinion; it is a matter of law.
Question put: “That the words proposed to be deleted stand.”
The Comittee divided: Tá, 62; Níl, 50.
Brady, Philip A.
Burke, Patrick J.
Connolly, Gerard C.
de Valera, Vivion.
Fitzpatrick, Tom (Dublin
Foley, Desmond. Smith, Michael.
Healy, Augustine A.
Hillery, Patrick J.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Sherwin, Seán. Timmons, Eugene.
Clinton, Mark A.
Conlan, John F.
Cooney, Patrick M.
Dockrell, Henry P.
Donegan, Patrick S.
Enright, Thomas W.
Esmonde, Sir Anthony C.
Fitzpatrick, Tom (Cavan).
Harte, Patrick D.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Mc Laughlin, Joseph.
Murphy, Michael P.
O'Connell, John F.
O'Higgins, Thomas F.
O'Sullivan, John L.
Tellers: Tá, Deputies Andrews and Meaney; Níl, Deputies L'Estrange and Begley.
Question declared carried.
Section 3, as amended, agreed to.
Mr. O'Malley: I move amendment No. 12:
In page 3, to delete lines 25 to 34 and substitute:
“(2) Where a statement in contravention of subsection (1) of this section is made by or on behalf of a group of persons, every person who is a member of the group and who consented to the making of the statement shall be guilty of an offence under that subsection.
(3) In a prosecution of a person (in this subsection referred to as the defendant) as a member of a group for an offence under subsection (1) of this section in relation to a statement made by or on behalf of the group, if, having regard to all the circumstances (including the constitution and rules, if any, of the group, and the extent to which the defendant had participated in the activities of the group), the court thinks it reasonable to do so, it may regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the part of the defendant in the absence of any adequate explanation by him.”
I am moving this amendment in accordance with the spirit of the undertaking which I gave on Second Stage that I would agree to changes in section 4 which would meet the reasonable suggestions of Deputies without however interfering with the basic object of the section. That object, as the House is aware, is to enable the Garda and the courts to deal with the organised intimidation and violence engaged in by subversive and quasi-political groups who encourage and promote acts of squatting and illegal occupation of property.
In order to explain the amendment it is first of all necessary to refer to what is contained in subsection (1). That subsection makes it an offence for a person to encourage or advocate the commission of an offence of  forcible entry or forcible occupation. Contrary to what has been alleged by some Deputies and commentators, there is nothing novel or unusual about the offence thus created. In fact, the offence has exact parallels in, and will operate along-side, the three common law offences of inciting, aiding and abetting, and counselling or procuring the commission of a crime. These are concepts that have been firmly rooted in the common law for a very long time, and two of them, aiding and abetting and counselling or procuring, were imported into statute law generally by section 22 of the Petty Sessions (Ireland) Act, 1851, in relation to summary offences, and by the Accessories and Abettors Act, 1861, in relation to indictable offences. The words “encourages or advocates” are considered more suitable in modern times to express the element that is common to all three offences.
Dr. FitzGerald: An unhappy precedent.
Mr. O'Malley: It has been there for 120 years and nobody saw fit to seek to remove it.
Mr. Davern: The Deputy made allegations here before and he will get one back now if he is not very careful.
An Ceann Comhairle: Order.
Dr. FitzGerald: Could we have clarification of this very extraordinary intervention?
Mr. Davern: Jobs for relatives.
An Ceann Comhairle: Let us keep to the amendment. This has nothing to do with the ministerial amendment.
Mr. T.J. Fitzpatrick: (Cavan): Is it right that Deputies should come in here and make veiled accusations against Deputy FitzGerald and not go on with them? It is typical of what comes over here. We had this from the Minister for Finance the other day and we have Deputy Davern bolstering it up. If he wants to engage in this type of thing he should get out——
Mr. Cooney: He saw Deputy FitzGerald  in the House and he came in to intervene.
An Ceann Comhairle: We are on the amendment.
Mr. T.J. Fitzpatrick: (Cavan): It is not in order to damage a person's character by innuendo and then to remain mute.
Dr. FitzGerald: Could we have further development of that from Deputy Davern?
Mr. T.J. Fitzpatrick: (Cavan): We can see what type they are over there.
Mr. O'Malley: The offence of incitement, according to the text-book definition, consists of counselling, commanding or advising another to commit an indictable crime. Incitement is itself an indictable misdemeanour punishable by fine and/or imprisonment. As the punishment is not regulated by statute, there is theoretically no limit to the amount of fine or the length of imprisonment that may be imposed. It is immaterial whether or not the crime incited is actually committed. If it is committed, the person who incites is guilty also of participating in the completed crime by counselling or procuring its commission. One may under our law incite persons generally, as in a newspaper article, and the person incited need not be known. Moreover, since incitement relates to criminal conduct which has not—or has not necessarily—been completed, it is immaterial that the incitement had no effect on the person solicited.
According to the common law doctrine of common purpose, when several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, that is to say, guilty of aiding and abetting, in respect of every crime committed by any one of them in the execution of that purpose.
A person who counsels or procures the commission of a crime that is afterwards consummated is himself guilty of participating in that crime as an accessory before the fact in the case of  felony and as a principal in the case of misdemeanour. Anything done intentionally by way of encouragement is sufficient to render a person guilty of participating in the crime in one or other of these capacities.
Notwithstanding the fact that at common law these parallel offences would exist in any event, the inclusion of subsection (1) of section 4 in the Bill is justified on the ground that there is a substantial deterrent effect to be derived from spelling out the law in clear terms in a modern statute, thereby putting those concerned on notice that they are leaving themselves open to heavy penalties if they encourage others to commit offences under section 2 or 3.
The amendment provides for the substitution of two new subsections for the existing subsections (2) and (3) of section 4. The existing provisions have been criticised by Deputies on the grounds, firstly, that they create a new category of so-called guilt by association, secondly, that they allegedly shift the burden of proof onto the accused person and, thirdly, that they seek to force an accused person to be disloyal to his comrades by providing him with a defence if he publicly disowns them. The first of these criticisms is doubly false in that the existing subsection (2) creates neither a new category of guilt nor guilt by association. The subsection is directly based on the position at common law in regard to the commission of an offence by a number of persons acting with a common purpose. Every person so acting has always been guilty of the offence committed even though the act constituting the offence may have been done by only one of the number. Indeed, at common law each such person is guilty of any other offences that may be committed by one of the group even if these are outside the scope of the original purpose, provided that they arise out of the probable consequence of that purpose. For example if A and B set upon C to beat him up and A kills C, B is also guilty of murder.
However, notwithstanding that there is no basis for the allegation of guilt by association, I have decided to meet  the views of Deputies by providing in my amendment for a redraft of subsection (2) in which consent is expressed to be necessary to render a person guilty of an offence as a member of a group in relation to a statement in contravention of subsection (1) made by or on behalf of the group. This revised subsection will be much less severe on the members of a group than the existing common law offence, for which, as I have already explained, the mere existence of common purpose, without specific consent to a crime perpetrated by one of the group, may be sufficient to incriminate all. The new subsection also makes clear what, perhaps, was not so clear in the original version, namely, that the offence therein referred to is an offence under subsection (1) and not a separate offence created by subsection (2).
I am satisfied that there is no foundation for the suggestion that the section as introduced transfers the burden of proof to an accused person. It is a cardinal rule of law that the burden of proof in a criminal case is on the prosecution, and there is nothing in the existing subsections (2) or (3) that shifts this burden in any way. The fact that an accused person is provided with a defence if he shows that the statement was made without his consent or without his knowledge does not mean that the burden of proof is transferred. In actual fact, the defences provided in the existing subsection (3) are ones which—on the analogy of the common law position—would not otherwise be available to the accused. The defence provided at (a) of the subsection, which attracted particular criticism, is completely new and would not be available to a person charged with the common law offence.
Here again, notwithstanding that I am satisfied that there is no substance at all in the criticism offered on this score, I am prepared, in deference to the views of Deputies and to prevent further dishonest criticism by outside commentators which seeks only deliberately to mislead the public, to rewrite subsection (3) in the manner proposed in the amendment in an effort to clarify the position as to the burden of proof.
The proposed new subsection provides  that, in a prosecution of a person as a member of a group for an offence in relation to a statement made by or on behalf of the group, it will be. open to the court, on the basis of the facts of the case as a whole, to regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the defendant's part, in the absence of any adequate explanation by him. I invite particular attention to the fact that it will be open to the court to act in this way only if it thinks it reasonable to do so. In other words, the court will not allow consent to be deduced in that way if it considers that there will thereby be any element of unfairness to the defendant.
I envisage that in practice the provision will operate in the following way. The prosecution will first of all have to prove that the alleged statement was actually made and that it contravened subsection (1); that it was made by or on behalf of a group of persons; and that the accused person was one of the group on whose behalf the statement was made. At this point the new subsection (3) will come into play and if, having looked at all the circumstances of the case, including the constitution and rules, if any, of the group and the extent to which the defendant participated in the activities of the group, the court thinks it reasonable to do so, it will inform the defendant that the prosecution has done enough to establish a prima facie case and that, in the absence of any adequate explanation by him, it may feel constrained to infer from the facts already proved that the defendant consented to the making of the statement. This is not a shifting of the onus of proof of guilt, but a transferring, at the discretion of the court, in respect of one aspect of the case, of the evidential burden or the burden of introducing evidence. This evidential burden is generally—though not necessarily always—on the prosecution and it is clearly distinguished by all the leading authorities from the burden of proof, or risk of non-persuasion of the jury as it is sometimes called.
An example in existing law of the  shifting of the evidential burden, as distinct from the burden of proof, onto the accused is the presumption arising from the possession of goods recently stolen. If a person is found in possession of such goods, there is a presumption of fact that he is either the thief or a receiver with guilty knowledge that the goods have been stolen. Thus, where the only evidence is that he was in possession of the goods, a court may infer guilty knowledge if (a) he offers no explanation to account for the possession or (b) it is satisfied that the explanation he does offer is untrue. If, however, the explanation offered is one which leaves the court in doubt, the accused is entitled to acquittal, the prosecution having failed to discharge the burden of proof of guilt.
Another example of the shifting of the evidential burden is to be found in section 28 of the Larceny Act, 1916, under which it is an offence for a person to be found by night in possession of housebreaking tools “without lawful excuse (the proof whereof shall lie on such person)”. It has been judicially held that the statute here is referring to the burden of introducing evidence and not the burden of proof. Thus if the accused establishes prima facie that he had a lawful excuse for being in possession of the tools, it is incumbent on the prosecution to prove that he had no such excuse. The amendment represents a genuine attempt to meet the point of view of Deputies who objected to section 4 on Second Stage and I would ask them to accept it in that spirit. The new subsections put it beyond doubt that a member of a group cannot be guilty of an offence where he was unaware of or did not consent to the making of a statement in contravention of subsection (1); and the new subsection (3) makes it clear that the onus of proof in relation to all aspects of the offence is on the prosecution, subject to the proviso that, where the court thinks it reasonable to do so, it may decide that consent on the part of the defendant is to be inferred from proof of the other principal ingredients that constitute the offence, namely, his membership of the group and the fact that  the statement was made by or on behalf of the group.
As I have explained, the effect of this is to place an obligation on the accused to offer an explanation of his position in the matter if a prima facie case has been established by the prosecution; and, on the basis of existing case law, it will be sufficient if he can establish a reasonable doubt in the mind of the court, since the overall burden of proof, that is to say, the burden of proving the accused guilty beyond reasonable doubt, will at all times remain on the prosecution.
Mr. T.J. Fitzpatrick: (Cavan): I find it rather difficult to address myself to this particular amendment to section 4 because I feel so strongly about section 4 in toto. I have down an amendment to oppose the section and I intend to oppose it very strongly. It is difficult to discuss this amendment without making some reference to subsection (1). This subsection makes it an offence to encourage or advocate the commission of an offence under sections 2 or 3 of this Bill. As I see that, some person who feels strongly about the inadequacy of housing in Dublin or throughout the country and who goes on a platform or goes into print denouncing very strongly the housing conditions here and saying it is an absolute disgrace that the people are not housed better, particularly at a time when premises which could be used for housing the people are being either knocked down to make sites for office suites or are being converted into office suites, could be punished. Such a person could be held under this section to be encouraging and advocating the taking of illegal possession of these houses. The editor of a newspaper who felt very strongly about this and wrote a leading article denouncing as strongly as he possibly could the conversion of houses throughout the country into office blocks when the people were still inadequately housed could be said to be encouraging people to take possession of those houses.
Mr. O'Malley: The Deputy knows it is not so.
Mr. T.J. Fitzpatrick: (Cavan): I am speaking sincerely. I am saying what I believe to be true and what I believe to be within the meaning of this section.
Mr. O'Malley: Is it an offence to denounce the building of office blocks?
Mr. T.J. Fitzpatrick: (Cavan): Surely the Minister will agree that such a speech or such an editorial might encourage people to go in and take possession of those premises? Surely some person who is charged with taking possession of a vacant house would say: “I got involved in this discussion on the inadequacy of the housing of the people. I read an editorial in a particular newspaper and I felt so strongly about it that I felt I must do something about it. The only thing I could do about it was go in with my wife and family and take possession of it.” This is a dangerous section as I see it. It is either a section that it is intended to implement and is positively dangerous or it is a section that it is not intended to implement and is therefore a sham and make-believe. That is what I would like to say about the section in general.
The Minister's action in agreeing to replace subsections (2) and (3) of the section seems to me to be another glaring example that this Bill as originally drafted was drafted with undue haste, without proper consideration and as a panic measure under the direction of the Minister and the Government. Subsections (2) and (3) are of course outrageous but no more outrageous than subsection (1) because that subsection is so general that it would involve everybody in the net. The Minister, however, has seen fit to delete subsections (2) and (3), thereby admitting that as originally drafted these subsections could not be justified. He proposes to replace these subsections, which he admits are objectionable, by subsections (2) and (3) in his amendment. Subsection (2) in the amendment states:
Where a statement in contravention of subsection (1) of this section is made by or on behalf of a group of persons, every person who is a  member of the group and who consented to the making of the statement shall be guilty of an offence under that subsection.
If that stood on its own as it is, it would impose on the prosecution the onus of proving that the person concerned had consented, and there might be something to be said for it. It would not be all that dangerous. However, subsection (3) in the loosest possible language seems to confer on the court the right to regard proof of the defendant's membership of the group, and of the making of the statement by or on behalf of the group, as proof of consent on the part of the defendant, “in the absence of any adequate explanation by him”. Those last few words are so loose as to mean anything and nothing at the same time.
In fairness to subsection (3) as originally drafted it was at least clear what it meant and knowing what it meant anybody could act accordingly, but subsection (3) seems to re-impose on the defendant the burden of proving his innocence. I am not over-impressed by the examples given by the Minister in regard to receiving stolen property, that if a person is found in possession of stolen property it clearly calls for an explanation as to where he got it, but the onus of proof there in the first place is on the State that the property was stolen and was stolen recently and was in the possession of somebody other than the owner. The owner would have to testify that the property found in the defendant's possession was his, that it had been stolen from him recently and that he did not give anybody permission to take it. There, of course, an explanation is called for. Obviously an explanation is also called for in the case of the gentleman who is walking around in the middle of the night carrying what are obviously house-breaking instruments. But what are we doing here? We are taking a housing society, probably a utility society, who feel that in a particular town housing is inadequate and they publish a statement in the newspaper saying that there are dozens of families living in dreadful hovels while at the same time the planning authority have issued planning  permission for the demolition of houses in such a street which could quite easily be converted into suitable dwellings for people who require them. That could be taken as encouraging and advocating offences under this Bill and every member of that utility society would be guilty of an offence which should not be an offence at all.
That is why I feel so strongly about this. Every member is going to be held guilty of an offence, or may be held guilty of an offence in the absence of any adequate explanation by him. That is unreasonable and is going much too far. This whole section is dangerous, unreasonable and unnecessary. It may be argued that the Minister's amendment is some improvement to subsections (2) and (3) as they stand but the whole section is so objectionable and so dangerous that whether or not it is amended I will oppose it.
Mr. Pattison: This section is most objectionable and is probably the most objectionable section in the Bill because it even widens the offences which have been instituted under sections 2 and 3. Again it makes the strong stronger and the weak weaker.
An Leas-Cheann Comhairle: The Deputy appreciates that we are on the amendment, No. 12, and not on the section?
Mr. Pattison: The Minister's amendment does not remove all the objections which we have to the section. If a person or a group of people campaign against a landlord who has a number of houses and will not let them at less than £10 a week and there are needy people in the area who are prepared to pay a fair rent for them, and if a campaign is launched against that landlord all those involved will be guilty of an offence because it is not necessary under this that the offence need be committed; all that is necessary is that the offence be encouraged or advocated. Neither is it clear whether a statement made after an offence has been committed is outside the scope of prosecution. Very often organisations make statements after an offence has been committed and in  those circumstances it would be difficult to argue, even though the statement would be in support of what was done, that it encouraged or advocated the commission of an offence which had already been committed. It is also difficult to prove that a statement issued before the commission of an offence did, in fact, encourage or advocate, or was a source of encouragement, to the commission of the offence.
The Minister's proposed amendment tends to weaken still further the weaker side contained in these provisions. These provisions all put the property-owner against the person without property. This amendment tends to weaken the person without property and to weaken any type of collective defence which he might wish to avail of. There is nothing in the amendment that places any obligation on the property-owner, who is in a strong position and who has houses to let, to make him feel that he has a duty to let those houses at a reasonable price. The property-owner is protected by this amendment. There are cases where building land may be available at a very high price. A site might be available at a high price but an organisation might advocate that it is unfair or unjust that this land should be sold at a very exorbitant price and that something should be done about it.
It might also be said that the land should be available at a reasonable price for housing. Something might be done about it under section 2. Would such an organisation, with the best of intentions, be liable for prosecution under this amendment? We must also mention the case where someone might say: “I think that that field should be made available for itinerants” and the next day an itinerant camp might move in. Is it fair to an individual or a group of people who would make such a statement that they should be made criminally responsible for it?
Mr. Cooney: The section is altogether obnoxious. I regret that the Minister's amendment does not render it less so. The Minister stated that there was nothing novel about the proposition contained in this section. I disagree  with that. In support of his argument the Minister mentioned the various ways in which a person might be charged with the offence of inciting or might be looked on as one who aided or abetted, or might be charged with being an accessory in the first degree, as being analogous situations to what is proposed in this section. The essential difference between the situations relied on by the Minister in this section is that in the situations mentioned by the Minister all the persons involved would be active participants in the commission of a crime by some positive, overt act. It is a crime to witness a felony without taking any steps to apprehend the guilty party. To that extent standing there and doing nothing is an offence. In the commission of a crime in all those cases there is some positive, physical action performed in order to commit the crime. Consequently, those situations can be distinguished clearly from this section which makes a person guilty who is present in a group on whose behalf a statement is made. This is a novel proposition. It introduces a doctrine which is completely novel, a completely wrong doctrine of vicarious criminal responsibility. It took many years of judicial distillation before the doctrine of vicarious criminal liability was admitted fully in the law of tort. This section is outrageous. The Minister is conscious of how drastic it is, and has taken notice of the protests and has endeavoured to meet those protests by introducing this amendment. The idea of the amendment is to ensure that persons who are members of a club would not be convicted of an offence except after very careful investigation.
In his statement on the Second Reading the Minister pointed out that whether a statement was made on behalf of a group is a question of fact which would have to be proved by the prosecution. The Minister said that it might be unfair to individual members of a group to allow them no line of retreat where a spokesman for the group had perhaps said more than some members would wish. The Minister then referred to the original subsection as drafted and to the provision in it which gave a member of a group  power to dissociate himself from the contents of a statement and thereby absolve himself from any guilt. That was giving a positive escape to a member of a group. That has probably unwittingly been removed in the drafting of the amendment, which has been drafted with the purpose of improving the position of members of a group. Such a person is now presented by the Minister with a subsection which makes it an offence for a person who is a member of a group who consents to the making of the statement and who would be held as consenting to it in the absence of any adequate explanation by him. As Deputy Fitzpatrick has pointed out, the words are: “any adequate explanation”. This is terribly loose law. Above all, the criminal law should be exact and it should be possible for citizens to know on reading an Act of Parliament how a crime can be committed and whether a person is guilty of a criminal offence. In reading this subsection a person could say that he would not know if he had committed a criminal offence until after he had given an explanation to a district justice and got his decision on it. A district justice may or may not decide that the explanation is adequate. These district justices are human and are of varying intellects and temperaments. There could be variable interpretations as to what constituted an adequate explanation made by a person accused under this section. It is wrong that a criminal offence should be drafted in a manner where a person going before a court is left at the mercy of what has been termed “the inarticulate major premise” of the presiding judicial person. If a district justice's indigestion is active it could affect him and how he might look at an explanation offered by an accused person. If such a man has financial difficulties or if there is something else upsetting him, or if his inarticulate major premise was working to the detriment of the accused the explanation might not be deemed to be adequate. If the accused was fortunate enough to be tried in the next court where there was a magistrate or district justice in a happier frame of mind his explanation might be regarded as adequate. When that situation can arise  the law is bad because it is uncertain and is not objective. Above all, the criminal law should be objective and a person should be able to say from reading an Act of Parliament whether he has committed an offence.
In his opening remarks on this section the Minister stated that to commit an offence a person had to consent to the making of a statement and I think the Minister also said the person must be aware that it was made. There could exist a situation where a person could consent without being aware that it was made if his explanation to the justice subsequently was not accepted. If the justice thought a person was careless in attending a meeting at which some proposition offending against this Bill was put forward, if perhaps he voted for the proposition without being aware of what it meant, that person could be guilty of an offence.
I cannot agree with the Minister in his distinction between the burden of evidential proof and the burden of proof so as to secure conviction. In this case what is being done is not putting up a prima facie case to the defendant but shifting to the defendant the onus of proving that he did not consent to the making of the statement by, or on behalf of, the group. In practice I can see tremendous difficulty in the way of prosecuting a person for an offence under this section and giving the court facts to enable it, if it is reasonable to do so, to regard the defendant's membership of the group as proof of consent.
What facts can the court require in order to think it reasonable to decide that membership of a group means consent? This is totalitarian law at its worst. The court will have to know what went on at the meeting, the temper of the meeting, it will want to have evidence of the interjections and to know the method in which the speeches were presented to the meeting. It would need all this information before it could make any decision as to whether it would be reasonable to regard proof of the defendant's membership of the group as being the fact on which it could find him guilty or demand an  explanation from him. One can assume that the evidence coming to the court regarding these matters will come from a person who was in the group on behalf of the prosecution; perhaps a member of the Garda on duty at a public meeting, or a person who has infiltrated a private meeting of the group. In either event the evidence of that person cannot be the dispassionate and unbiased kind which the court should need before coming to the conclusion whether it is reasonable to regard membership as meaning consent.
The section has no redeeming features whatever and the efforts of the Minister to improve it have actually disimproved it. As it was originally drafted, a person who thought he was getting into hot water could go to the Garda station or to the Minister and say that he dissociated himself from the group. He cannot do that now; he has to come to court, listen to evidence of the group activities in which he participated, and the court may disapprove of the group and decide that they do not want to hear any explanation from the person because of his association with the group. On the other hand, if the court decide that the group are not such a bad crowd and listen to the person's explanation, the court may dismiss the case against the person if his explanation is regarded as reasonable.
In common law a man is not guilty until he is proved guilty and no one is guilty except in respect of an act he commits himself, apart from some very carefully defined exceptions. The Minister has been trained in the common law and I cannot see how he can ask us to accept this section and, in particular, this amendment.
Dr. Browne: I share Deputy Cooney's view that the Minister was impressed by the protests raised about this section. I can only assume that the amendment is so loosely framed to permit so much difference of opinion and justifiable conflict of opinion in the interpretation of the new amended section as to make it impossible to get a conviction under the section. That is all very well were it not for the fact that  the citizen must go to the court and suffer the whole process of the courts with the possible human, unpredictable reactions of the district justice and the likelihood if dissatisfied with his verdict of proceeding through the courts at enormous expense and great worry.
I do not think the amendment does anything to remove the charge we made that this still leaves the unwholesome implication of guilt by association. There are two broad examples—the individual in a political party and the individual in a group activity. To take the easiest of them—the individual in a political party, complete with constitution and rules—it appears there is much scope for variation of interpretation of responsibility arising out of membership of a political party, subject to a reasonable rigid constitution and rules.
There has been always the right to have various sectors within a party, usually conflicting sectors, and this is an essential integral part of the democratic process of debate. There has been always the right to hold a particular opinion or synthesis and the evolution of new attitudes; but there has also been the right to differ, that absence of absolute rigidity which the Minister has said frequently he dislikes so much in the totalitarian type of society. In this amended section we are introducing to the party system a necessity for rigidity, the like of which has never existed before. Its effect must be to increase the stress within parties to such an extent as would ensure conformity with a particular party line on every issue so as to negative the value of the effect of the whole process of the evolution of new attitudes towards different problems as they arise from time to time.
A district justice is faced with the interpretation of the constitutional rules of a political party and the responsibility of an individual under these rules. We sometimes see the line: “To the extent to which the court thinks it reasonable to do so.” It may regard proof of the defendant's membership of the group and of the making of the statement by or on behalf of the group as proof of consent on the part of the defendant in the absence of any  adequate explanation by him. This still leaves the charge made earlier by a number of speakers that the adequate explanation by the defendant leads to a continual process of individual disclaimers of decisions taken from time to time by individual members of parties on issues on which they have very strong views. This has been accepted during the years by all parties here in varying degrees. The Minister has cited his various precedents for the guilt by association process or conspiracy in a crime. In his attempt to relate this particular offence —if one concedes that it is an offence at all, which I do not—to other offences, it seems that the Minister is flying in the face of an accepted behaviour pattern that has a very long record in our history. I do not think that one can relate what this Bill is concerned with—a form of social protest—to crime such as murder, rape or bank robbery or any acts that may be committed by very distorted personalities.
The whole subject that is covered in this Bill and which is relative to this section is this idea that in a non-revolutionary situation, where there is no intention of overthrowing the State, there are a number of acts committed by individuals that are considered at any particular time in society to be at variance with the best interests of the majority of the people but which are short of the complete overthrow of society as they see it: for instance, the use of the strike weapon, the great land agitation that has gone on here for centuries or the boycott process, all of which may be uncomfortable for society but which are healthy ways of letting off steam, as it were, by people who have strong feelings about a particular issue and who decide that one of these methods is a legitimate means of indicating their opposition to a particular decision. The Minister must accept that there is this difference between the two types of crime, the crime of conspiracy such as the one I mentioned and a conspiracy of this kind. If we take the other kind it will be very difficult to prove a case against an individual in respect of a political party. It is possible that the Minister has that in mind.
 The other type of group is the more common one that we are considering here—the group who put up a resistance to injustices in society—for instance, the injustice of no housing. Take, for example, the group who agitated in Hume Street and with whom Deputy FitzGerald and I were involved. This group was made up of an extraordinary gathering of the different elements in our society. Their purpose was to preserve a particular piece of Dublin architecture. In this they succeeded to some extent so, obviously, we were not wrong in what we were doing. In that group were trade unionists, housewives, clergymen, newspaper editors, students and people from all walks of life who came and listened to what we had to say. To what extent would the people who supported that particular movement at their various meetings, both inside and outside the building, have been guilty under this section? Who would the Minister have set about convicting? Would they be the speakers, the squatters and, as Deputy Cooney says, how does he set about proving what everybody said was exactly the same as what everybody else said and that there was no qualification of any incitement to squat, or stay there or take over possession? Knowing the difficulties of collecting evidence that will stand up in court, how is this to be done? I do not think that the precedents mentioned by the Minister of a group of different political parties combining to state a particular point of view as, indeed, this Hume Street group represented all the political parties and most of the trade unions are helpful. How does he think he could enforce such a piece of legislation if he believes that it should be enforced at all in this particular set of circumstances? The main function of a protest of this kind was to achieve a social end and for that reason what the Minister is attempting to do under this section is particularly retrograde, particularly dishonourable——
Mr. Desmond: Worse than that, would the Deputy not agree that it is Fascism?
Dr. Browne: It is particularly shameful because where a great social  evil exists in our society the Minister is attempting to legislate so that, if I may use a Christian exhortation, a man may pass by on the other side when he sees some great evil. What the Minister is trying to do now is to put into law a provision which will ensure that those who are well off in our society shall pass by on the other side and leave those whom they see suffering and in need to try to care for themselves as best they can.
Mr. O'Malley: First, I want to deal with the point made by Deputy Cooney in his objection to the wording of subsection (3) as it would be if my amendment were accepted. He objects to some extent to the content of it but his main objection, which he stressed at some length, was to the method of expression used in it and the fact that a court would have to decide whether or not a person was, in fact, a member of an organisation and whether he had consented to the making of a statement on behalf of that organisation. He took particular exception to the court being brought into it. The court was brought into it, as it were, by me in putting down this amendment in an effort to have the matters decided by the court rather than, as it was alleged—I do not necessarily accept this—by the prosecution. The wording of subsection (3) is taken in its general outline—the precise words cannot be the same— from section 22 of the Criminal Justice Bill, 1967. Section 22 of that Bill re-appeared in this House some time later together with another section, section 23, as section 3 of a Private Members' Bill promoted by Deputy Cosgrave and Deputy Fitzpatrick (Cavan). Deputy Cosgrave referred to this particular subsection—subsection (5) of section 22—at column 1633 of volume 244 of the Official Report of 25th February, 1970. He read out subsection (5) as it was of that Bill and spoke afterwards in laudatory terms of the contents of the subsection. In effect, the contents of the subsection, the way it is drafted, the effect of it and what the court has to decide under it are precisely the same as in subsection (3) of my amendment.
I find it very hard to discover how  Deputy Cooney could give his support to those legal concepts when they are contained in a Bill promoted by two of his own colleagues while he finds the very same legal concepts—I am speaking of concepts now rather than contents of either Bill—as abhorrent as he apparently does today when precisely the same method of expression and drafting is used in my amendment. It seems to me that it is really a case of the thing being perfectly all right but because the Minister has proposed the amendment we must say it is abhorrent. Fascist, imperialistic and all the other usual things that are said, not just about me but about anybody who has held the office of Minister for Justice in recent years.
My amendment consists of a redrafting, and a recasting, shall I say, of the original subsections (2) and (3) and there is no doubt whatever in the mind of anybody reading my amendment and comparing it with the original subsections (2) and (3) that it ameliorates the position from the point of view of a defendant or potential defendant very considerably. I did not expect to be thanked for having done that but even with my declining faith in human nature——
Mr. Desmond: The Minister is much too young for that.
Mr. O'Malley: ——in the nature of those across the way, I did not expect to be actually criticised today for having, even on their own admission, made the position better from the point of view of a defendant or potential defendant. They told me I should have left it alone; I should not have attempted to amend it at all. I should have left the defendant in the worse position.
This brings me to the position of a defendant or potential defendant under this section either as amended or not —that does not matter for the purpose of this argument. He is in a considerably stronger position than he would be at common law, for example. Deputies may well ask, if he is in a worse position at common law in view of the additional defences and safeguards  here in this section, why bring in the section at all? I have already pointed out not alone in relation to this but in relation to several other sections that I am bringing it in in order that we will have a modern statute which will set out clearly in terms which cannot confuse anybody what precisely the position is and what can or cannot be done. In other words the rights of a person are clearly defined and he is put on clear notice that if he infringes certain things he is guilty of an offence. The existing common law position is, in fact, stronger from the prosecution point of view but while spelling out the thing for potential defendants in this section I am also giving them defences or potential defences, if they want to avail of them, which are not open to them under the existing law. It is not a case of one general type of offence at existing common law. There are three separate but parallel types of general offence. There is (1) incitement; (2) aiding and abetting, and (3) counselling or procuring.
In addition there are as I have already said the specific statutory instances such as section 22 of the Petty Sessions (Ireland) Act of 1851 and sections 1 and 2 of the Accessories and Abetters Act of 1861. All that is part of our law. There are five major headings under which the sort of law contained in section 4 of the Bill is already part of our general law. It has been that way for centuries and in specific statutes it has been spelt out very specifically for well over a century. Yet there are still Deputies who tell the House and the public that the Minister for Justice is creating some new departure and is bringing in some form of law which has never been heard of or known of before in this country. In fact what the Minister for Justice is doing in this section is reiterating the existing law of this land as it has been for centuries, but he is doing it——
Mr. Desmond: That is a progressive Bill.
Mr. O'Malley: ——in a way that allows defendants or potential defendants a much stronger line of defence  and a much more adequate way of extricating themselves from any sort of situation in which colleagues of theirs might have involved them.
There is the horrified suggestion that newspapers, for example, might well find themselves in difficulty with the law under this section if they were to advocate the commission of a criminal offence. There is the implication in this horrified suggestion that this is something new, but it most certainly is not new. Newspapers are not any more immune from the law of the land than any other individual or company——
Dr. FitzGerald: Here comes the threat.
Mr. O'Malley: ——in the country and if a newspaper at the present moment sees fit to write editorials or articles advocating crime of one form or another——
Mr. T.J. Fitzpatrick: (Cavan): About lack of housing.
Mr. O'Malley: ——they are guilty of an offence. They can be guilty of incitement or of participating in crime as principals in the second degree or accessories before the fact, as the case may be. Here we have precisely the same thing but with far greater safeguards and far greater defences to a defendant or a potential defendant but we are told it is something completely new and something which was never known in the law of either this or any other country before. This is, of course, grossly untrue. I am afraid it is often felt by Deputies and outside commentators that if they say these sort of things and repeat them often enough and get them reported or printed often enough people will, by dint of sheer repetition, believe them. As a result of this people will think there is something radically new and radically wrong in this Bill. That is not the position. I can only say it in my own weak way, with my own weak voice in this House and hope that those Deputies and members of the public who are prepared to look at things honestly and objectively will in fact examine the Bill honestly and objectively. If they  do that they will find what I have said is true and that this has been the situation for many years.
The particular purpose of these two subsections and this section in general, to which I have moved this amendment, is not to get at anybody who might be put into a dwellinghouse or other similar premises for the purpose of squatting there, because as often as not those people may well be in a bad way. I have no desire to make life any more difficult for them than it is. The purpose of these amendments and this section is to get at the real villains of the piece, who, as I have said both inside and outside this House before, organise this sort of thing but very cutely and very deliberately keep in the background as is in accordance with the normal practice of persons of this kind. I am therefore attempting in this amendment and in this section to deal with people who try to remain in the background and try to force on less well known and perhaps less fortunate people than themselves to break the law. I am endeavouring to ensure that the law will deal with those people in the background rather than with the unfortunate individuals who are bearing the brunt in the front line. I feel I cannot do this without section 4 and that is the reason why section 4 is there and why I have put these amendments down. I think they are eminently reasonable and I think anybody must accept that, not alone do they not exceed the existing law—that has been proved beyond doubt—but they do not even go as far as the existing law. In effect, they are a contraction of the existing law, but they spell the matter out clearly in black and white so that nobody who wishes to encourage or advocate offences under this Bill need be in any doubt whatsoever as to whether or not he is committing an offence.
Dr. FitzGerald: Despite what the Minister says this is an intimidatory Bill. This section is intimidatory and the Minister's amendment increases the element of intimidation. It does so because it increases the uncertainty in the minds of those it is intended to intimidate. Under the section, as  originally drafted, a person who was a member of a group which was alleged to have encouraged an offence under this Bill could, if he so wished, dissociate himself——
Mr. O'Malley: The Deputy complained about that.
Dr. FitzGerald: Let me make my speech. The onus of proof is now shifted on to him. Under the section as originally drafted he could exonerate himself. Now, if he is a member of a group and other members encourage an offence under this Bill, he may be brought before the court; he cannot exonerate himself in advance by dissociating himself. Members of social or cultural groups are timorous people, not involved in public affairs and not used to the hurlyburly of political life; when matters of this kind come up concerned with housing or the preservation of our historical heritage they will now be encouraged to suggest that statements should not be made or that they should be watered down. They will be put in fear and jeopardy and will accordingly endeavour to influence the policy of these organisations away from anything that could be interpreted under any circumstances as involving an offence under this Bill.
Progress reported; Committee to sit again.
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