Friday, 30 July 1971
Dáil Eireann Debate
In page 3, line 35, after “offence” where it secondly appears to add “provided always and it is hereby declared that reasonable comment on a matter of public interest in any newspaper, magazine, periodical or book shall not constitute an offence under this subsection”.
The Taoiseach: Before the resumption of the debate on the Bill I should like to say something. The Government have decided to allow two further days to this Bill. This is considered more than adequate time to dispose of the remaining amendments, completing the Fourth Stage, and then the disposing of the Fifth Stage. The present amendments under discussion, amendments Nos. 9 and 10, deal with the position of the Press; this matter has been extensively debated over a number of days. The remaining five amendments are confined to penalties. It is now a matter for the Opposition as to whether they decide to keep debating these amendments for the whole of this period and then have the remaining questions put without debate under the proposed  allocation of time motion on Wednesday, or to space out these two days so as to give a reasonable time on the amendments on this Fourth Stage and a suitable period for a final debate on the Fifth Stage. The allocation of time motion will be moved on Wednesday for application on Wednesday night unless the Opposition parties wish to come to an agreement on an alternative arrangement.
The Taoiseach: This may be discussed with the Whips but the Government have decided to put down a motion, as we are entitled to do, without notice to the Opposition. Now I am giving the Opposition advance notice of our intention to put down that motion. I suggest I am not in any way infringing the rules of order by doing this courtesy to the Opposition.
Mr. Cluskey: The closure motion yesterday was the first indication we had that the Government intended to steamroll this Bill through the House. Would the Taoiseach, even at this stage, not reconsider the position and realise the serious damage that will be done to this Parliament if Fianna Fáil proceed in their attitude of steamrolling this Bill through the House without allowing adequate discussion on the Bill? We realise this Bill is controversial. We realise——
Mr. Cluskey: The Taoiseach has, without any prior consultation, announced that he intends to stop discussion on this Bill after two days, discussion on the most controversial Bill that has come before this House for quite some time, a Bill which infringes the rights of the ordinary people of this State, a Bill which puts us on a par with the puppet Government in Stormont.
Mr. T.J. Fitzpatrick: (Cavan): On the Order of Business, the Taoiseach has, in fact, announced or intimated that he proposes to introduce the guillotine. He has also referred to the two amendments before the House, the only amendments specifically dealing with the exclusion of editorial comment in the newspapers from the provisions of section 4. The discussion on these amendments has only just begun and it is not, therefore, correct to say that they have been adequately discussed. I suggest to the Taoiseach that adequate time be given for the discussion of these two amendments. I concede that the other amendments should not take much time and that there  should be reasonable time for discussion on the Fifth Stage.
The Taoiseach: I have announced our intention to introduce a time motion as we are perfectly entitled to do. I suggest it is a matter now for the Opposition, not to argue it here across the House but to argue it with the Whips as to which course they would prefer, to come to an arrangement by agreement or to debate this motion on Wednesday evening.
Mr. Desmond: I have not yet either moved or spoken on amendment No. 10 in my name. I am entitled to suggest to the Taoiseach, on the Order of Business, that he should no longer disgrace himself and his party——
Mr. Cluskey: We were elected to speak here and we shall definitely oppose any Bill like this which infringes on the rights of the ordinary citizen and interferes with the Press. We shall continue to oppose this Bill.
Mr. Cluskey: We have discussed ten amendments and it has taken a number of weeks to do so. Now we are told that not only the five remaining  amendments but all Stages must be taken in one and a half days. This House does not sit until 3 o'clock on Wednesday. No consideration is being given to the rights of the Opposition.
Mr. Cluskey: It would not worry me whether you do or not, because so far as I am concerned, I am paired, and the Labour Party will not lose a vote. They will not forfeit their rights to give legitimate opposition to this Government and we will not be steamrolled.
Dr. O'Connell: We see here today this fascist Government now trying to deprive us of our freedom. Then we find newspapers saying: “We will leave it to the courts.” This incident this morning is typical of a fascist Government, of what we saw of Hitler in his early days when he wanted to stifle opposition. We see the Fianna Fáil fascist Government in action today on the same lines.
Dr. O'Connell: I am coming to it. I do not see why the Ceann Comhairle should tell me that he was going to call somebody else. I think he has no right to do that and should not have done it because I offered every time. I am a bit fed up taking dictation from the Chair. A Cheann Comhairle, I think you are carrying on too much and I certainly do not like it. I am going to exercise my rights in this House and you are not going to stop me. You are here to keep order and that you are not doing. You are taking instructions from those people and the sooner you tell them that you are an independent chairman the better.
Dr. O'Connell: I think I should read the editorial in this morning's Irish Times for the benefit of those who do not seem to care about democracy, freedom of the Press or about public opinion. I may be wasting my time on the deaf ears of the Fianna Fáil Party but at least I may appeal to someone who has a sense of justice. The heading is: “While the North Burns” and it states:
If the Fianna Fáil Government was as concerned for the national interest and for national dignity as it is with personal prestige, it would long ago have ended the affront of the present Dáil debate over section 4 of the disputed Act—and in the proper manner.
There has been some bullfrogging from Opposition benches, but there is a genuine weight of opinion which it would be prudent for the Government to notice. To give way in the face of so much concern is not weakness; it is the hallmark of stature and maturity. Not to do so is petty and unworthy.
The Government may not yet see it, but its attitude is damaging also on an international scale. For while the debate is being carried on in Dublin and in an atmosphere of pure machine politics, the Taoiseach and Dr. Hillery are attempting to show sweetness and reason vis-à-vis Britain. Conciliation is a word that has been much on the Taoiseach's tongue recently; that, and reason and reconciliation and harmony between Irishmen. How do Mr. O'Malley's volleys read in that context?
And, of course, on special occasions we have from the Taoiseach and other Ministers honeyed words about their reverence for great separatist figures of the past. If the Government speech-writers understand what these men were at, it is clear that their masters do not. It  would make salutary reading for the Taoiseach if he were to peruse some of the files of The Nation and compare the words of the Young Irelanders with the present intentions of his own Government. Duffy, Davis, Mitchel and the others had things to say about Dublin Castle which apply neatly to Fianna Fáil in 1971.
Dr. O'Connell: You understood, but you do not know yet. You are presuming that. I am reading out parts which are very relevant to this debate and this amendment, and I hope you will not let this be suppressed.
Lord Denning, giving judgment quite recently, described the right to fair comment as one of the essential elements of freedom of speech, “We must ever maintain this right intact,” he said. “It must not be whittled down by legal refinements.” Mr. O'Malley's new offence of “encouraging and advocating” is  just this: a legal refinement aimed at curbing comment.
If it casts shame on Fianna Fáil, that is one thing; if it brings shame on the whole of the Republic, that is a matter of concern to everyone. It touches all who read a newspaper, a pamphlet or a book, all who listen to radio or view television and, of course, those who publish the same.
Ministers privately explain that they are personally not keen on the Bill and that these offensive sections are aimed solely at small groups and small publications. All the more shame. The newspapers and other media can take on the Government —and they will have public opinion behind them.
I would have thought that an editorial as forceful and as straightforward as that would have brought the Taoiseach to his senses; if not, the Minister for Justice and the other Ministers. I would have thought that the Taoiseach of this country would have some shame in him, some sense of honour, some sense of dignity, and appreciate the fact that what he is doing now is steamrolling a Bill through this House which is certainly not looked for by the people, which the newspapers, who express public opinion, say is not needed and is one of the first steps on the road to totalitarianism. The Taoiseach has turned a deaf ear and a blind eye to public opinion and expression in the Press. If the Fianna Fáil Government are sincere about the freedom of the Press, if they really mean that the Press is not to be stifled, they should accept this amendment. The Minister for Justice, Deputy O'Malley, says that the Bill is not in any way directed at the Press. The biggest challenge to him and to the Taoiseach and the Government is the challenge of this amendment. If he accepts this amendment we may believe him. If the Government refuse to accept it, it should become obvious that they are determined to fetter and stifle the Press. The amendment is a very simple one. It says:
 ...provided always and it is hereby declared that reasonable comment on a matter of public interest in any newspaper, magazine, periodical or book shall not constitute an offence under this subsection.
I do not think it is unreasonable to ask that. It guarantees the freedom of the Press in Ireland. All that is asked for is reasonable comment. If the Minister refuses that, then I and most sensible and rational people in this country can only assume he is determined to put an end to this freedom.
If there is a sit-in by a group who feel strongly on an issue of public interest—and I might be one of the group—and if the Press in editorials or any other articles make relevant comment on it and, perhaps, support it in any way by inference or otherwise, they will find themselves in trouble. It would seem that if there is a housing problem—and it is obvious that the housing situation will become worse because building progress, far from keeping pace with demands, has slowed down—in this city and people are tempted to squat in deserted barracks and if a paper says that that might be a good idea and that they should continue to live there and that the barracks should be handed over to them, after the passing of this Bill they will find themselves in trouble. In asking for this amendment to be accepted we are guaranteeing to newspapers the right to comment. We have all sorts of commentators, with some of whom I do not agree. We have commentators who pontificate and who feel they are infallible and that the Taoiseach, the Government and the Opposition must be guided by what they say. These people are not to be taken seriously. As is said “paper never refuses ink”. There are serious writers and newspapers who recognise their responsibilities and who watch matters of public interest carefully. They comment from time to time and may, at times, criticise the Government for their inactivity in matters of social importance and concern. Such newspapers have at times stirred up public opinion on matters of social importance or social injustice. These newspapers  should be allowed to continue to comment. They must not be deprived of such right.
The Labour Party have been charged on the stand they took against the Springboks. A similar stand is being taken against them in Australia. The South African team have been barred from participating in the Olympics because it is felt that by such stand the managers of the Olympics are preventing the totalitarian regime in South Africa from receiving recognition abroad. This was not just a stand taken here by the Labour Party. Our party did not coerce anymore or force anyone to take any particular action. They merely suggested action. I support such action all the way when we see what is happening in South Africa where the totalitarian regime operates and terrorism exists. We should all feel obliged to speak out in no uncertain terms against such a regime and to show by our actions that we do not condone the actions in South Africa. Our action was fully justified. People were horrified at what was happening in South Africa and at what is continuing to happen there. People should demonstrate against such a regime because what is happening in South Africa to the blacks is what happened in Germany and Europe to many people just before Hitler's time. The Labour Party are proud of the action taken. We did not dictate to the Press. We asked journalists as members of a trade union to object strongly to the Springboks and not to report on the match. Our action was appreciated and understood by people who knew the conditions under which the coloured people are living in South Africa.
Dr. Cruise-O'Brien: On a point of order, are interruptions to be suppressed if they come from one side of the House and not from the other? They are not being suppressed impartially and the Ceann Comhairle is not acting as an impartial Ceann Comhairle during the debate on this Bill. The Ceann Comhairle is not impartial.
Dr. O'Connell: I am coming to the amendment. I am talking about reasonable comment and about the vicious attacks made on the Labour Party because they spoke to the Press and suggested that they might show their revulsion at the regime in South Africa by not reporting the match in Dublin. There was nothing abnormal about that.
Dr. O'Connell: I have here a book entitled The Freedom of the Press in Ireland, 1784-1841. One part of the book, which is relevant today, deals with the resolution of the Irish House of Commons, which was made on 5th April, 1784. It states:
We can like that to what is happening today. If a paper writes an editorial about the housing situation in Dublin this is the type of action which would be taken by the Irish Houses of Parliament now unless this amendment is accepted by the Government. I shall continue the quotation:
This was followed with an order that the editor of the journal be taken into custody. They arrested the printer and a Bill to prevent abuses of the Press was brought in. This was the first serious clash between Press and Government in Ireland. It should be remembered that we were oppressed at that time. The same thing is happening  today. The Government are steamrolling this Bill through. The Taoiseach made an attempt this morning to force this through at all costs without regard for public opinion. I would have thought the Taoiseach would listen to public opinion on the matter. We are asking that reasonable comment be permitted and it is not an unreasonable request to ask the Government to accept this amendment which guarantees that the Press will not be stifled or harrassed in any way from commenting in a reasonable way on matters of urgent importance and matters in the public interest.
Dr. O'Connell: This is an attempt to put an end to the circulation of the United Irishman in Ireland. If this Bill becomes law the United Irishman will cease to appear as an newspaper of independent opinion which has condemned and criticised the Government on many matters. We talk about an oppressed State in the north and we talk about a police State in the north but the United Irishman is permitted to circulate in the North of Ireland. I do not see any attempts being made by either the Stormont Government or the Westminster Government to prevent the circulation of that paper in the north. If the Jehovah's Witnesses publish a paper I feel they should be entitled to do so and no attempt should be made to muzzle them. In a democracy people should be entitled to express their opinion and write about matters of public importance and public interest.
If this amendment were accepted it would prove to the Press that the Government have no intention of  stifling them. The same would go for magazines. The Government were recently criticised in a magazine article by Dick Grogan on Dundrum. He showed how a person who was not committed properly was being detained against his will in Dundrum. As a result of this investigation and exposé in this magazine justice was seen to be done. I would feel justice could continue to be seen to be done if newspapers and magazines were permitted to print such matters. If the Government intend to oppose this amendment I can only feel that they are determined to stifle the Press and consequently be a fascist Government of a fascist State.
Dr. FitzGerald: The purpose of this amendment is to permit reasonable Press comment. If it is not adopted editorials or speeches which while not advocating or inciting anyone to commit offences under the Bill but have the effect in practice of encouraging people who are committing such offences or encouraging them to do so this would be committing crimes involving penalties up to three years for those responsible, whether verbally or in print, for the statements concerned.
Had the previous amendment been accepted this would not have been the case. Had the previous amendment been accepted it would have been necessary to prove in court that a newspaper actually advocated the commission of a crime before that newspaper could be prosecuted with success. We are in the difficulty, however, that with the rejection of that amendment any Press comment which has the effect, whatever the intention, of offering encouragement and can be shown so to do brings its author within the ambit of this Bill and makes him liable to a penalty of up to three years imprisonment.
As the last amendment was rejected it is necessary to press this amendment and to try to persuade the Minister, who has not shown himself so far open to much persuasion, to accept this amendment in order to make it possible for reasonable Press comment. The amendment is so moderate in content that for the Minister to reject it would make it impossible for any person  of good faith to hold that he did not wish in this Bill to get at reasonable Press comment. That is all this amendment seeks to exempt. To oppose this amendment or reject it can therefore only mean that the Minister is anxious not merely to tackle any newspaper which advocates the commission of an offence, but he is anxious to be able to send to jail the editor of any newspaper which comments reasonably on issues of public concern if these reasonable comments can be shown to have had the practical effect of encouraging someone to commit an offence under the Act or to continue to commit an offence under the Act.
The Minister, who has not, either by his presence or vocally, contributed very much to this debate, will have great difficulty if he does not accept the amendment, in convincing this House, should he attempt to do so, that he is not seeking to get at reasonable Press comment. The difficulty we are in in respect of this part of the Bill arises from the peculiar ambiguity of the word “encourage”. It is a word that is used in several different senses. Deputy Cruise-O'Brien in a long and very erudite contribution tried to point this out but perhaps because of the extent of his references, the key point may not have emerged clearly to the House as to the significance of this word.
Dr. FitzGerald: In order to show why it is necessary to permit reasonable Press comment I must show the consequences of failing to do so, because if we fail to permit reasonable Press comment, because of the fact that the last amendment was rejected, any comment which, though reasonable in itself, and so adjudged by the court but which has the effect, unintended by its author, of offering an encouragement to people to engage in the commission of an offence will make the author of that comment which was made in good faith, reasonably,  and without the intention of encouraging crime, liable to three years imprisonment. It is necessary for me to establish my point to explain clearly the significance of this word.
An Ceann Comhairle: Order. Would Deputy Carter please allow discussion on the amendment to continue. I cannot allow any further discussion on the word “encourage” which has been debated on a previous amendment.
Mr. T.J. Fitzpatrick: (Cavan): On a point of order, for the purpose of clarifying the position, surely now that the word “encourage” remains in the subsection, it is highly relevant that a Deputy should be able to point out that because that word is there, it is necessary that the protection enshrined in this amendment should be included in section 4 for the protection of the Press.
Dr. FitzGerald: I do not intend speaking at great length and I shall speak entirely revelantly to the amendment but it is not possible to do this without referring to the words surrounding the amendment in the same sentence. I have never yet heard of a discussion being truncated in this way.
Dr. FitzGerald: If at any stage during my speech, the Chair hears me advocate, encourage or purport in any way that the word “encourage” should be deleted, the Chair may rule me out of order. What I am dealing with is the effect of not implementing the amendment that is before the House and the effect that will have on the meaning of this section. I can only make the case for this amendment by pointing out that it is necessary because of the word “encourage”. If the word “encourage” were not there, it could easily be held—and I would have some sympathy with the contention—that a newspaper could not, in reasonable Press comment, advocate the commission of an offence because it could be held by a court, and held fairly, that to advocate the commission of an offence would be, of its nature, unreasonable Press comment. I cannot prove that contention without having regard to the meaning of the word “encourage”. The whole crucial  element here is that the word has two different senses. It has an active or positive sense in which somebody is incited or advocated to do something. By encouraging a person to do something, one is trying actively to get him to do that. That is one meaning, but, unfortunately, there is another meaning.
Mr. T.J. Fitzpatrick: (Cavan): On a point of order, the amendment is designed to protect people from the word “encourage” and other words and unless that case can be made we might as well all go home and leave it to yourself and Deputy Geoghegan.
Dr. FitzGerald: I have made it clear that if at any stage I should propose the deletion of the word “encourage” I should be ruled out of order, but as long as I am talking about why the amendment is necessary because of the presence of the word “encourage”, I am entirely in order. I do not propose to be out of order at any time during my speech. If I might say so, I have a reasonable record of relevancy and I do not intend to wander wide of the subject in any debate in which I am participating.
 The fact that there are entirely two different senses to the word “encourage” is what creates the problem. The reason why there can be reasonable Press comment is because the reasonable Press comment which has the effect of encouraging the commission of a crime could be held or would be held by any court in the ordinary meaning of the word to have that effect and thereby to bring it within the ambit of the Bill. It is only because of the Minister's failure to accept the previous amendment that we must discuss this at some length. I would not have detained the House on this amendment for any length of time if the other amendment had been accepted.
Had the Bill been drafted in such a way that it would not have included the word “encourage” or if the Minister had accepted amendment No. 7, the position we would then be in is that it would be very difficult to suggest that reasonable comment could be such as to advocate the commission of an offence. In the dictionary of synonyms the word “advocate” has the following meaning: “to plead in favour of, to defend by argument, to support or to vindicate or recommend publicly”. It seems to me that all those meanings are ones which involve criminal responsibility if the act advocated is in fact a criminal act. All of them involve an intention to promote a criminal act. Had the word “advocate” and that alone been used we would be in the position here where it would be difficult to argue that there could be reasonable Press comment that would advocate a criminal offence. Similarly, had the word “incite” been used, the position would be much the same because in the same dictionary the meanings given to “incite” are: “to move to action, to stir up, to rouse, to spur or urge on, to excite, to stimulate, to instigate, to spur, to goad, to arouse, to move, to urge, to rouse, to provoke, to encourage, to prompt or to animate”. It is clear from these synonyms that what is intended here is to achieve the result of getting somebody to do something. These are all verbs of action. They involve somebody taking a course of action which is designed to get somebody else to do something. This  involves a sharing in the responsibility for the criminal act and as such is already a crime. Had the word “incite” been used there would not, I think, have been any issue here. The trouble is that the word “encourage” has different meanings and it is these different meanings that make it necessary for us to put down this amendment.
Mr. T.J. Fitzpatrick: (Cavan): On a point of order—I rose on a point of order when the Ceann Comhairle was in the Chair—I respectfully agree with the Chair that it would be very wrong to go back on amendment No. 8 which was discussed at some length yesterday. Amendment No. 9 which we are dealing with now seeks to protect certain people like newspapers from the effect of section 4 (1) as it stands. With the greatest respect, Sir, if this debate is to mean anything, or even to be coherent or relevant, it is absolutely essential that the Deputy making a contribution must point out and put on the record the effect of subsection (1) of section 4 as it now stands and then go on to say that in order to protect the people from the effect of that section it is necessary to accept our amendment which excludes the Press. That is the proposition I am putting to the Chair with the greatest respect.
An Leas-Cheann Comhairle: The Deputy's amendment is the insertion of certain words after the first subsection of section 4. These words are contained in the Deputy's amendment and already the previous word has been disposed of. The amendment dealing with that has been disposed of.
Mr. T.J. Fitzpatrick: (Cavan): I am not going to argue with the Chair but my amendment seeks to qualify subsection (1) of section 4 as it stands and surely, if we are going to qualify something, we must explain in the clearest possible terms what we are qualifying. That is all we are doing.
Dr. FitzGerald: My entire speech is based on the fact that the last amendment cannot be reopened at this stage and given that the words are there this amendment is necessary. I propose to confine myself tightly to that. I submitted it to the Ceann Comhairle and he permitted me to continue along those lines.
Dr. FitzGerald: I think you will find that I will not be unduly long on this and that everything I say will be entirely relevant. The need for the amendment arises from the fact that the impact of the word “encourage” is such that you could have a situation that you could have reasonable Press comment which did not incite or advocate the commission of an offence but which, nevertheless, unintentionally had the effect of encouraging people to commit an offence. It is only because the word “encourage” is there that the amendment is necessary. If it were not there I think we could do without it.
The need for this amendment arises from the ambiguity of this word in the section as it is now. I am not at this stage proposing to delete it. It is there. That is all over and done with and there is nothing we can do about that. It is precisely for that reason that this amendment is necessary. I have already pointed out that the words “advocate” and “incite” involve in every case— and this is so in regard to all the synonyms I have produced—an intended effect of getting somebody to do something. They involve, by definition, a sharing in criminal responsibility. Had they been the only words used, either one or other of them or both, I do not think the amendment would be necessary. Reasonable Press comment could scarcely be comment which had the effect of inciting or advocating the commission of an offence, of taking an action designed and intended to get somebody to commit an offence.  The need for this amendment arises because the last amendment was rejected by the Government. Without it you could have a situation in which somebody, having no intention of trying to get somebody to commit an offence, could nevertheless find that unintentionally something he said which was of its nature inherently reasonable Press comment, had incited somebody to commit an offence. I will submit examples of what seems to me to be reasonable Press comment and I would be glad if the Minister were here to hear his reaction to them. The difficulty arises because reasonable Press comment not intended to get somebody to commit a criminal offence could have the effect of so encouraging him that he continues to do so, or starts to do so. If it could be shown in court by producing a witness to say that he had, as a result of reading this particular Press comment, been so encouraged that he continued to commit a criminal offence or went out and committed one, the mere fact that he had done so although no such intention existed in the mind of the person penning that comment or the editor responsible for it, would render the editor liable to three years imprisonment. I do not think this amendment would be necessary had it not been for the inclusion of the word “encourage”.
The ambiguity here arises because in marked contrast to the words “advocate” in the Bill or “incite” that might have been in the Bill or in other Bills, the word “encourage” has alternative meanings. It does have ambiguity. It does have meanings which are very similar to and in some respects are identical with “advocate” and “incite”. It has the meanings of: “to animate, to incite, to urge or impel, stimulate or instigate, countenance or promote”. All these meanings are there. Had the word only those meanings I do not think the amendment would be necessary but it is its other meanings which make it necessary. I shall give five examples of the other meanings—to inspirit, to enhearten, to hearten, to cheer, to comfort. Take any one of those and you will see what I mean. Somebody can write something which does not incite the committing of  an offence but which when read by a person who is contemplating, or who might contemplate committing an offence might have the effect of heartening him to do so, of comforting him if he continues to do so. It is these meanings that create the problem. These are meanings which the word had from the very beginning. I shall not go over the ground covered by Deputy Cruise-O'Brien but I shall give one example. The first use of the word in the English language was by Caxton, the printer, in the 1480's and 1490's. What is interesting here is that though his first use of the word was one which would involve criminal responsibility in the phrase: “They encouraged some person to do evil”, his second use, seven years later, was the other sense so that from the very beginning the word had this ambigious feature. Its second use was: “They were greatly encouraged with good hope.”
Dr. FitzGerald: It is because of this alternative meaning which goes back to the very first use of the word, an active meaning, inciting or advocating,  a passive meaning of somebody having been encouraged to do something in a passive sense, that we are in the position we are in. In order to validate that, I shall quote from some newspapers. I shall be interested to hear the comments of speakers on the Government side and I would also hope to hear from the Minister on this point.
Dr. FitzGerald: I should like to hear their comments on words that seem to me capable of encouraging people who might commit an offence. In my personal experience some such words had the effect of encouraging people to do something that was not an offence at that time but would be an offence under the proposed legislation. The comments that were made were quite legitimate at that time. I submit that, even if this Bill were law, the comments to which I shall refer would be reasonable Press comment. They would not be comments designed to incite or advocate the commission of an offence but if this Bill were law they could have the effect of getting someone to commit an offence. When the comments were made in 1969 they had the effect of giving comfort to and heartening people who were doing things that under this Bill would be an offence.
On this amendment we must consider whether we want to restrain newspapers from saying these things. They have been free to make such comments until now and when they were penned by the editorial writers I am sure there was no question in their minds, or in the minds of their legal advisers, that they could be in breach of the law. If this amendment is not passed, similar comment in a similar situation would be illegal and would involve the danger of two or three years imprisonment for those concerned. I put the following questions to Members of the House: Do they share my view of these comments? Are they comments that do not fall under the heading of advocating or inciting an offence? That is my view. Are they not comments that could give comfort——
Dr. FitzGerald: I do not propose to go back on the details. The point is that, whereas the criminal responsibility of a person is engaged when the word “incite” is used only if it can be shown he intended to get somebody to commit an offence, when the word “encourage” is used a person who may be insane or half-witted may be encouraged to commit an offence. It does not matter if the person is mad or sane, it is the newspaper editor who may go to jail. The plea of lunacy on the part of the person concerned will not help the newspaper editor.
It must be only a Scrooge who would frown on the energy and zeal of the students who have occupied No. 45, Stephen's Green, over the Christmas holiday. They have suffered  discomfort for the sake of an ideal and that is to be admired. One need not agree with their methods in order to welcome their public spirit. It is only fair that we should recognise student virtue in an age when we so often condemn student excess.
In this comment there is a fairly explicit pulling back from approval of the methods used by the students. Admittedly, they involved an offence under the civil law although a prosecution was not brought. Whether there was an offence was never questioned in court. It is stated in the editorial that one need not agree with the methods used, in order to avoid any commitment on the part of the Irish Independent, a newspaper cautious in matters of this kind. Nevertheless, can any Deputy on the opposite side honestly say that had he been one of the occupiers of Hume Street he would not have been enheartened by the comment? Would he not have been cheered and comforted? Would his morale not have been preserved? Would his morale not have been raised? Would he not have been reassured and would his fears not have been taken away? All of these are synonyms for the words “give courage to” or “encourage”.
Dr. FitzGerald: I submit that in regard to the incident mentioned in the editorial the civil offence—and it has never been proved that an offence was committed—continued to be committed  for a further six months. Had Deputy Sherwin been one of the protesters— by no means improbable in view of his age—would the editorial not have encouraged and comforted him?
Dr. FitzGerald: The Deputy has taken my point—at last I am getting across to him. In fact, they were words that did not incite or advocate people to commit an offence. They were not responsible for any offence committed but, nevertheless, it could be shown that some of the people concerned were enheartened and comforted. That is all that is necessary. It is not necessary to show there was intent to get them to commit the offence. I am glad the Deputy has taken my point.
Dr. FitzGerald: There seems to be some doubt in the minds of some of the Members opposite on the point of the commission of an offence. Let us be clear that entry into a building is something you do on advocation. You could, of course, make repeated entry but the very nature of entry is a thing that occurs at a point in time. On the other hand, for the benefit of Deputy Sherwin, this Bill is the Prohibition of Forcible Entry and Occupation Bill and occupation of its nature is a continuing matter. If somebody occupies a building, of its nature that is something which continues over a time, and if, therefore, somebody who is in occupation of a building reads a Press comment or hears a comment on radio or television, which has the effect of encouraging him to continue the occupation, then it has the effect of encouraging him to commit an offence.
Of course, if the comment were reasonable comment and it was not intended to have that effect then it would not be an offence if the offence were defined as one of advocating or inciting a person to commit an offence. When, however, the word “encourage” is used there is the difficulty that something that is not intended to have  the effect of getting someone to commit a crime becomes itself a crime at that stage unless it is excluded by this amendment, to which I am trying, without complete success, to direct the attention of the Members on the other side of the House. I am putting it to the House that the comment I have read out—I have other comments to read too—from the Irish Independent is such that normally to normal people —leaving on one side insane people to whom Deputy Sherwin referred—who are, for example, in occupation of a building in pursuance of some offence committed under this Bill, when it becomes an Act, would have the effect of encouraging them.
This would not be the intention of the newspaper in question and it was not the intention, quite clearly, of the Irish Independent at the time. In fact, they went to some trouble to make that clear by introducing the phrase: “One need not agree with their methods”, thus disassociating themselves from any offence that might have been committed against the civil law in existence at that time. What is before us now is whether the Irish Independent must be restrained from making that kind of comment. If this amendment is not accepted then such a comment by the Irish Independent, on December 25th, 26th and 27th, 1969, which was not a criminal act at the time it was committed, would, by virtue of this section, become a criminal act. That is the point before us.
An Leas-Cheann Comhairle: These kind of interruptions must cease. The Chair has repeatedly pointed out that the word “encourage” has been dealt with and Standing Orders do not permit a re-opening of the discussion on this word “encourage”. I am sure the Deputy appreciates the Chair's difficulty in this matter. The Chair insists that the debate be kept to this.
Dr. FitzGerald: I do not need to be told that but I am interested in Deputy Cunningham's interjection. It has this relevance that he is objecting to the Irish Independent at that time condemning the forcible entry of several buildings. Had it encouraged or advocated the forcible entry of the GPO, Jacob's biscuit factory, Boland's Mill and so on, Deputy Cunningham would have been in favour of it. This is rather curious but I suppose it is a vaguely relevant remark on this Bill. On the whole, we are concerned with future offences of forcible entry and occupation and to go back to offences committed so long ago at this stage is scarcely to help the debate along. I have rigidly adhered to the principle of not discussing things which happened before my time.
Dr. FitzGerald: The suggestion is made that Deputies on the other side of the House are advocating forcible entry and occupation and condemning action taken but we are concerned with the Bill to prohibit these actions in the future. The Bill is designed to prevent any repetition of those events of 1916 which would make it illegal for people to occupy the GPO. In fact, may I point out that this Bill if implemented——
Dr. FitzGerald: The comment here is comment which in my view—I invite all the Deputies opposite to offer their views on this later—could have the effect, and which I am in a position to say did have the effect, of heartening, comforting and therefore encouraging the people in occupation in Hume Street but it is quite clear from the wording in this article that there was no intention on the part of the Irish Independent to incite or advocate the commission of an offence. It specifically rules that out by the phraseology used, “One need not agree with their methods”. We are concerned with whether we want to create a situation——
Dr. FitzGerald: He is making frequent contributions, all of them good points and I have nothing against Deputy Sherwin in that regard. The point we are at is whether we want to make that kind of editorial illegal. It was legal when it was written. It seems to me to be a harmless editorial. It specifically excludes any intention of encouraging even the commission of a civil offence at that time. But this editorial if written in the future after this Bill is passed in the form it now is in, would bring that editorial within the ambit of the criminal law; and if it could be shown, and this would not be difficult, that anybody involved in Hume Street was heartened or comforted, if that were the effect of the editorial, however unintentional, the editor of the Irish Independent must go to jail for three years. Of course, if it were treated as a summary offence it is possible that he would get away with six months, but it would be open to the Government to charge him on indictment, in which case he would be given three years on conviction.
It is not good people arguing that the word “encourage” means the same as “incite”. The word “encourage” has meanings which are well defined since it was first used in the English language, and any court given evidence that somebody had been encouraged by a leading article would have no alternative, on convicting the editor on indictment, to sending him to jail for three years.
We on this side of the House are entirely reasonable in suggesting that that possibility should be excluded. If any newspaper, whether it be the United Irishman or the Irish Independent, incited people to commit a crime, the existing law makes adequate provision against any comment in the  Press or otherwise which incites people to commit crime. We on this side of the House have no wish in any way to encourage or tolerate that situation. We are concerned with one thing only and it is that Press comment which does not incite or advocate the commission of crime but which has inadvertently the effect of encouraging it should not render an innocent newspaper writer, editor or manager liable to be sent to jail for up to three years.
I find it hard to believe that anybody on the other side of the House, even the Minister, wants that to happen. It therefore seems to me we could have got through a lot quicker if the Minister had come in here earlier and said: “I accept the amendment.” I find it hard to believe, even in the light of what he said, that he really intends to reject this amendment. The amendment is one entirely in line with his own thinking. He has told us clearly, again and again in the debate, that he has no desire to inhibit reasonable Press comment. He cannot, therefore, with consistency, reject the amendment and I think it can fairly be said that his failure to come in and clarify his position and to accept the amendment, which he may yet do, is holding up the debate. It is our job to make the case that he should accept the amendment and until he does it we will go on making the case. That is what parliamentary debate is all about. We must, of course, do so relevantly, as I am doing; we must do so without undue repetition, as I am doing; but we must do so at whatever length is necessary in order to persuade a recalcitrant Minister to act consistently in line with his own stated intentions in this matter—stated intentions of not inhibiting reasonable Press comment.
It is on these grounds that I submit this amendment must be accepted. I think the quotation I have given validates that. It is not the only quotation I can give as an example of what is involved here. I will give other examples and comments from the Press which had the effect of encouraging people to commit crimes though clearly not intended to do so. Some of it is comment by newspapers themselves,  some of it by people reporting in the newspapers. I am not sufficiently a lawyer to be clear as to whether by excluding reasonable Press comment one excludes the reporting of speeches. This seems to be a moot point, but I have pointed out that speeches were made and reported in at least one of the Dublin newspapers which certainly were encouraging the people concerned. One, indeed, was committed by a very distinguished Member of the other House—at least the speech was made by a Member of the other House —Senator Robinson. In the Irish Times of 8th June she is reported as having said:
It was often stated that the modern generation were critical and destructive. In the past six months they had seen most glorious and constructive action by the younger generation. These young people have preserved our heritage over the winter and summer months. She had gone along to see the occupiers on a number of occasions and had been amazed at what they had achieved in preserving our diminishing and precious heritage. “Tell them it was not in vain,” said Miss Bourke.
She was then Miss Bourke. That is one of many speeches at that time and I am not clear whether the section as it is, if this amendment is not passed, is such that not alone the newspaper but the people concerned could be indicted for an offence, because we are concerned here in this amendment with reasonable Press comment. I wonder whether even if this amendment is passed sufficient protection will be given to the newspaper which reports such speeches. I would be interested to hear the views of legally qualified people on that point.
There were speeches at that time by a great number of distinguished people, all of which were reported in the Irish Times. Omitting the first name out of modesty, there were Deputy Browne, Mr. Niall Montgomery, Professor Myles Dillon, Senator Mary Bourke, as she then was, Deputy Justin Keating, Mr. Michael Sweetman, Mr. Maurice O'Connell, a number of the people who had been in occupation  followed by the National Honorary Secretary of An Taisce, Mr. D.P. Foley—I am sorry, I think the quotation was from a letter in his case—Mr. Michael J. Tutty, President of the Old Dublin Society, who issued a statement at the time.
All of those people were involved and I am not sure whether even our amendment gives adequate protection to the Irish Times for publishing their speech. The fact remains that the Irish Times also commented on the events and the comment had the effect of encouraging the continued occupation of the premises for several days before the constructive intervention of the Minister for Finance ended this unhappy affair. The Irish Times on the Monday morning following, immediately after the attack on Hume Street which ended in the courts, had an editorial which started off: “This is not necessarily the end of the battle.” It went on:
This is not the place to decide the legal issues involved which embrace the rights of owners to use reasonable force in ejecting trespassers and the law against forcible entry even of one's own property of which other persons have unlawfully taken possession.
The reference there to the law of forcible entry referred to the existing laws against forcible entry in the Act of 1381 in Britain and the Irish Act of 1402, a very important Irish Act which, curiously enough, this Bill does not repeal, thereby creating an interesting conflict in regard to consistency of law for reasons which have not been explained to us by the Minister. The editorial went on:
The occupiers, whatever their legal position, were motivated by a cause that is drawing support and it is noteworthy that the long siege of the property was occasioned not because people wanted it as a plaything but because ordinary members of the public put themselves to considerable personal discomfort.
Dr. FitzGerald: I was disappointed by the absence of the Minister because I was trying to make a serious contribution to this debate and to get across what seems to me to be a very valid point. The fact that he has not bothered to turn up today and was not here for most of yesterday seems to me to be curious.
Dr. FitzGerald: I am encouraged and heartened and comforted by the presence here at this moment of that encourager and heartener and comforter of the occupiers of Hume Street, Deputy Haughey, the receipt of whose turkey in Hume Street——
Dr. FitzGerald: ——Was the occasion of great jubilation. Deputy Haughey was only a Minister. He is not a newspaper editor and therefore he is out of order on this amendment. I was working through the Irish Times editorial of June 8th and pointing out that the phrases used in it are such as to hearten and comfort and therefore encourage the people concerned and, in fact, had that effect. Not only did the editorial have that effect but some of the things said in it had a particular effect of encouragement. I have to refer to myself here because there is a phrase saying that “Deputies Garret FitzGerald and Noel Browne both suggested yesterday that Mr. Colley was a friend to the cause of preservation”. The suggestion we made and the recording of it and reproduction of it in the Irish Times had a particularly encouraging effect. Of course, the action of the Minister for Finance, as such, does not come under the amendment but when the Irish Times took up this action, or took up the references to it by myself and Deputy Dr. Browne, and incorporated it in the editorial, it had a supplementary encouraging effect to the original initiative of Deputy Colley. Therefore, to that extent, it is relevant.
The editorial went on to deal with other matters. It made a comparison, all too true I am afraid, with Communist countries which have shown, the Irish Times said, “more regard for their architectural heritage, inherited very often from alien rule, than have the people of Ireland”. I am afraid this is fair comment. It is reasonable comment. Therefore it would be covered by our amendment. The rest of the editorial is not terribly relevant to what I am saying here and therefore I shall not dwell on it now. The effect of an editorial of that kind in a responsible newspaper, written at the time it was written, stating that the occupiers were motivated by a cause for which there was growing support —they were not cranks or frivolous rich or titled persons who wanted the premises as a plaything but ordinary  members of the public, caring about their city—was undoubtedly to encourage them to continue in very difficult circumstances and under constant siege and attack by the group of people who invaded the place on the Sunday morning——
Dr. FitzGerald: That was six months earlier. We are in June now and turkey is somewhat unseasonable in June. I am not saying that if Deputy Haughey had decided to renew his turkey dinner in June the mere fact that it was June and not December would have meant that they would not have eaten it. It is even conceivable that the unseasonable receipt of a turkey in June might have been even more encouraging than the rather trite production of a turkey in December.
Whatever the rights or wrongs of the Georgian controversy, yesterday morning's action in Hume Street was bloody-minded in the extreme. The use of strong-arm tactics in a dawn swoop against the handful of occupiers struck a very ugly note. The whole approach, including the wanton destruction of restoration work, had an aura of arrogance about it.
The group which has been occupying Hume Street for the past six  months behaved extremely well in their unorthodox manner of trying to save the buildings. It was not politically activated. Its purpose was constructive and not destructive. During their time in occupation the members of the group had set about restoring and repairing the building, and their sense of responsibility, combined with their very obvious concern for the future of their city, had won them a great deal of admiration and respect.
The next paragraph could not but have the effect of heartening and comforting and encouraging people and did in fact have that effect. It is fair to say that those concerned were very moved by the extent of the support they were getting in encouragement from the Press. They did not consider for a moment that they were being incited to commit an offence. I heard nobody suggest that at that time our newspapers—the three dailies—were engaged in a joint campaign to incite the breaking of the law or the commission of what at that time was a civil offence. The group were certainly heartened by this. The papers showed a proper concern not to appear to be encouraging even the commission of civil offences. But they could not forebear to cheer what had been done and to cheer those concerned. In so doing they offered encouragement.
By the rejection of this amendment are we to create a situation in which the three newspapers in Dublin— the Cork Examiner was less interested in the matter quite understandably and I have therefore concentrated on the three Dublin papers—will be put in a position where in similar circumstances they could not repeat these comments without the editors going to jail? That is what the amendment is about. If anybody on the other side of the House thinks that newspaper editors should be sent to jail for saying these things in future, let him get up and say so. Let us have one contribution from one  Member of the Fianna Fáil Party saying that is what he thinks. I do not believe they think that. Deputy de Valera certainly does not. He is the first for the chopper.
I do not believe the Minister wants to send newspaper editors to jail for saying things like that but apparently he feels that, if he does not push his legislation through in a form which would enable them to be sent to jail, and which could make such comment illegal, he will be losing face. This somewhat Chinese approach to legislation has been characteristic of some past Fianna Fáil Ministers, in some cases men of undoubted ability who had this curious feeling that to accept an Opposition amendment was in some way to lose face and to damage their prestige. Where they got this idea from I do not know. In talking to people outside this House I find that they respect Ministers who show flexibility and a willingness to listen to valid arguments. We have, for example, the Tánaiste who in the debate on the Health Bill showed a willingness to consider valid points made by the Opposition. This has been true of other Ministers.
When Ministers are willing to listen and to accept reasonable amendments their prestige rises and people think highly of them and speak well of them. There are not many people who speak in harsh terms of the Tánaiste. They regard him as a good and able Minister who is willing to accept amendments. Unfortunately it was the case until 18 months ago that a number of key Ministers, despite their ability, felt unsure of themselves, oddly enough, to such a degree that they were unable to accept amendments. They went and, on the whole, the Government team that have emerged, although one cannot flatter them in terms of ability, have shown a greater willingness—or, rather, should I put it less strongly; a lesser unwillingness—to listen. Perhaps one should not put it higher than that because even today we find debates extremely frustrating. While, on the whole, in the case of a number of Ministers, their attitude and standard is not as arrogant as was the attitude  and standard of some of the men who went, in a very polite and gentle way they still manage to reject every amendment moved on the Opposition side. But, nonetheless, the attitude is a little more conciliatory than it was before. Unfortunately the present Minister we are dealing with here in this case is not of this group. For some reason he feels he has to behave like the Ministers who were dismissed. Whether that will carry any consequences in the future I do not know, but he apparently feels he has to resist every amendment.
We are in the curious position that we have an amendment which, I believe, is acceptable, in fact, to every Member of this House. I do not believe, there is any Deputy who will get up and actually argue that this amendment is wrong and that this type of comment in editorials, if repeated in future, should involve editors spending three years in jail. I do not believe anybody over there will argue that. Indeed, the only contribution we have had on the other side of the House did not, in fact, argue that. It was not, perhaps, a completely relevant contribution; it was not very directly on the amendment, but I understand the Deputy concerned not to want to send editors to jail for this kind of thing. I do not think that was the intention and, indeed, I think I know Deputy Dowling well enough to know that that is not the way his mind works. We may have speeches from the other side of the House on the amendment. They may talk, as the Deputy talked about it, in some vague way, but they will not, in fact, tell us that this amendment should not go through because they want editors to go to jail for this sort of thing. That is not the wish of the people on the other side of the House. It is not what they want. It is not what we want.
Then what are we wasting our time here for? Why cannot the Minister come in here, drop in just once today —he dropped in twice yesterday, I think—and stand up over there and, if he indicates that he is prepared to accept the amendment, I will sit down and so will everybody else on this side of the House. This is entirely in line with my stated intention in the speeches  I made on the earlier Stages of the Bill. That is the position we are in. The Minister has not suggested he wants to send editors to jail for this kind of comment. He has said he does not. It is quite evident that up to this everything that I have said and that other people have said points to the fact that the effect of this section, if unamended, will be to make that possible. Indeed, if evidence is given that people have in fact been encouraged the section will be mandatory if it remains in its present form. In those circumstances will the Minister not come in and, like an ordinary sensible human being—let him just pretend for a moment that he is the Tánaiste— stand up here and politely say that he accepts this very reasonable amendment? Does anybody think he would suffer any discredit if he did that?
Dr. FitzGerald: I was putting it to the House before the Minister and some other Deputies on the opposite benches came in that there is, in fact, basically no disagreement on this amendment. As I understand the Minister's speeches on earlier sections, he does not wish to inhibit Press comment and he does not intend to do so. We all wish reasonable Press comment to be permitted. Unfortunately, however, the Minister feels unable, or has hitherto felt unable, to accept this amendment. It may be that his entry into the House belatedly at this stage is a prelude to his intervening to say he will accept the amendment and if, at any stage, he indicates to me that he wishes to rise and move to accept the amendment I shall sit down. If he does not do that then I shall continue my argument in favour of the amendment in the hope that he will ultimately  be able to accept it. If it is the case, as I believe it to be, that no one on the other side of the House, the Minister included, wishes to inhibit Press comment then this particular amendment must be accepted and the sooner the better. The Minister knows that the wording of the section as it is, with the word “encourage” there, is a wording which lays any comment open to criminal action if it has the effect of encouraging anybody to commit an offence or indeed to continue to commit an offence he is already committing, if it heartens him or comforts him, these being among the meanings of the word “encourage”. Having failed to accept amendment No. 8, the Minister must in logic accept this amendment because he cannot sustain the case he made on the previous amendment unless he does so, having insisted on the retention of the word “encourage”, recognising that this word, as I have shown already, has alternative meanings of a passive character concerned with the effect of certain actions, however unintended, upon people, of heartening and comforting them. Given that the word has those meanings, the rejection of the amendment after the rejection of amendment No. 8 would have the legal effect of putting in jeopardy anybody who wrote editorials of the kind I have quoted in respect of Hume Street in the three Dublin daily papers. In those circumstances the Minister must logically accept the amendment.
If he fails to do so then he knows, we know and his supporters know that his rejection of the amendment is motivated not, I think, by a desire to lock up newspaper editors but by willingness to risk the creation of a legal situation in which that could happen arising out of reasonable Press comment rather than be seen to “climb down” or “lose face”, a consideration which as I have said earlier in the Minister's absence and would like to say to his face, puts him in a somewhat Chinese category.
I do not think the House should be detained and its time wasted by a Minister holding up business here because of his refusal to accept an amendment which is totally in line  with his stated intentions and which is rendered necessary by his rejection of the preceding amendment and which, in logic and in all consistency, he must accept, an amendment which is in line, I believe, with the thinking of all Members on the other side of the House, their wishes and intentions, and whose rejection could only be accounted for by an attitude on the part of the Minister not to accept any proposal of the Opposition that would involve a climb down or loss of face.
The Minister knows this perfectly well and regards the amendment as inherently reasonable. I hope he will say so but if he does not admit this our conclusion as to the character of the Minister must be inevitable and I think his own party's conclusion must be inevitable because all the Deputies opposite know that what I am saying is reasonable and true. They know that they do not wish to be put in the position of appearing to endanger the freedom of the Press. There may be Members opposite who think that Press comment on Fianna Fáil and some of their activities is too free and they would like to inhibit it in some way but they certainly do not wish to be seen to be inhibiting the freedom of the Press. I do not think they feel comfortable about this aspect of the Bill; I do not think they approve of it and I think many of them have indicated that view to the Minister. If that is the case, if he does not accept the amendment, the only explanation that we can give will be that considerations of his own personal prestige, as he sees it, carry more importance than the reputation of the Fianna Fáil Party or the reputation of the laws of the country in respect of Press matters. These are the views I want to express on this amendment. They are reasonable views. I regret the Minister was not here to hear me develop the theme more fully. I hope that when I sit down he will, in fact, rise to accept the amendment.
Mr. O'Malley: First, I want to reiterate what the Parliamentary Secretary to the Taoiseach has said, that I have been at a Government meeting since 11 o'clock. I am a member of the  Government and I have a duty to attend meetings of the Government.
Mr. O'Malley: I intended no discourtesy to the House and fair-minded Deputies know that perfectly well but there are some Deputies who would seek to make capital out of a situation in which they know they have no basis for doing so.
Mr. O'Malley: There have been many quotations from newspapers in the course of this debate on this amendment and on previous ones. As one might expect, having been quoted by the Opposition, they are all to the same effect but my colleague, Deputy Crowley of Cork south-west, has drawn my attention to the issue of a newspaper published in his constituency, the Southern Star of Saturday 24th July, 1971 and to a leading article in it headed “Our Sensational Press”. That leading article is worthy of close study by Members of the House and by anybody who has read about or listened to the topics that have been discussed on the various amendments on Report Stage of this Bill. In fairness to all concerned I should like to quote the full leading article but I understand I would probably be outside the rules of order if I did so. If the Chair permitted I would do so.
Mr. O'Malley: But I shall quote some paragraphs from it and at the same time recommend Deputies or anybody who is interested to read it in full. It deals with the activities of the Press at present arising out of the debate on this Bill which the editorial describes as “all the hullabaloo”. It says in one of its paragraphs:
That some newspapers were giving undue prominence to law breaking of a certain type, to an extent verging on sensationalism, cannot be denied. The splashing of these stories all over the front pages of, say, the Irish Times could not but serve as an encouragement, and while nobody would advocate suppression of such news, the space and prominence accorded could be regarded as tantamount to glorification.
Dr. Cruise-O'Brien: On a point of order, I could not catch an important part of the wording which the Minister was using there in this quotation which was interesting for us to hear and very important. I did not understand whether the splashing of news would constitute encouragement or would not. What did the Southern Star say?
That some newspapers were giving undue prominence to law breaking of a certain type, to an extent verging on sensationalism, cannot be denied. The splashing of these stories all over the front pages of, say, the Irish Times could not but serve as an encouragement, and while nobody would advocate suppression of such news, the space and prominence accorded could be regarded as tantamount to glorification.
Mr. O'Malley: And so is the Southern Star, and I was glad to find out from the front of it that it incorporated the Skibbereen Eagle. The Southern Star has its eye on the Opposition. Look what happened to the Tsar of Russia.
The freedom of the Press of which we proudly boast will flourish just as long as it is exercised with a due sense of responsibility by the profession  of journalism. Like all our liberties it is subject to the rule of law. But for the most part this restraint is light. The honest journalist need not shrink from his public duty fearlessly to proclaim the truth, to denounce fraud and imposture, to record faithfully, as in a mirror, the fleeting pageant of the hour. In the field of journalism as elsewhere the terrors of the law are for evildoers, its help and guidance for all who honestly seek its aid.
Mr. O'Malley: The amendment which has been proposed here, amendment No. 9, has an intention with which nobody seriously quibbles, but the wording of the amendment and the very fact of putting in this superfluous amendment, would simply have the result of making it necessary to write into all legislation that comes before the House, superfluous declarations which are already part of the law. If they were written in, the implication could be drawn that what was contained in them was forbidden by the Bill. The gist of this amendment is that reasonable comment on matters of public interest in newspapers, et cetera shall not constitute an offence under the section. I fully agree that such comment does not constitute an offence under the Bill or, indeed, under any other legislation. However, if we are to write this in here the implication will be that reasonable comment is an offence at the moment.
Mr. O'Malley: Reasonable comment is not, never was and, as far as I am concerned, never will be an offence, but if we are to write into our legislation self-evident, basic truths of our law it means we have to write similar self-evident basic truths of our law into every piece of legislation, which, to my mind, would be a ridiculous situation. I have no objection whatever to this in principle—I want to make that very clear—but I am advised if I were to accept it I would simply create a chaotic situation in regard to legislation in the future.
Mr. O'Malley: Let me give an example in very simple terms: if a Bill were brought in to prohibit some easily definable action, say, that it shall be  unlawful to paint a wall with black paint; the sense of this amendment, if it were to be followed in legislation of that type, would be that, having said in subsection (1): “It shall be unlawful to paint a wall with black paint”, we must go on in subsection (2) to say: “It shall not be unlawful not to paint a wall with black paint”. That is precisely the effect of this. It says you may not do certain things and the things which you may do are then added here. Everyone knows that reasonable comment on a matter of public importance is perfectly legitimate in accordance with our law and that this Bill in no way affects it.
Mr. O'Malley: I have accepted seven or eight amendments on the Committee Stage of this Bill between my own, which were put down in response to suggestions from Deputies opposite, and other amendments down in the names of Deputies opposite. I accepted on the Committee Stage on sections 2 and 3 three amendments in the names of Deputies opposite and there was an immediate outcry: “The Minister has gutted the Bill. It is now completely different.” The Committee Stage wended its weary way for some further days and, because I did not accept amendments on the following section in the names of Deputies opposite, only a matter of days after being accused of gutting the Bill I was accused of not accepting anything at all. In fact, the total number of amendments which I accepted, either directly or indirectly, was seven, which is an exceptionally high number of amendments to be accepted on a short Bill of this kind. I want to reiterate that I have no objection to the principle enshrined in this amendment. If I am to accept it—and it would be an easy thing for me to say “I will accept it”—I have to bear in mind what the  consequences of accepting a superfluous amendment of this kind will be on legislation in the future.
If the principle is established that a self-evident truth of our law must be written into each and every section that goes through this House creating an offence, then it reduces legislation to a rather ridiculous situation, because all the defences would have to be set out in all the sections in all the Bills. If the logic of putting it in on this occasion were to be accepted and followed on future occasions one of the problems of a practical type that would arise, if I accepted the amendment in the form in which it is here or accepted it at all, would be that reasonable comment on a matter of public interest must in the terms of the amendment be in any newspaper, magazine, periodical or book, which would seem to imply on the face of it—and would have to be upheld by court so to imply—that it is all right to make reasonable comment in a newspaper, magazine, periodical or book but because that is specifically said it must not be all right to make comment on television or radio or on a poster or handbill or an advertisement of some kind. These are drafting points and are important. The Deputies opposite put in slip-shed amendments. One does not have to be a skilled draftsman to see the problems. They expect amendments which would have all sorts of ludicrous consequences to be accepted—that one can make reasonable comment in a newspaper but not on television.
Mr. O'Malley: It seems ridiculous that I must point out to the House what the consequences of accepting this amendment would be. This amendment seems to make reasonable comment in a certain limited category of communication media not an offence, although it is not an offence anyway, but the implication is, because it is spelled out in the amendment, that unreasonable comment  would be an offence. Where do you go from there? Who is going to prove what is reasonable and what is unreasonable? This question flows logically from this amendment. I did not create these difficulties. They were created by the amendment put down.
Mr. O'Malley: It is almost impossible to discuss this amendment in any reasonable way. It is clear from Deputy Desmond's interruption that he could not care whether the amendment was accepted or not. The Labour Party will still carry on in the same ridiculous manner whether the amendment is accepted or not. That is clear from the words the Deputy has used.
Mr. O'Malley: An amendment on the Report Stage is under discussion. I have been endeavouring to discuss that amendment in a reasonable and rational way. I have expressed my acceptance of it in principle but I pointed out the practical difficulties which would arise if I were to accept it. I have looked at it from the point of view of seeing whether it could be amended in some way that would overcome these difficulties. I am afraid it cannot. I have asked my advisers and the parliamentary draftsman who is highly experienced on these matters whether it could be amended——
Mr. O'Malley: If it were written in specifically and if we were to pass a Bill during the next session, such as a Road Traffic Bill or a Larceny Bill, it would be necessary, if I accepted the logic of writing in all these defences, to say “It shall be an offence to steal goods belonging to another person” and in following subsections to say “A person will not be guilty if he is insane, or if he does not have mens rea, or if he has a bona fide claim”. If it is necessary to set out every defence, that everybody knows is a defence anyway—our legislation has always worked on the idea that there are basic tenets in our law that apply in every case unless they are excluded and that has always been quite clear —this would not help. I had to say many times before I could get it accepted that reasonable comment on a matter of public importance, whether in a newspaper, magazine or periodical as suggested by Deputy Fitzpatrick, or anywhere else, has always been allowed, is allowed now and is not affected by the Bill. It will always be allowed.
Mr. T.J. Fitzpatrick: (Cavan): Does the Minister not think that the fact that we are creating two new offences here of forcible occupation and the offence of encouraging goes to the whole root of this and that is why it is important that the Press should be protected?
Mr. O'Malley: It is impossible for me to make a speech here, I am afraid I shall just have to give up. Freedom of speech is gone. I have not been able to say two consecutive sentences in this House. Six Labour Deputies have constantly interrupted me. I just cannot speak.
Mr. O'Malley: It is rather a drastic situation that a Minister, whose absence has been complained about earlier and who comes in here now to try to talk to the House on the amendment before it, is prevented by seven Labour Deputies sitting there——
Every criminal statute is expressed elliptically. It is not possible in drafting to state all the exceptions and qualifications that are intended. One does not, for instance, when creating a new offence, enact that persons under eight years of age cannot be convicted. Nor does one enact the defence of insanity or duress. The exemptions belong to the general part of the Criminal Law, which is implied into specific offences. On the Continent, where the Criminal Law is codified, and similarly in those parts of the Commonwealth with a criminal code, this general part is placed by itself in the code, and is not repeated for each individual crime. The law of mens rea belongs to the general part of the criminal law, and it is not reasonable to expect Parliament every time it creates a new crime to enact it or even to make reference to it.
This is the very point I am making with regard to this amendment. It is already part of our law, it automatically  operates with regard to this Bill and to each offence created under the Bill, therefore it is not necessary to write it in. It is already part of our law that reasonable comment on a matter of public interest, whether it is a newspaper, magazine, periodical or book or indeed on television or radio or just verbally at a meeting, in a pamphlet or anywhere else, is not an offence and cannot constitute an offence. It is therefore quite superfluous to consider putting it in.
Mr. O'Malley: Glanville Williams, Criminal Law: The General Part: (2nd Edition). I am quoting from a typescript of parts taken from it, unfortunately I do not have the page but I shall be able to get it for the Deputy immediately I finish.
Mr. O'Malley: I have dealt fully with the amendment. I am possibly the only speaker who has dealt with it and its consequences. I have endeavoured as far as I can to avoid making general remarks which are not relevant to the amendment. I would be failing in my duty if I did not say before I sit down, irrespective of what interruptions it presumably will cause, that the greatest danger that can exist to this Parliament is the sort of conduct we have seen from the Opposition on these amendments in the last few days in particular and in the last few weeks generally.
Mr. O'Malley: We had an example yesterday of a Member of this House speaking for between five and six  hours allegedly on the meaning of one word. He quoted from tomes going back, I understand, to the 16th century.
Mr. O'Malley: It served only to make this Parliament an utter and absolute farce. It served only to drag it down to the lowest possible level. It served to institute or to create a feeling of contempt for Parliament that would inevitably, if it were allowed to continue, bring about assuredly the end of that Parliament. I cannot and the Government cannot stand——
Mr. O'Malley: ——for many hours inside and outside the House to try to speak on that amendment. It was perfectly evident that Deputy Cruise-O'Brien, having spoken for six hours and having indicated that he was going to speak for many more hours, was absolutely adamant that he would not allow me or anyone else from this side in to speak on it.
Mr. O'Malley: My purpose in moving the closure of the debate, which you, Sir, accepted, was simply to put an end to the farce that we saw here yesterday. I only wish that the people of this country in general could see in fact what went on in this House yesterday.
Mr. O'Malley: I will leave that point there and come back to the amendment itself. I absolutely accept the principle of it but it makes just a joke of the whole thing: it is proved by what I have read from Dr. Glanville Williams——
Mr. O'Malley: ——that, if I accept it, it means that for every statute we pass and for every offence we create in every section of every Bill which goes through this House we are going to have to set out at length the defences that applied to it. The fact of the matter is as I have shown from my quotation from Dr. Glanville Williams,  that all these defences and exceptions to liability apply anyway to all crimes and all offences unless the statute creating them specifically excludes it, and it does in certain cases. One has these cases where on had absolute liability in relation to the offences under the Food and Drugs Act, for example, and they are regarded as being in a special class of their own because even though the person prosecuted may have no mens rea——
Mr. O'Malley: ——as he very often does not the matter is so important that he is still held guilty of it. In the Food and Drugs Act and other similiar Acts where that applies it is set out explicitly in the Act that these defences shall not apply. The whole basis of our law is that these defences and exceptions to liability do apply unless they are specifically excluded. The purpose of that, as Dr. Glanville Williams has made it quite clear in this book, is to prevent legislation becoming a joke and to prevent Parliament from having to clutter up its Bills with long lists of defences in every section in every Bill.
All these defences and all these exceptions to liability apply unless they are specifically excluded. This defence or exception from liability, the reasonable comment on a matter of public interest, applies unless it is specifically excluded, therefore there is no need to write it in. If one does write it in one does far more damage because one immediately causes people to feel—and possibly would cause judges to feel—that this defence is not written into all other Acts and therefore reasonable comment would be an offence in regard to all these other Acts or all these other crimes. We could not have that. The whole basis of our jurisprudence, as Dr. Williams has clearly shown, is that these exceptions to liability apply in all cases unless they are specifically excluded. Even though I have no objection in principle to this—I agree with it—to put it in is to create an enormous doubt in a huge field of law and to  manufacture unnecessarily enormous difficulties for future legislation in this House. In other words, what Deputy Fitzpatrick wants to put into the Bill is in fact already there because in every section of every Bill all these things apply unless they are specifically excluded.
Mr. Desmond: Having listened to the defence of this Bill from the Gauleiter of German Hitler Youth we can now proceed to point out a few simple truths to the Minister. The simple self-evident truth, to use his own phrase, that he is creating a whole new concept of criminal offences has not yet dawned on the Minister. Under this piece of obnoxious legislation, he is creating the offence of encouraging and of advocating. It is tendentious nonsense and, if I may quote Deputy Cruise-O'Brien, supercilious sophistry on the part of the Minister that he should suggest that by not accepting this amendment——
Mr. Desmond: The exhibition that we have seen from the Minister this morning of autocratic reaction and of Hitler youthism gives very good reason why we should insist that this amendment be accepted. The Minister has tried to assure us that all we need worry about is that it shall or shall not be lawful to paint the wall black. That exhibition of legalistic analogy would not merit ten marks out of 50 in the most Mickey Mouse law examination of any third rate banana republic. The Minister should at least accept that comment. My colleague has gone across the floor of the House to collect a copy of the Southern Star. As a Corkman I was tingling with excitement to find out what would be the comment on this national debate of the Southern Star, the repository of sole defence left to the Minister. So bereft is he now of comfort that he  has again gone, in the historical development of political argument in this country, to that paper.
Mr. Desmond: He has quoted sections from this editorial but I think it is proper that, as Deputy O'Connell did this morning in respect of an editorial from the Irish Times, I should be permitted the luxury of reading this editorial to the House.
Mr. Desmond: The Minister quoted selectively various sections of this editorial that are in his favour. So bereft was he that he had to cajole Deputy Flor Crowley into doing some research for him, and we all know that Deputy Crowley's capacity for research into legislation of this House has its own distinct limitations. I quote from the editorial of the Southern Star dated 24th July, 1971. The editorial is entitled “Our Sensational Press”.
That freedom of the Press is a vital cornerstone of democracy there can be no denying. Curbs on Press freedom are always the first sign of an emergent dictatorship since public opinion, expressed throughout the medium of a free and fair Press,  must always be stifled as a top priority.
The “fourth estate”, as the Press is often known, performs an extremely vital function not only for information and valid comment but also to keep the public informed of their rights and protect the un-initiated from exploiters and racketeers of various descriptions.
There is, for example, that totally undesirable shackle on mentioning brand names when conducting consumer analysis, something that greatly obstructs the work of the newly-formed Irish Consumers' Association not to mention the consequent exploitation of the Irish  consumer and the undesirable effects on our industrial standards.
That some newspapers were giving undue prominence to law-breaking of a certain type, to an extent verging on sensationalism, cannot be denied. The splashing of these stories all over the front pages of say, the Irish Times, could not but serve as an encouragement, and while nobody would advocate suppression of such news, the space and prominence accorded could be regarded as tantamount to glorification.
Yet these same newspapers have been known to sneer at the sensationalism and “trivialisation” of the British Press, forgetting that in some spheres, at least, they have surpassed them. Newspapers, we should remember, have responsibilities as well as rights. Not only must they serve as watchdogs of the people, in  a positive fashion, but, on the negative side, they must do nothing which would serve to undermine the rule of law or corrupt the public morals. Even as regards the latter, our daily press is tending to ape the sensationalism of their British counterparts.
One only has to cite the recent High Court proceedings, as a result of which all four daily newspaper companies were fined heavily for infringing the Censorship Act by publishing details of the Bradley divorce case last December. Even in England, public opinion has come out strongly against such revelations and rightly so. While ordinary criminal, and to an extent, civil prosecutions, need to be published “in the public interest”—that most important criterion is altogether missing in the case of most marital quarrels. After all, when friend parts with friend, when employer parts with employee, the details of breaking-up are not broadcast to the whole world. Some things are still private and the Press should respect this privacy.
The Bradley publications were an extraordinary black mark against the Irish press. To have the most intimate details published in this sordid fashion was culpable enough. The law was repeatedly flaunted day after day. But what of the unfortunate defendant for whom there was widespread public sympathy and who did not long survive the ordeal?
The State, some say, should have stepped in quickly and informed the newspapers that they were breaking the law. Perhaps. Yet is this really a valid excuse? Ignorance of the law, everybody knows, is no defence and there is no profession for which this is more pertinent than journalism. Even in England, the right to report divorce and other matrimonial proceedings is severely curtailed. According to the Judicial Proceedings Act, 1926, not a particle of divorce evidence may be published and this is still generally enforced except occasionally when involving “public” figures for whom,  as Bernadette Devlin found out, the “private” area is far more limited.
The “freedom of the press”, of which we proudly boast, will flourish just as long as it is exercised with a due sense of responsibility by the profession of journalism. Like all our liberties, it is subject to the rule of law but for the most part this restraint is light. The honest journalist need not shrink from his public duty...
Mr. Desmond: The Minister said he would not like to include as an amendment what he called self-evident truth. I can assure the Minister that the inclusion of the words “advocacy” and “encouragement” within this Bill is something more serious, more threatening, more intimidating than self-evident truth. It should be pointed out to the House, as we are now going through this jackboot exercise in terms of pushing legislation through, that the first occassion in the 1960s on which the terms “encouragement” and “advocacy” were brought into legislation was in the notorious Criminal Justice Bill of 1967 which the Minister for Justice, with perspiration running off his glasses, at the Fianna Fáil ArdFheis was obliged to withdraw in public and abject humiliation, after the reaction of the Fianna Fáil Party against it. Here it is in all its suspended glory before the House. That Bill did have a section, a specifically written-in section called “Unlawful Encouraging and Advocating”. Here it is in little black type drafted by the Minister for Justice. What did the Minister for Justice in 1967 say? He issued an explanatory memorandum with the Criminal Justice Bill, 1967, as introduced. Listen to what the explanatory memorandum said and then we will see the self-evident truth of what the Minister has in mind. It reads:
Section 53. Subsection (1) makes it an offence to encourage or advocate the attainment of any particular object by criminal means. Subsection (2) makes it an offence to encourage or advocate the non-payment of rates, local rates, rents of local authority houses, or other moneys payable to public funds.
These provisions are in some respects similar to section 18 of the Offences Against the State Act, 1939, but the latter is concerned with organisations that engage in this kind (or certain other kinds) of activity whereas the present section is related to individuals as such (though they may, of course, be acting in concert).
That section of the Offences Against  the State Act, transposed into the Criminal Justice Bill was ignominiously withdrawn by the Government in the face of total public opposition. It is now simply transposed and has had a rather dirty adoption into this Bill. I challenge the Minister very strongly to deny this pedigree of intent. I shall read what the Criminal Justice Bill says. It is entirely relevant:
Mr. Desmond: I had been pointing out to the House the dirty origins of the words “encouragement” and “advocate.” The Pedigree belonged not to Limerick but to Castlebar. Before the former Minister for Justice, Deputy Moran, was gently removed by the Taoiseach, he introduced the Criminal Justice Bill, 1967. Section 53 of that Bill stated:
This was the background of the old NFA dispute and the phrase “Lencouragement and advocacy” was born overnight. It is not the novel concept the Minister for Justice suggests. Section 53 of the Criminal Justice Bill stated further:
(a) on summary conviction, to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for a term  not exceeding six months or to both such fine and such imprisonment,
Again, I would point out the similarity in this section of the Criminal Justice Bill with the Bill now before us. The former Minister for Justice was forced publicly to withdraw the Bill in an abject and humiliating manner at the Fianna Fáil Árd-Fheis. We can all remember the scene with the Taoiseach looking down his nose pretending he did not exist when Deputy Moran went to the platform and withdrew the Bill in the face of public opposition. For the benefit of the Fianna Fáil members who are now present, I would point out that this section has been stated by the Minister——
Mr. Desmond: We are discussing a very questionable offspring of the Criminal Justice Bill and the Minister knows this quite well. I was interested to note that the Minister sought the support of the now notorious Southern Star
Mr. Desmond: The notorious Southern Star and the notorious Skibbereen Eagle, both acting under the one editorship, are being used by the Minister. I notice he fell into one trap and Deputy Cruise-O'Brien will elaborate on that quite soon. He said “the activities of the Press” and, in fact, this is the crunch of the Minister's concept of the law. I would remind the Minister of his words regarding the presentation of particular matter within newspapers. Not only is encouragement and advocacy involved but the activities of the Press—the very fact of publication—are being brought within the concept advocated by the Minister.
I do not think the Minister has appreciated the extent to which he has committed himself in terms of prosecutions in regard to the future activities of the Attorney General's office. The Minister will live to regret the approach he adopted this morning.
Mr. Desmond: The Minister spoke at great length about what he called “the abuse of Parliament” by Opposition Deputies. I would say to the Minister that the example set by him, as a relatively young Deputy, to the young people of this country on the operation of democracy is something of which everyone can be ashamed. His cynical use of the guillotine in this House showing a total disregard for the rights of the minority in Parliament and for the majority of opinion throughout the country is a further disgrace on the Minister and his party.
Mr. Desmond: The Minister raised the matter and I am entitled to comment. I would point out to the Minister the views of a former Taoiseach, a man for whom I had the highest respect and regard. He was a professional politician who did not have to resort to the tactics of the Taoiseach yesterday when he used the phrase “with all my credibility”. Although we know the Taoiseach is obsessed with his credibility, nevertheless, it is extraordinary to hear a Prime Minister use such words.
In a Censorship Bill it is always much easier to go too far than not to go far enough, and we ought to be very careful to see that there would be nothing in this Bill, which by giving too much power to the Board or too much power to the Minister, would destroy public confidence in it.
Mr. Desmond: Page 205, Notes to Chapter II, Pages 39 to 46 of “Censorship” by Michael Adams. Remember the Fianna Fáil Party were then in Opposition and the late Seán Lemass spoke from the Opposition benches here and gave that simple advice to the Minister. It was a very tumultuous debate but the present Minister for Justice has something to learn from it. When a Minister was making an idiot of himself the former Taoiseach came into the House to defend him or tried to rescue him. When Mr. John A. Costello was Taoiseach he, quite frequently, came into the House and  assisted the Minister for Justice in the passage of any Bills through the House. It is notable that not once has the present Taoiseach throughout the debate on this Bill come in to defend his Minister.
Mr. Desmond: The Minister opened up the matter and I am merely replying. It is notable that since July, 1970, on the first day this Bill was taken in this House, the present Taoiseach has never spoken on it.
Mr. Desmond: I challenged the Minister for Justice to put on record the reply which he sent to the Cork Examiner about the question of incitement. The Minister quoted from that  letter on the 16th July, 1971, when he said:
Obviously your leader-writer must be unaware of the fact that it is already, and has from time immemorial been, a criminal offence for anybody—be he journalist or otherwise—to incite another person to commit a crime. It follows that there is no possible basis for what is said in the editorial.
An Leas-Cheann Comhairle: On the basis that we are dealing with amendment No. 9 which deals with reasonable comment. If the Deputy wants to question the rulings of the Chair he has a method of doing it.
An Leas-Cheann Comhairle: The Chair has adverted to this previously. Comments about the Chair ought not to be indulged in by any side of the House. Will the Deputy please relate his remarks to amendment No. 9.
That is what we are discussing and I submit that the views of the Cork Examiner where they said that reasonable comment could be construed by the Attorney General as encouragement would mean they might find themselves in court defending their action. On that basis my reference to the editorial of the Cork Examiner is appropriate. I think by now the public at large have got the message.
Mr. Desmond: The amendment proposes that reasonable comment should not constitute an offence under this section. I feel the failure of the Minister to accept such an amendment gives concern to the public. I feel the relationship between the State and the Press gives grounds for very serious national concern. In that respect I think we can take the wisdom and advice of one authority, Francis Williams, who stated in his book, Press, Parliament and the People:
Yet in the present stage of democratic development, checks upon the executive, which strong, responsible newspapers provide, have an importance greater perhaps than ever before. The need for reasoned argument and exposition, for consistent and continuous public education and guidance, and for a constant watchfulness, effective because of the responsibility and integrity of those who exercise it, is greater now than at any time in history.
This is the nub of the reaction of Labour and Fine Gael on this amendment. I will, perhaps, issue a challenge to Deputy de Valera—and I do not particularly relish doing so, because I have immense personal regard and respect for the Deputy on the Fianna Fáil side—to say whether he agrees with Francis Williams's viewpoint: “I would go further than the State, than the Government. I would go into the Attorney General's office.” I think he would agree that such a view is something we should preserve and protect. I have in mind, for example, that in any occasional series of events somebody on radio might be hauled up under this section.
Mr. Desmond: I am commenting on what constitutes reasonable comment— newspapers, magazines, periodicals, books. I am commenting on a story which appeared in a book, The History of RTE, by Maurice Gorham. There was a story in that book that during Question Time, when Joe Linnane went to Belfast one Sunday night during the war and when he put a question to a contestant——
Mr. Desmond: I have been trying to point out that all we are looking for in this amendment is appreciation  of a free Press. Dáil Éireann has a unique responsibility to ensure that reasonable comment is protected. Journalists themselves have their own particular code of ethics and one of the rules of the NUJ, published in 1968 is:
Mr. Desmond: The Taoiseach and the Cabinet are so anxious to avoid any loss of face that they got an approach made to the Opposition to do a deal and I confirm for the Fianna Fáil back benchers in relation to the amendment that we did have approaches from the Fianna Fáil Party, from the Minister, and from the Minister's office.
Mr. Desmond: I have named the Minister, first of all. I will go on record in this House as saying that the Minister attended a meeting of the three Whips and suggested a deal to the three Whips. Indeed, he said he would accept the amendment provided we would withdraw all opposition to the Bill. This was the deal and I am challenging the back benchers of Fianna Fáil to go up to the Minister and put it to him because they are being taken for the biggest parliamentary ride of their careers.
Mr. Desmond: The function of Parliament is that of deliberation. The Fianna Fáil Party, by their tactics in the past two days, have shown that their sole conception of Parliamentary democracy is a one-party Government, a one-party State, a one-party Cabinet and, of course, a one-party country if they can get their way.
Mr. Desmond: I am saying in relation to the amendment that the Minister does not yet seem to appreciate that we live in a representative democracy, that we do not live in an authoritarian one-party State. There is national opposition to the Government section which this amendment seeks to amend. National representative opinion expressed throughout the length and breadth of the country is opposed to the section and there is no support for the Minister apart from a highly questionable comment in one paragraph in the Skibbereen Eagle or the Southern Star and that is why the Taoiseach lost his cool this morning when I suggested that he had disgraced himself and his party by persisting in his attitude——
Mr. Desmond: In relation to reasonable coment by minorities, the Minister's conception of a newspaper does not extend beyond trying to crucify the United Irishman and this, of course, is the whole purpose of the Bill: to “get at it” if I might use the Minister's phrase; “activities of the Press” to use another phrase we heard this morning. This is very reminiscent of the definition of majority rule given in the Encyclopaedia of Social Science: the early Slavs, unfamiliar with the device of majority rule relied entirely upon unanimity——
Mr. Desmond: ——the Government should have another look at this amendment since they had another Cabinet meeting this morning. I do not think they will lose any more face than they have lost already by withdrawing the section. The Government should not disgrace themselves any further. We should not have to wait any longer for the Government to postpone the whole debate on this Bill to next October. That is quite rational and reasonable. The House could go into recess and we could discuss this amendment and the other amendments at length next October. At the moment I suggest the Taoiseach has not the moral courage to do that.
Mr. Desmond: One of the serious reactions to this amendment will be with regard to reasonable comment in the future in the whole of this island. It is quite tragic that at a time when we should not be adding grist to the mill of the extremists either North or South, they can pick on this section and say that the Government will not allow reasonable comment in a newspaper, or magazine, a periodical or a book.
Mr. Desmond: The intransigence of the Government in rejecting this  amendment and the autocratic way in which they imposed the guillotine on previous amendments and are likely to impose it on this amendment——
Mr. Desmond: I have not got the slightest doubt that it will give a considerable amount of comfort to the extremists North and South of the Border whose respect for Parliamentary democracy is most questionable and whose respect for it at the end of this debate will be virtually nil. If in relation to the term “reasonable comment” I make the following statement outside the House, will it be construed as reasonable comment? Recently I said in the House on the debate on the Estimate for the Department of Local Government in relation to housing and squatting:
Recently in the Borough of Dún Laoghaire a particular developer got planning permission to convert a house in Crosthwaite Park into seven flats. Having got the permission he then proceeded to convert the house into 14 flats. He is at the moment charging a rent of £5 to £6 a week for a basement flat and up to £7 and £8 a week for flats on the second and third floors. He is also charging a deposit of £60. He has converted a house of three floors into 14 matchbox flats with 14 tenants and he is getting from £80 to £100 a week in rent.
Mr. Desmond: The reference is column 2297 of the Official Report of 22nd July. I suggest that if, outside this House, I encourage the 14 exploited families in that house to demand back the deposit of £60 and——
Mr. Desmond: If I denounce a landlord who has broken planning permission, who has been fined £10 and a couple of shillings a week on sanitary notices, and so on, and is making £100 a week out of the property——
Mr. Desmond: For the benefit of the Fianna Fáil Party, I will now quote Article 19 of the Universal Declaration of Human Rights. I do not think Deputy Dowling can quarrel with that particular declaration. In relation to comment, the declaration says:
Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of——
Mr. Desmond: The Deputy should not be flippant when it comes to a universal declaration of human rights. There is one country which started on this road, the road on which Fianna Fáil are now starting in relation to this amendment, which finished up in a very weak situation indeed. That is South Africa.
It is an offence for any person to publish or communicate any information or material relating to any military or police matter to another person in any manner or for any purpose prejudicial to the safety of the interests of the republic.
The information is defined as any matter relating to the preservation of the internal security of the republic, or the maintenance of law and order by the South African police. All newspapers must be registered by the State. South Africa has absolute censorship control over books, newspapers, pamphlets, magazines, periodicals, letterpress, printed matter, writing, drawing——
Mr. Desmond: The censorship extends to books, newspapers, pamphlets, magazines, periodicals, letterpress, printed matter, writing, drawing, printing, painting, picture engraving, lithographs, photograph cards, and posters which, in the opinion of the administrator, are deemed to be unsuitable to the native mind and may be immediately confiscated and destroyed by any police officer or postal official duly authorised to do so in writing This is the kind of legislation we can now anticipate with foreboding here in future. That is why this Bill is dangerous to the whole concept of freedom. We have the hypocrisy of Jack Lynch——
Mr. Desmond: ——pressing for the rights of a minority in another part of this country and guillotining the Opposition here when they are fighting to preserve certain rights. The contrast is so obvious it does not require elaboration by me. The one-party-State mentality of Fianna Fáil has shown up. The party have disgraced themselves here in the past few days. This Bill was introduced in July, 1970. It never exercised the mind of the Minister for weeks and months thereafter. We had the Committee Stage in February and March of this year and it was only when the Labour Party and the Fine Gael Party aroused national opposition to the Bill that the Minister, with vindictive haste, decided to press ahead with the Bill and ram it through this House. The Minister met a reaction he never bargained for. This is something that will be remembered for a long time.
Mr. Tunney: Tá sin an-oiriúnach i gcás a bhfuil clóiste againn le cúpla lá  anuas ar an mBille seo. Tá daoine ann agus de réir deallraimh, níl aon iontaoibh acu as a chuid tuairimí féin. Dá bhrí sin, caithfidh siad an tír nó an domhan féin a chuardach chun teacht ar thuairimí daoine eile.
Mr. Tunney: A Leas-Cheann Comhairle, measaim go bhfuil cead ag Teachtaí—agus tá sé iontuigthe—a chuid smaointe a bhunú ár rudaí adúradh cheána féin a bhfuil baint acu leis an alt. Chífidh Teachtaí ar ball beag an bhaint atá ag sín leis an leasú.
Mr. Tunney: Níor nocht an Teachta Cruise-O'Brien a chuid tuairimí féin maidir leis na focail atá i gceist anseo. Bhéinn féin sásta glacadh lena chuid tuairimí féin. Ar ball déanfaimid an focal úd “reasonable” a phlé. Is é an rud a chuireann íonadh orainn nach bhfuil na Teachtaí seo in ann nó sasta a gcuid tuairmí féin a nochtadh Luadh daoine ó gach áit ar domhan ach níl a fhios agam ar luaigh siad a dtuairimí féin. Anois táimse chun mo chuid tuairimí féin a nochtadh agus bainfidh siad leis an leasú seo.
Mr. Tunney: The amendment we are discussing refers to what will constitute offences under this Bill and there is on the part of Fine Gael at least, generally speaking I think, acceptance of the fact that the introduction of this legislation is necessary. So far as the contributions made by the Fine Gael Deputies which I have heard are concerned, they would seem to me to be absolutely relevant and to make some sense. I propose to take issue with them on one particular  point. Great reference has been made to the word “freedom”.
Deputy Cooney, whose contributions I always admire spoke very eloquently last night, indicating to us how we, as members of a republican party, should be concerned about the word “freedom”. I accept that: I think anybody irrespective of what political umbrella he claims to operate under should be concerned about freedom. But he went on to say—this is where I thought he was illogical—that by refusing to allow any Press correspondent to contribute to or encourage people towards committing an offence under this measure we were thereby interfering with freedom. That may be an over-simplification but it is at least a summary of what I think Deputy Cooney said. I thought this rather strange because to me the Bill protects freedom. What the Bill is about is the protection of freedom. Offences under it arise from squatting, from taking something——
Mr. Tunney: Deputy Cooney spent at least half an hour last night making the point that this section interferes with freedom and liberty. My point is that this section protects freedom and liberty. In regard to the word “reasonable”, we always have doubts as to who will interpret this word, as far as the legal men are concerned. There will be many interpretations but I should like to offer my own opinion on that which is reasonable. Any journalist or commentator is at liberty to make any reasonable comment and there will be no bother in his justifying it and I am sure any judge in any court is capable of interpreting the word “reasonable”. Under the Bill I think it would be necessary in the case of any charges being made against any Press commentator that it should be established that what he said was unreasonable and constituted an offence in that it encouraged people to take from others what was lawfully theirs. This is the freedom that I as a member  of the Fianna Fáil Government want Fianna Fáil to continue to observe.
Mr. Tunney: To my mind the amendment is unnecessary and later on I shall be pleased to hear other Deputies indicate how it is necessary. My point is that any judge will not accept that which is reasonable comment as a basis for allowing charges against anybody under this Bill. Deputy Cruise-O'Brien knows that.
Mr. Tunney: I have been listening to him for some time. I would be a greater expert on knowing what he does not know than what he does know because he seems to know nothing except what he can quote from somebody else. However, that is not relevant. I suggested when Deputy Cruise-O'Brien was speaking that it might help him somewhat—but again apparently when it was not written down he could not rely on his own initiative to use it —if he looked at the Irish language and that he might look at the words “mealladh” or “gríosadh” in regard to ascertaining what the word “encourage” meant.
Mr. Tunney: I am taking the word “reasonable”. The Irish word is an easy word which does not tax the mind too much—“réasúnta”. Any observation that will be accepted as “réasúnta” will not constitute an offence.
Mr. Tunney: I was saying that this amendment is unnecessary because it purports to suggest that any journalist would not be permitted to make reasonable comment in certain situations and I was pointing out that the section would not in any way interfere with the freedom of the Press. I should not like to be accused of wasting time discussing this amendment because I realise other Deputies, though they might not have anything relevant to say, might come in with the one objective in mind. They have nothing else to do apparently—there are no outside missions at the moment, there is nobody inviting anybody, at a fee of 80 guineas, to write any articles——
Mr. Tunney: I suppose it is possible also that such a journalist might be accused of writing something which would be unreasonable, or something which might be accepted as encouraging or inciting an offence under this Bill.
Mr. Tunney: The point is whether the people are to be free to live, whether they are to be free to enjoy property to the acquisition of which they have contributed, which they have accumulated or inherited. I am not looking at the gentlemen of the Press——
Mr. Tunney: Ní raibh an Theachta ag éisteacht —“mealladh” nó “gríosadh”. I hope I am permitted to go ahead. Any suggestion from anybody on this side or that side that we  should put the freedom of the people in jeopardy—the freedom of the people is what I am concerned with—should be rejected.
Mr. Tunney: I shall conclude by saying that having listened to Deputy Cooney—it was wonderful but irrelevant—I should like to indicate to him and the House that the freedom which he seemed to want to preserve is our main concern.
Dr. Cruise-O'Brien: The essential point arising on this amendment is this: this is reasonable comment on a matter of public interest, and that is the centre of the amendment. It has been suggested—the Minister said there was no need for this amendment —that reasonable comment is protected by the common law and by general legal conventions. That is all very fine, but that is a reference to the state of affairs that prevailed before the Minister introduced those omnious words “encourage” or “advocate” to add to the present “incitement”. That is what this amendment is designed to meet. I support this amendment. I very much fear that even if it were carried it could not undo the damage which has been done by accepting the words “encourage” and “advocate” which the Government forced through by the use of the guillotine yesterday. Those words constitute an intrusion on reasonable comment on a matter of public interest. When the Government made this intrusion which we are trying desperately to repair they justified it by the claim that “encourage” or “advocate” were the same as “incite”. That mendaciously false claim must be met. Deputy Fitzpatrick met that claim by the application of his legal knowledge and fine legal mind to this matter and I myself by a kind of lexical exploration which was designed to show that “encourage” or “advocates” increased the range of “incites” and marks an intrusion on rights. I embarked on a rather large undertaking to show the full range of  the meanings of the words “encourage” and “incite”, and to show that one was larger than the other. “Encourage” includes “incite” but “incite” does not include “encourage”. I had to speak at great length and use dictionaries. The Standard Oxford Dictionary is the authority on the English language, not me, nor the Minister nor Deputy Tunney. We were proceeding to demonstrate— and it was not a question of denying what the Minister said but of refuting what he said—and to prove that “incite” did not cover the same range of meaning as “encourage” and that “encourage” went further. I was prevented from concluding that demonstration. I intended to go no further than was necessary. I had covered “encourage” and was proceeding to “incite”——
Dr. Cruise-O'Brien: I am willing to accept all the rules of order and I am speaking fully within them. I am speaking on the words “fair and reasonable comment”. My point is that “reasonable comment” will mean something else under the law other than it now means when these words “encourage” or “advocate” are part of the law. That is the truth. I am determined to defend it on this amendment. I will not be checked in a speech relevant to the amendment.
Dr. Cruise-O'Brien: I am not discussing the word “encourage” in itself. I am talking about fair and reasonable comment, the meaning of which has been changed by the change in the law envisaged in the previous amendment, the change of including the word “encourage” under the pretence that it means “incite”.
Dr. Cruise-O'Brien: I will try to make my point clear. My point is that the words “encourage” or “advocate”—those deadly words which are the real substance of this Bill—are relevant to the question of what constitutes fair or reasonable comment because they have abridged the area of fair or reasonable comment. That was their intention. I hope that is now clear. The meaning of what is likely to constitute fair and reasonable comment has been illustrated here by the Minister.
The Minister earlier today quoted with glee from, apparently, the only newspaper which can be found to support him. That is not particularly interesting, and I do not wish to  say anything derogatory about the Southern Star. It is not perhaps an extremely eminent, conspicuous paper nationally, but that does not mean that it is not a good newspaper locally. In parts of its editorial good points were made. But what was very, very interesting and extremely revealing were the bits which the Minister called “the good bits”. The bits over which the Minister gloated and positively slavered as he read them out. These bits shed a great light on the intention of this Bill. This is what the Bill is about. I do not know whether or not Deputy Flor Crowley wrote this editorial; it does not matter who wrote it. I shall read out the parts which are relevant, I do not propose to read a long quotation.
Dr. Cruise-O'Brien: Yes, and the Deputy read it very nicely, too. I shall not be reading out the whole article, which the Chair might object to. I want to read out the bits which the Minister liked, the bits which he brought in at the very beginning of his speech on this amendment, at the core of his conception of the relevance of resistance to this amendment. I know the Chair is not going to rule me out of order.
Dr. Cruise-O'Brien: I am a little and I am enjoying it. If the Minister brings into this House something over which the Opposition can slaver the Minister has put his foot in it and that is what the Minister has done.
Dr. Cruise-O'Brien: I have to refer in this exercise to the use of this little word “encourage” which has been suggested—mistakenly, I think—as being out of order on this section, but the Minister introduced it in his quotation from the Southern Star. Indeed, the good bits in this very interesting editorial in the Southern Star are all about this word “encourage”, what it  means, what it does and what we have now got. The Minister had a right to gloat because he has now got this word. This word “encourage” has cut into the area of fair and reasonable comment and it will soon make, when the second guillotine comes down on Wednesday, its inroad on what constitutes fair and reasonable comment, unless and until, as we hope, the courts will decide otherwise and render their final verdict on the futility of the exercise of ramming through section 4 here with such haste.
The importance of the editorial is the light it sheds on the intention of the Minister in diminishing the area, which will be for the certain limited future we hope, covered by fair and reasonable comment. What is this good bit: “As for the Forcible Entry Bill,” says the Southern Star, “in itself a necessary piece of legislation”—I can understand the Minister liking that—“the section which has created all the hullabaloo—that prohibiting the encouragement of such offences—is vague and open to many interpretations. But again probably necessary.” Notice that the Southern Star with considerable acumen has focussed its attention on this word “encouragement” as the core of section 4, the core of the section we are seeking to amend.
The Minister knows that “encourage” is what it is about; “encourage” is the word which will enable him to get at the people he wants to get at and decide that what they want to say is not fair and reasonable comment any longer, though it might be under the existing law. Note the concentration on “encouragement”, note the Minister's agreement with the concentration on “encouragement” and then note that the rest of this very brief paragraph says that this word “is vague and open to many interpretations”. That is very true. Yesterday I endeavoured at some length to show just how many interpretations it was indeed open to. Deputies will agree they were many and by that very reason it is vague and the Southern Star thinks also necessary. What is necessary about its vagueness and  its openness to many interpretations? That is what the Minister relished in that morsel from the Southern Star, that is where it is going, that is what is happening to fair and reasonable comment in this country.
The Southern Star goes on in the next paragraph to say, “That some newspapers were giving undue prominence to law-breaking of a certain type, to an extent verging on sensationalism cannot be denied.” That is not an important sentence but the next sentence is, “The splashing of these stories all over the front pages of say, the Irish Times—why does he say the Irish Times, why does he not say some other paper, we do not know? “The splashing of these stories all over the front pages of say the Irish Times”— which as far as I know has only one front page—“could not but serve as an encouragement.” That splashing will be encouragement and by the context, if one remembers in the previous paragraph—these paragraphs run close together; that is important—we had the section prohibiting the encouragement of such offences. When the editorial writer referring to the Irish Times says, “ that splashing could not but serve as an encouragement” he does not mean “encouragement” as it was in part of our ordinary vocabulary before it became as well worn as it is now, he means “encouragement” as used in section 4 of this Bill; he means the word we tried to have deleted; he means the word which was inserted by the guillotine without a single argument being adduced in favour of it in one of the most disgraceful Parliamentary performances that has ever occurred. The Southern Star goes on, “and while nobody would advocate suppression of such news”—the Southern Star does not go so far as to advocate the suppression of news; it stops only just short—“the space and prominence accorded could be regarded as tantamount to glorification”.
There will be few Deputies who bore with my long exposition of the meanings of the word “encouragement” yesterday who will not be well aware that anything tantamount to glorification is an encouragement; it emboldens; it makes the heart strong; it is good stuff  in that wide sense of encouragement, which is the wide sense that the Minister aims to get, in addition to the narrow, precise usage of “incite” which we already have.
What is the conclusion of all that? The conclusion of all that is that the Minister who admires these good bits so much, who gloated over them so openly in this House, thinks it will be well if this word “encourage” is interpreted so as to govern the application of the criminal law to the presentation of news, that is to say, the Government will be able to say to an editor, “No, no, not two columns on page 1, one column on page 13. Yes, you may have a news item but not a picture; you may have a picture but not a big picture.” That is what all this is about if presentation of news can be deemed to institute encouragement within the meaning of section 4.
Certainly, I would not have taken up the time of the House—I do not intend taking up very much time—on what the Southern Star said, if that was all. That would be a legitimate expression of opinion, although an expression of opinion with which I would not agree, by a provincial newspaper. It no longer has just that status because the Minister in resisting Deputy Fitzpatrick's and Deputy Cooney's amendments brought this in and he brought it in with unmistakeable approval. He thinks this would be a good idea. It is true that the courts may not construe the word “encourage” in that way but, as I indicated at another time, courts will judge differently on these things. Judges are human beings and each one brings his different philosophy and outlook——
Dr. Cruise-O'Brien: Yes, because although I am sure they try to dismiss specific political considerations from their minds they cannot but be influenced by their past associations. Therefore, they will judge differently on different matters. There may well be judges, who, given this weapon, given this extension of the law which the Minister slipped by us, will use it in  that way. I say advisedly that the Minister slipped it by us because he knew that by forcing the word “encourage” on us, he had no answer and no hope of answering our arguments by any form of logic. He says he was denied an opportunity to speak, but he was not denied any such opportunity. When Deputy Fitzpatrick finished speaking on the previous amendment the Minister could have come in. I sat in my place hoping he would speak because, if he had done so, he would have given me an opportunity to answer. Every Deputy is aware of that situation. I looked vaguely at the door but the Minister did not present himself. He took the length of my speech as an excuse for not answering. He has made generalisations about what I said. He has said that my speech was full of irrelevancies. If that had been so, you, Sir, and the other occupants of the Chair during my contribution, would not have permitted me to speak for four and a half hours. I was allowed to speak not because of any partiality on the part of the Chair towards me, and well the Minister knows that. The Minister dodged deliberately the opportunity of answering the long and relevant arguments put forward by Deputy Fitzpatrick until he could answer them with the guillotine, because that was the only answer for him. The case for these words that would restrict the principle of free comment has never been made.
The core of this Bill has never been defended. The Minister has said nothing but that “encourage” is a more modern word than “incite”. “Encourage” is more modern in usage than “incite” by about ten years of their first usages in the late 15th century. Therefore the sole claim that has been made for this word “encourage”, which is the legal word, is that it is a modern word. It is not a modern word. It may be said that I would have talked for ever and so prevented the Minister from making a case for this word but of course no Deputy could go on for ever.
Dr. Cruise-O'Brien: I made a long and relevant speech for the purpose of demolishing the claim that “encourage” and “incite” have the same meaning. I did this by showing the range of “encourage”, which goes far beyond “incite”. The Minister did not answer that argument and neither did he suggest at any stage that he would answer it. If he had indicated a wish to answer or if there had been a warning that the debate might be abridged, without the Minister answering, if my debate continued, then, certainly, I would have sat down and allowed the Minister to speak because it is most important that he speak on those two words—“encourage or”. If he had wished to say something here today about those words, he could have said so. He could have said: “As I did not have a chance of commenting on the previous amendment——
An Ceann Comhairle: The Deputy is now discussing the previous amendment which dealt with the words mentioned by him. I would not mind the Deputy mentioning the words in passing, but he is continuing to speak on something on which he was prevented from speaking yesterday on a previous amendment.
Dr. Cruise-O'Brien: This amendment is designed to defend reasonable comment. Right? It claims that we ought to get a clause defending reasonable comment into this Bill. Why does it do that? It would not be necessary for it to do that if other words were not included in this Bill. The point is that reasonable comment after the words “encourages or advocates” become law becomes a different thing. A Cheann Comhairle, are you listening  to that, may I ask, or are you going to rule on it?
Dr. Cruise-O'Brien: I was making a point on certain words in the amendment—“reasonable comment on a matter of public interest”. I was saying that this concept of reasonable comment in the public interest will no longer be construed in the same way after the words discussed in the previous amendment become law. That is the relevance of “encourages or advocates” to “fair and reasonable comment”. That is why they come within the scope of a discussion on this amendment. I have no ambition whatever to renew yesterday's debate.
Dr. Cruise-O'Brien: I have been speaking systematically on this amendment. We seem to be living in two worlds. I am discussing this amendment and I am explaining why I cannot discuss it without referring to the words “encourages or advocates”. I propose to use those words because they are relevant.
Dr. Cruise-O'Brien: Why can this point not be understood? The Minister made this point. He said you do not need a section about these. He was for the principle enshrined in this amendment but of course he had to reject the actual amendment: “provided always and it is hereby declared that reasonable  comment on a matter of public interest”—I hope I am in order, this is the wording of the amendment—“in any newspaper, magazine, periodical or book shall not constitute an offence under this subsection”. The subsection referred to is page 3, line 35:
The Minister would have us believe that he does not need to insert these words because there is no problem, as one of his colleagues is in the habit of saying; this principle of reasonable comment is there already, it is protected by the common law. The point is that the law is no longer the same after this Bill goes through and it is because of what is in the other sections of the Bill that it is necessary to include these words. I do not think these words would constitute an effective defence. I also think that these words going out to the public from Parliament in present circumstances will not carry much credibility because the Government have curtailed here, in the most brutal manner, without the slightest touch of fair warning, reasonable comment on a matter of public importance. They pretended that they wanted reasonable comment on a matter of public importance. They said bravely that they would sit here all the summer matching speech for speech and argument for argument. They were brave men.
Dr. Cruise-O'Brien: Why did none of those gentlemen, who are in favour of fair and reasonable comment in a  matter of public interest, give us any intellectual, even plausible defence of “encourages or advocates”?
Mr. O'Kennedy: When I did speak Deputy Cruise-O'Brien in my absence subsequently said I implied that the Labour Party were a “bunch of Commies”. I made no such implication and Deputy Cruise-O'Brien should have the honesty to withdraw this unfounded allegation.
Mr. O'Kennedy: One of the principles of education, the beginning of knowledge, is to know your own ignorance. I recognise my limitations. Perhaps if the Deputy would recognise his we might get somewhere.
Dr. Cruise-O'Brien: The point of my comments is that if this Dáil does not protect reasonable comment on a matter of public interest it is hardly in a position to hold forth on that principle outside the House.
Dr. Cruise-O'Brien: We think we have defended, and are defending on this amendment, this principle of reasonable comment on a matter of public interest. We think we have done that by opposing in detail this objectionable section, by sustaining in detail the arguments for these amendments. One newspaper has argued that we might have saved our breath. I wonder what that newspaper would have said if we had saved our breath, if we had offered only a trivial, perfunctory opposition to this Bill and then sat down. I think they would have said, and rightly so, that we were not doing our duty. I do not think it is enough to leave the defence of reasonable comment on a matter of public interest entirely to the courts. There are three pillars involved here and if one begins to fall they all fall together—the Courts, Parliament and the Press. A free Press, just Courts and a properly functioning Parliament. A part of a properly functioning Parliament is an Opposition that opposes, by reasoned argument, and is prepared to apply reasoned argument at length if necessary against a bad Bill, the point being that if that is done there is less likelihood that legislation of this kind will be brought in here again. Even that Government will think twice before they bring us a new section 4.
Minister for Transport and Power (Mr. B. Lenihan): We are dealing here with amendment No. 9, section 4, concerned with the insertion, as an amendment in that section, of reasonable comment being excluded from the  meaning of the section. This implies that the section as it stands in some way inhibits newspapers from making right and proper and full reasonable comment on any matter on which they wish to comment. The implication in the amendment is that section 4 as it now stands precludes reasonable comment. This is a complete perversion and distortion of the section as it stands.
The amendment also implies that the essential pillars of a free society, referred to by Deputy Cruise-O'Brien, are in some way disturbed or moved by reason of the section as it now stands. Deputy Cruise-O'Brien's very case in regard to his personal definition of “encouragement”, and his view by reason of that that Deputy Fitzpatrick's amendment should be accepted, implies that the most fundamental pillar of our society, the most fundamental guarantor of the essential freedoms enshrined in our Constitution, that is the courts, would interpret “encourage” to mean what he says “encouragement” would mean.
Mr. B. Lenihan: It is absolutely certain that the great institution of the independent courts of our land would not in any circumstances interpret “encourage” as written into this section in the manner mentioned by Deputy Cruise-O'Brien. In my view the fullest and freest reasonable comment one can think of is maintained, and would be retained, by the courts as the preservers of our essential liberty and this would be preserved by the courts in any interpretation of section 4 as it stands.
Mr. B. Lenihan: The thinking behind the amendment implies some weakness, some perversion or some fault on the part of the courts. Our courts have always been independent of the Executive since the formation of the State; they have been so independent as to cause annoyance to  various Executives. That is why courts are there. It is my view that our courts, in no circumstances, would interpret “encouragement” as precluding reasonable comment and this view would be backed to the hilt by any thinking lawyer inside or outside this House, or any person who has any knowledge or association with practice or reporting in the courts.
Mr. B. Lenihan: I am talking on the amendment which was concerned with the necessity to write in reasonable comment, which is a matter fully protected by our independent courts. This view is shared by all right-thinking people. It does not require a lawyer to see that courts on their record of performance since the formation of the State would not interpret the word “encourage” as meaning the exclusion of reasonable comment.
The right to make reasonable comment is enshrined in our society. We have independent courts, an independent Press, an independent Parliament and these are the basic pillars on which our society rests. It is because of these pillars the Executive are restrained— and rightly so—not to pursue any wrong Executive action. This is what our Constitution is about, what representative Parliamentary democracy is about and what society in Ireland is about. Section 4 in no way erodes that situation.
We shall continue to have independent courts, we shall continue to have an independent Press and an independent free Parliament, with a free system of election. The courts have been more than conscientious in their examination of legislation, they have been serious and independent in their criticisms and  comments on the actions of the Executive. It has been the pattern and history of the courts that they are obliged under their terms of reference, set out in the Constitution, to so act and this they have always done.
Mr. B. Lenihan: I shall not listen to definitions of the word “encourage” that may be purveyed by Deputy Cruise-O'Brien. I am concerned about the definition of the word “encourage” that will be adopted by free, independent courts. I am quite certain that the courts——
Mr. L'Estrange: There will not be any independent courts if the Fianna Fáil bullyboys have anything to do with them. The courts are not free and this is well-known. The bullyboys are getting on as superintendents and chief superintendents.
Mr. B. Lenihan: During my period as Minister for Justice, when the courts were under my administration, it was a great privilege for me to have appointed a present judge of the Supreme Court, Judge W. O. B. FitzGerald, who was the outstanding lawyer in the country at the time——
Mr. T.J. Fitzpatrick: (Cavan): On a point of order, is it in order to mention the names of the judiciary here, especially judges of the Supreme Court, and proceed to deal with them one by one, as apparently the Minister intends to do?
Mr. B. Lenihan: He was my choice for appointment, shortly after his  association with the Presidential campaign of Deputy O'Higgins. He is one of the outstanding judges in the country and I am proud that I appointed him.
Mr. B. Lenihan: Amendment No. 9 more than implies that the interpretation by the courts would preclude or exclude reasonable Press comment. Such a situation does not arise under the section, under any layman's interpretation of the section, under a legal practitioner's way of looking at the section, or under the section as it would be interpreted by the courts. It is my opinion that the word “encourage” is well defined in legislation going back to the Offences Against the Person Act, 1861.
Mr. B. Lenihan: This is not the first time the word “encourage” has been written into legislation. The word “encourage” was incorporated in the Offences against the Person Act, 1861. It has been a well known phrase, closely and tightly defined by the courts both here, in Britain and wherever the common law system operates over the years since 1861, in its relationship to any incitement offence. This is related to incitement. It specifically deals with incitement to commit an offence and “encourage” in that sense has been written into statutes since 1861. I have mentioned the first one but it has been written into numerous statutes and has always been interpreted and defined tightly by the courts in the incitement sense.
This is all it means. It has nothing whatever to do with any interference with reasonable comment. These are basic facts and I am giving basic facts to Deputy Cruise-O'Brien. This is what Parliament is about, to engage in basic debate that is related directly to amendments, sections and to the legislation before the House. This comes now to the very important pillar of  society, to which I have not referred yet. I have referred to the free, independent courts. I have referred to the need for a free, independent Press making every and any reasonable comment that the Press may require. I now want to refer to the pillar with which we should all be concerned, this House and Parliament, and the abuse, frustration and perversion of Parliament that we have seen from Deputy Cruise-O'Brien——
Mr. B. Lenihan: Amendment No. 9 implies that reasonable comment, whether in the Press, Parliament or anywhere else, is being interfered with by section 4. It seeks to imply that we are seeking by this section to interfere with reasonable comment.
Mr. B. Lenihan: When I mention reasonable comment I mean in this context reasonable comment in the course of sensible debate in this House. This is a representative parliamentary assembly and it can be frustrated and perverted by the sort of bullyboy tactics we have had from Fine Gael and in particular from the Labour Party over recent days.
Mr. B. Lenihan: I am certain our free, independent courts will fully ensure that the accepted legal tight definition of “encourage” that has been there since the Offences against the Person Act 1861, to which I referred, will continue to be interpreted by the courts as relating to incitement. We have, first of all, written into subsection (1) of section 4 that advocacy and encouragement relating to the commission of an offence will continue to be an offence. Incitement is not written in but it means the same thing in the interpretation of the courts.
Mr. B. Lenihan: This has been written into many statutes over the years. Side by side with the definition of a criminal offence goes the definition of “incitement” that is an allied offence to the actual commission of the offence. These are the facts of life. The courts have interpreted the word “encourage” used in that sense as an incitement offence allied to the actual commission of the offence. The courts have used that interpretation, have adopted it clearly and it is there in numerous statutes and in case law. There is no doubt about it that the independent court in a free Irish society would interpret the definition of the word “encourage” as it has  been interpreted in decisions over many years and as it has been interpreted in relation to its specific inclusion in sections of statutes over very many years.
Mr. B. Lenihan: We have listened to argument and debate in the course of the many amendments put down in regard to this section. We have been subjected to illogical debate which in effect has, as I have said, led to what we have seen here, a perversion of the whole meaning of Parliament. We are here in Parliament to discuss on Second Stage the principles of a Bill, on Committee Stage, the details of a Bill, on Report Stage the further details that arise out of a Committee Stage debate. That is what Parliament is about when it is moving legislation through Parliament. That is exactly what we should be doing here in the interests of the people. We as a Parliament have been perverted and frustrated in regard to our operations in recent weeks by Deputies on the other side of this House who have brought Parliament into disrepute.
An Leas-Cheann Comhairle: Will Deputies please cease interrupting and will the Minister please return to amendment No. 9? Interruptions are disorderly. The Chair wishes to warn any Deputy from any side of the House who interrupts a Deputy in possession that he will be asked immediately to leave the House.
Mr. B. Lenihan: Parliament depends on proper behaviour in the House and observance of the Chair and the Chair's directions. This is what Parliament  depends on, otherwise Parliament is eroded. We have seen here what has happened over recent weeks.
Mr. B. Lenihan: The Minister has not been ruled out of order by the Chair. I am speaking on amendment No. 9. I am speaking to the very fundamental basis of our procedure in this House. An amendment properly debated in this House is part of the essential procedure of this House. Amendment No. 9 and all the other amendments put down on Report Stage are not concerned with the proper procedure which should obtain in regard to a Report Stage debate on legislation that is being examined by a responsible and mature Parliament.
Mr. B. Lenihan: ——that our concern here should be, as a mature and adult Parliament, to ensure that the basic pillars of our free society are strengthened. The important thing is that Parliament conducts its affairs properly, that matters are debated here as they should be debated and that we do not degenerate into a filibuster situation. It is important that we have a free Press, that it will be fully protected by free and independent courts. Let everybody in this House take it  very seriously to heart that what we have been doing in recent days has not helped Parliament. The Deputies in the Labour benches and the Deputies in the Fine Gael benches are responsible for what has happened in recent days. We are concerned to ensure that Parliament is sustained and strengthened, that we have responsible deliberations and that we have an independent Press.
Mr. Enright: The Minister has made quite a lengthy speech but prior to his speech, in interrupting Deputy Cruise-O'Brien, he in fact put his finger on a lot of what has been happening in the past few days. In one off-the-cuff remark he stated: “This is a Parliament, not a debating society.” It occurred to me that, whatever about being a debating society, this is no longer a debating forum. It was the practice for a Minister to put forward a proposition which would be debated and then voted upon. I have been present for most of the discussion during the last few days and I mentioned yesterday that the Minister was absent. I was here this morning and Deputy Desmond mentioned that the Minister was absent. The Minister is absent now.
Mr. Enright: It is important that the Minister for Justice should listen to the arguments propounded here. He has not heard any of the arguments. There is only one official here from the Department of Justice.
Mr. Enright: If the Minister is that busy, he would be wise to leave over discussion on this Bill. It is a waste of time to be discussing this amendment, because no matter what is said this legislation will be steamrolled through. The previous speaker referred at length to Parliament. If Parliament is to retain dignity and decorum it is essential that the Minister concerned be present when a Bill is being put through.
Mr. Enright: One of the main reasons for bringing forward this Bill was the Hume Street affair. When you are a long time in the House, like Deputy Davern or other Deputies, you sometimes become far removed from what is happening. Most of the people involved in the Hume Street affair were young students. Perhaps their idealism ran counter to the feelings of speculators, builders and so on.
Mr. Enright: At that time, the newspapers, the Evening Herald, the Evening Press and so on, were able to state their views whether they were for or against what was happening. In the Evening Press of 9th June, 1970, the heading was “Hume Street Wrecking.” Again in the Evening Herald of Monday, June 8th, the heading was: “Students' Stand against Wreckers.” I have travelled very little around the world and have had very little opportunity of seeing the architecture, landscapes, streets and so on of other countries but over the last number of years I have seen may wonderful buildings in Dublin destroyed. I believe the students who, according to the Evening Herald were standing against the wreckers at that time were performing a service which will be remembered for many a day.
Mr. Enright: I believe that what was said in the article in the Evening Press of 9th June, 1970, was reasonable comment. Therefore, I believe that what I am saying is relevant. When one visits other countries and sees that the Governments have taken an interest in preserving——
Mr. Enright: I believe it is quite in order for me to speak about the comments that were made in the papers at that time. The reporting of these incidents did a service to this country. For this reason I am in full support of this amendment. We should consider the question of comment. The Government are completely insensitive to  public feeling and to public opinion. The Government have been in power for 13 years. They are in complete control of appointments in the Army.
Mr. Enright: I will summarise what I intend saying. A democracy requires a certain amount of latitude in which to work. It requires a separation of the Army, the Judiciary, the Legislature and the Press. I believe that this amendment takes away the power of the Press.
Mr. Enright: This Bill and particularly this section takes away the powers of the Press. Having almost complete control over the other arms of a democracy, it is completely wrong that a Government should be able to control what should be and what should not be published in the newspapers. Therefore, I feel I am in order.
Mr. T.J. Fitzpatrick: (Cavan): Surely the Deputy is entitled to point out the importance of the Press, the necessity for the Press, and the necessity for a free Press to be able to comment on all matters concerning public opinion?
Mr. Enright: I believe it is wrong that the Government should have complete and unfettered control of the Press. A Government already in control of the police, the Army and the Civil Service should not have complete and unfettered control of the Press. In 1967. Deputy Blaney was Minister for  Agriculture and Fisheries. At that time the NFA were fighting to bring the farmers' incomes up to the level of other incomes in the community. They were fighting to prevent the farming community from being driven out of existence. At that time The Farmers' Journal was one of the papers which supported the farmers' rights and the NFA. The Farmers' Journal is not in any way tied up with the NFA. It is owned by the National Farmers' Trust Limited. It is a non-profitmaking newspaper. It is a trust company.
At that time The Farmers' Journal had been commenting on and pressing the point of view of the farmers and criticising the attitude of the Minister and the Department. It was perfectly within its rights in the criticisms it had to offer. It is a farmers' newspaper and it was putting forward the point of view of farmers. The farmers' case was urgent because year after year the numbers engaged in agriculture were being reduced and farmers' incomes were dropping off. The Farmers' Journal felt that it was essential that somebody should put forward the point of view of the farmers.
A newspaper has different sources of income. It can survive on its sales but a very important factor in its everyday running is the advertisements it receives. The Farmers' Journal got advertisements from the Department but the then Minister—I can hardly say in his wisdom—in his vendetta against the farmers decided to withdraw his Department's advertisements from it. In the issue of Saturday, 12th August, 1967, there was a heading: “The Department withdraws its advertising from the Journal.”
Mr. Tully: On a point of order, if the text of the article under the heading which the Deputy has just read out criticises the Government for doing what they did in unfairly taking away the advertisements, surely this is similar to what is proposed in this section. I think the Chair is being a little bit too strict particularly in view of the wide field covered by other speakers.
Mr. Enright: The Farmers' Journal was commenting on a dispute between the NFA and the Department of Agriculture. It is fair comment to suggest that it might be considered that the Farmers' Journal was encouraging or advocating something. I would not go so far as to suggest it was inciting although I believe this is what the Minister was suggesting at the time. What the Farmers' Journal was accused of at the time will be an offence under this section. Therefore I believe I am in order.
An Leas-Cheann Comhairle: The Chair understood that the Deputy was about to deal with the financial affairs of the paper in question because of the withdrawal of advertisements. The Chair is now telling the Deputy to stick to comment.
Mr. Enright: At the time there was a dispute between the Farmers' Journal and the Department because the journal commented on the dispute between the Minister and the farmers. The advertisements were withdrawn  and that was a way of hitting at the Farmers' Journal. The advertisements were first withdrawn in March, 1967. This was brought to light in the journal of 12th August, 1967. The Parliamentary Secretary to the Minister for Agriculture and Fisheries is present and he will probably remember that at the end of 1967, early in 1968 and into the spring of 1968 foot and mouth disease was rife in England. The farmers here were terrified that we would be hit with the same scourge. At the time the Farmers' Journal had a circulation of 67,459 which would give a readership of well over a quarter of a million. This was an important organ carrying its views into farmers' homes. For well over a year after this the Minister did not deem it worth his while to restore the advertisements to the Farmers' Journal.
Mr. Enright: The Farmers' Journal was commenting reasonably on the Minister's attitude towards farmers in general. It was supporting the farmers. The Minister was wrong to cut off advertisements from an influential paper. That was petty and stupid but it was all the worse because it could have carried advertisements about the foot and mouth disease into the farmers' homes.
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