Thursday, 30 November 1972
Dáil Eireann Debate
“Dáil Éireann declines to give a Second Reading to the Bill on the ground that it contains matter which is unnecessary and excessive and which is repugnant to basic principles of justice and liberty and the long established fundamental rights of citizens.”
Mr. Gallagher: In the few minutes at my disposal last night I adverted to certain elements here who would subvert the powers of the State and I also stated that I was behind any legislation designed to secure and defend our democratic institutions. I  said I did not think that the Government were bringing in the Bill merely for the sake of an exercise in verbal gymnastics or for the purpose of having a bit of fun here. This is a serious Assembly and, over the last three years, we have all of us listened to demands from the Opposition side of the House that the Government should do something. We have had attempts to bring certain people under control, but none of these attempts were effective in achieving our aim. The accusation made yesterday by Deputy Ryan cannot, therefore, be said to hold much water. If the Minister and the Attorney General are unable under present legislation to find the law sufficient for their needs, then it is our duty here, the duty of the Government and of Parliament as a whole, to ensure that there is sufficient legislation in the hands of those responsible to protect and preserve our democracy.
I was surprised at many of the statements made, particularly the statements made by that well-known literary figure, Deputy Cruise-O'Brien. He used some nice literary phrases. He said this was an attempt to improve the image of Fianna Fáil and to justify our alleged inactivity over the last few years. He used the word “cosmetics”. Whatever cosmetics may be necessary to improve the image of Fianna Fáil, I can assure the Deputy that it would take quite drastic plastic surgery to improve the image of the Labour Party. That goes for Fine Gael also.
Fianna Fáil do not have to introduce legislation to improve their appearance or to redeem their reputation. The referendum on entry into Europe gave the Taoiseach a vote of confidence and, if that were not sufficient, then the Cork by-election certainly strengthened his hand quite considerably. The Government stand as a stable party. I was surprised to read the headlines in last evening's papers. Whether they were inspired or otherwise, whether there was a leak or whether there was not, I do not know, but it is rather a pity that at times like these—they are nearly emergency conditions—there should be these divisions even considered, never mind being voiced as real.
 The main Opposition speaker yesterday indicated a certain amount of dissatisfaction over supporting this Bill and over the attitude of his party. I support this Bill simply and solely because I want to secure democracy here. I want to ensure that it will endure. If we procrastinate here, either as a Government or as a Parliament, and deny the officers of the law sufficient legislation to preserve democracy we will lose it altogether.
It is fair comment to say that we never can and never will be able to enjoy complete freedom. At any stage we have only a limited freedom and, should the need arise, we must limit that freedom further in order to protect the sovereignty of the State and preserve democracy. There are forces at work today which do not recognise democracy, forces which will use democracy to destroy democracy. It is up to every Member of this House to ensure that that ambition is not attained, even if that means some slight curtailment of liberty and, perhaps, some legislation of a nature we might not really like.
It is alleged that there are ominous overtones. In the 11 years I have been a Member of this House most legislation has been attacked on the basis that it has ominous overtones. Yet, legislation goes through and there is no ominous effect. As a matter of fact, the complaint is very often made subsequently that the legislation is not strong enough. I am very pleased that the Opposition parties have decided to oppose this measure because I want this measure to be fully explained to the Irish public. I could not and would not support Deputy Donegan's argument that the leaders of the main Opposition parties could have formed a nice little circle and that this could be brought in in a nice palsy-walsy way. I want this Bill fully discussed. I want it discussed as between the Minister proposing it and the Opposition opposing it. Whether or not it has weaknesses, it is the type of legislation we need at this time. I would say to the Minister that, if there is any virtue in the arguments put forward  by the Opposition he should accept them——
Mr. Gallagher: ——if he sees that they can be accepted. I want to ensure that we have legislation to maintain law and order. It is utterly and absolutely disgraceful that the Judiciary should be intimidated whether they are presiding in court or in their own homes, or that their wives and families should be threatened with damage if the judges acted in a certain way. It is high time that an end was put to the intimidation of Ministers and Deputies. They have been intimidated in their homes. They have a job to do and they are doing the job they were elected to do.
When a small percentage of the population decide: “We do not like democracy; we do not like the way it works; it is too cumbersome; there is too much work and too much argument in it; let us have the good old Stalin system; let us have the good old Hitler system; let us issue orders, bring in the jackboot and silence opposition”, we must guard against that. This would appear to be the new image of the new generation and the new political parties who are unable to make an impression on the population, and who would denigrate the population as being some form of stupid imbeciles who are not mature enough to make a decision as to what type of government they want.
The decision rests with all of this House. I am glad the Opposition are opposing the Bill and I hope their opposition will not be a denigration of past Acts and laws, but that we will have a constructive and helpful debate, and that they will seek whatever amendments may be necessary to round off this Bill into an effective measure. Far from being the tyrant some people would make him out to be, the Minister for Justice has considerable courage and integrity and intelligence. He will co-operate with them and ensure that democracy will prevail here.
I never thought that I would see as  I went out through the Merrion Street gate last night such a mobilisation of troops with shields and other equipment to withstand a barrage. I never thought that any Irishman whatever his breed, colour, seed or generation would see a scene like the one we saw when the Mater Hospital, a place of refuge and healing, was assailed by hooligans——
Mr. Gallagher: That is rather lopsided humanitarianism. He has the right to his opinions. I hope he will accept our right to our opinions. Deputy Ryan fulminated about there being sufficient legislation on the Statute Books to deal with these matters. It has been found that this is not the position. I have no doubt that the Department of Justice, the Minister and the Attorney-General's Office have at their disposal adequate legal advice. Yesterday evening Deputy Donegan quoted the Offences against the State Act, 1939. I know he is a businessman and he may well be a lawyer. I do not  know. I am not denying him his right to interpret the law as he sees it. He said the Taoiseach stated that a section of that Act is not in accord with the Convention on Human Rights and that, in his view, that is not so. I have 25 years experience of lawyers of repute and I must confess that I never got a straightforward opinion from them yet. It was always laced with qualifications.
Mr. Gallagher: I never got a clear-cut decision from them. It was always qualified, even in relation to simple little Acts which one would imagine they would be able to interpret. I was always told: “It depends on the evidence. It depends on the particular case. It depends on the judge.” There were so many qualifications that I decided that lawyers were not the best men to give advice. In any case, few lawyers give advice. They usually call in barristers, or senior or junior counsel, depending on the gravity of the case.
The Minister for Justice cannot act unless he is given a very strong opinion on how he should proceed. He would be holding the law up to odium and ridicule by bringing prosecutions on which convictions cannot be secured. I cannot see the Minister doing other than what he is now doing after receiving legal advice from all the resources available to him. Deputy Ryan is a young lawyer of some experience. For over three years he has been urging us to take certain action. It is rather strange that at this emergency hour he should now enlighten us all on the fact that the laws have been there all the time. I think he was speaking as a politician rather than as a lawyer. It would have suited him better if we were to suspend the rights of these people and intern them without trial. He would have liked that better. It would give Fianna Fáil a worse image than the image Deputy Cruise-O'Brien alleges we have. This would have suited him and many members of the Opposition.
I am glad the Minister is seeking to deal with them within the law. When this Bill goes through these men will  be brought before a judge and, as the Minister said, the judge is bound by nobody and will depend on his own skill, competence and conscience in making his decision. It is, indeed, regrettable that we find it necessary to bring in this Bill and it is laudable that the Government have held out for so long against so much pressure before bringing in this type of legislation. Nobody can accuse them of acting in haste. They are acting in time, but no more than in time, to give themselves the tools to preserve democracy. I hope and pray that this will bring peace.
There are those who talk about Northern Ireland and about uniting the country. I am as certain as that I stand here that this country will be united, perhaps not in the next 10 or 20 years, but I can see the foundation stone of that colossus of sectarianism being removed. Indeed, Stormont has been prorogued. The Unionist Party is itself fragmented and in pieces. Whatever system will replace it, I do not see it ever being the same again.
The destruction of the Northern Ireland Government was built into it right from the start. The Roman Empire lasted for 400 years but it, too, collapsed with all its power and all its might. It collapsed because its collapse was built into it. The injustice perpetrated by Stormont over 50 years had to have its day of reckoning and that day of reckoning came when the civil rights marchers marched and the authorities tried to deny them the right to march and they had no other course but to rise up out of their chains to show some protest against the many, many disabilities and the many years of the jackboot pushing them into the ground. If it was not the jackboot, it was unemployment driving them out of the country or unemployment leaving the men on the dole and the women in the factories.
The whole system of society in the North is rotten and is seen to be rotten and is collapsing like the rotten edifice it is. It did not have a heart, it did not have a thought; it only had a belief in maintaining and retaining power for its own benefit, for just a few. The terrible calamity in the North of Ireland  is the abysmal ignorance of the majority and the masses. They are foolish to be led along, by sectarianism and other means, to support and continue to support a party that should never exist in that form and which grew into the monster that it did. I hope we will long preserve democracy and freedom and that majorities and minorities, wherever they may be, will get equal and fair treatment and that we will see peace some day.
Believe me, it was peace that brought down the Roman Empire, peace expressed in Christian principles and Christianity. Christian principles and Christianity will destroy ultimately the Unionist Party and sectarianism in the North of Ireland, when people come to recognise that they cannot worship the golden calf and that Christianity is the only way by which peace and justice for all will be achieved.
I see no danger in the introduction of this Bill. There was a great bruahaha over the Forcible Entry Bill. I am pleased to note that since that Bill became law the illegal occupation of private property has ceased entirely. That Act, for all the opposition, seems to be working well and I have no doubt that the Bill before the House will work.
In conclusion I would ask the Minister to build into this Bill a limit of, say, two years or five years, so that it could be removed. The Bill gives certain powers in an emergency situation to superintendents of police. I will be supporting this Bill but I would ask that as soon as possible those special powers be taken away again from superintendents of police. I wish the Minister success and I hope there will be a long and good debate. In a democracy, there must be debate but I want responsible debate from the Opposition, not negative and destructive comment. This is a Bill that I would prefer not to see put on the Statute Book but, as it is so necessary to preserve democracy here, I will support it.
Mr. P. Brennan: Like Deputy Gallagher, I hope time will be given for the House to discuss this Bill and that there will be no question of  agreement being made for a closure. I want to make that statement, at the outset, arising out of Deputy Gallagher's remark.
When I received the Bill by post on Monday morning, I did something that I had never done before, I sat down immediately to read the Bill because there had been speculation in one of the Dublin Sunday papers as to the likely contents of the measure introduced last week.
I have not any legal experience or legal training but it was not very long until I realised that it was not necessary to have legal experience in order to appreciate what the Bill meant. The Minister yesterday said that he had circularised the Bill without any comment from him. How right he was, because there was no need; it was spelt out loud and clear to me as an ordinary lay person what the full contents of the Bill were. To be quite honest, I felt that the Fianna Fáil Government must have gone mad that they should think up such a Bill and think that they could bring it into this House and get away with it, or else, that they were legislating here for the big heads of the British Government.
As I read the Bill then and as my impressions of it are, the Bill is unacceptable and it will not be acceptable to me in any amended form. I want to make that perfectly clear. It stinks, in my opinion. It is not easy to describe the kind of State we will have here if this amendment of the Offences against the State Act is allowed to pass through this House. Deputy Carter yesterday mentioned something about a police State. I did not get the full statement. That is one way in which the State could be described if this Bill is allowed to pass.
I am not alone in that thinking because many people in my constituency have been in touch with me during the past couple of days requesting me to oppose the Bill. I have had representations from many more people than ever before in my 18 years experience in this House. However, it was not necessary for them to approach me because my mind had  been made up already but their representations counteract the arguments being made here by the Minister and the Taoiseach to the effect that the campaign that was launched against these proposals by the Press and by those who are referred to as “leftists” is an indication of the type of people who oppose the Bill. The people who come to me are ordinary citizens and with one exception all of them were workers for Fianna Fáil up to the 1969 General Election and for all I know may very well work for the party again at the next election. These people are opposed to this measure because they have no wish to live in a police State. Yesterday I had a letter from an officer in the FCA asking me to oppose the Bill. Will anyone try to suggest that he is the type of person who would wish to bring down the institutions of the State? I had a phone call from a high ranking civil servant with a similar request. All of these representations bear out my own thinking on the matter.
Proposals of this nature should not be before us because they are seeking to give extraordinary powers to the Garda Síochána, powers which I do not believe the Garda wish to have. Our police force are highly respected. It has been my privilege to know many members of the Garda Síochána. I have been acquainted with them from my days in the Army through sporting activities and as a Member of this House. The integrity and sincerity of the vast majority of them cannot be questioned but, unfortunately, there is always the odd one who is unsuitable and this is the type of person who should not have the power that would enable him to point a finger at somebody and accuse him of being a member of an illegal organisation which accusation might result in that person being sentenced to six months imprisonment. The Taoiseach has said that a witness would be subject to deep cross-examination but from reading reports of court cases during the past two or three years I know that it is very easy for a policeman to claim privilege. It has not been beyond them to do that in the past and I have no doubt that  they will do it in the future, too, so that the ordinary individual would not have a chance.
I shall not go into the details of the Bill section by section because that has been done already by Members who, by reason of their legal background, are well qualified to do that. We are living on an island which has a population a little more than four million people. The island comprises two States which, between them, have more suppressive legislation than have all the countries behind the Iron Curtain. Last week Mr. John Hume spoke at Oxford. I congratulate him on his speech which was in line with my own thinking and which, in my view, represented the views of the vast majority of the Irish people. During the debate Mr. Hume reminded us that the Prime Minister of South Africa would be glad to sacrifice all the repressive legislation on his statute books for one section of the Special Powers Act. That gentleman, no doubt, would be prepared to go to great lengths if he could have a section of this Bill as proposed.
We talk of the free world and when we do so we think in terms of our own country but there will be no freedom for our citizens if these proposals are accepted. There has been reference in the House to Fianna Fáil's association with the IRA. I am the son of an Old IRA man and I am very proud of that but I stand here today in my own right. I was brought up in the Republican tradition and I have no doubt that my late father would support me all the way in my opposition to this Bill because he would never have advocated repressive legislation.
I am convinced that these proposals were brought forward in an effort to appease Mr. Heath. It is more than coincidence that after every meeting with the British Premier, the Taoiseach took action of some kind on his return in an effort to suppress the people of this country. I happened to be in hospital about two years ago when I heard talk of internment. Was it coincidence that at that time the Taoiseach had returned from the UN where  he had met Mr. Heath? Members of the Government appeared on television to tell the Irish people and the world generally that 80 per cent of our people were behind the Government's proposal to introduce internment but that did not come off, the reason being that the public would not accept it. I am convinced that the Taoiseach had given an undertaking to Mr. Heath that he would introduce internment. Another matter of note was that the Taoiseach decided to go alone to the Chequers meeting. He did not take his Minister for Foreign Affairs or any other colleague with him but Mr. Heath called in Sir Alec Douglas Home and other members of his Government who had responsibility for Northern Ireland affairs at the time. My view is that the Taoiseach did not wish any colleague of his to be present when he would be told by Mr. Heath that he had not lived up to his promise.
Mr. P. Brennan: Only the week before last the Taoiseach went again to meet Mr. Heath and again I am convinced that he could not have gone to that meeting unless he was seen to be doing something regarding the IRA and what he decided on was the arrest of Seán Mac Stiofáin. This was done despite the fact that the Minister for Justice, only a couple of weeks previously, had indicated on television that they could not arrest Mac Stiofáin because they had nothing on him or words to that effect. We did not have to have this legislation. We were operating under the Offences against the State Act, 1939. Seán Mac Stiofáin was arrested, he was charged after something like 48 hours and he was sentenced to six months' imprisonment. That was done despite the fact that a fortnight previously the Minister for Justice did not think he had anything on him. What the hell more powers does he want? If he was able to get the big fish, as far as Mr. Heath was concerned, and succeeded in putting him in prison for six months under the existing law I do not know what he wants this legislation for.
It is all too much of a coincidence.  Deputy Seán Sherwin reminded me of that when he was speaking yesterday. The archenemy in this country, as far as the British authorities were concerned, was Mac Stiofáin, because he was born in England. Members of the British Conservative Party have on more than one occasion said that the man who was leading activities here was not even an Irishman. The same was said about the late Erskine Childers. There was the very same type of carry-on 50 years ago in relation to Childers.
Mr. P. Brennan: I am saying what was said about Childers in London and by the politicians in Dublin at the time. He was a murderous renegade, according to Churchill, he was a damn Englishman according to Griffith but in my book he was a very good Irishman. They succeeded, anyway, in liquidating him at the behest of the British Government. They were under pressure to do it and they succeeded in doing it.
It is too much of a coincidence that we now have this man in jail with people like Deputy Desmond and all the rest having their whack at him. I do not know the man good, bad or indifferent. I do not know that I will ever meet him but I know that he is in jail today because Mr. Heath decided it. There was adequate legislation here to do that and I am not prepared to give this Government or any other Government any more.
I have been 18 years in this House. For 17 years I answered the Whip of the Fianna Fáil Party loyally. I worked hard for them. I had my differences with them. There was an occasion here about 12 months ago when I was not prepared to walk into the division lobbies with them on a certain motion. The result of that is that I am out here now. I am not taking this stand today because I have a chip on my shoulder. I have fairly consistently supported the Government  over the past 12 months. I am taking this stand today because in my opinion this piece of legislation strikes at the very roots of democracy and I am not prepared to stand over it.
I have a feeling—I hope I will be allowed to say this without interruption —that there are people in the Fianna Fáil Party who are opposed to this measure. I know that if it is pushed to the House, people will walk into the division lobby in support of it against their better judgment. I know that happened before. I am asking the Minister present, and through him the Minister for Justice and the Taoiseach, in God's name to withdraw this Bill. That is the only thing that can be done about it. There is every reason why they should withdraw it. They have all the powers they need to uphold law and order. They have the Offences against the State Act, 1939, which has served many Governments over the past 30 years and I do not see that the need is any greater now than it was any time in the past to strengthen the provisions of that Act particularly along the lines which are proposed here.
I am making an honest and sincere appeal to the Taoiseach and his Government to consider this Bill over the week-end and do the right thing. The right thing would be to withdraw it. It will not embarrass me but do not ask any more of your men to do something that in their hearts they do not want to do.
Mr. Enright: The Fine Gael Party have tabled an amendment to this Bill stating that they believe this Bill is repressive legislation. I believe it is. The Fine Gael Party since the foundation of the State have at all times upheld the security of this State. For many years there was a taunt thrown at the Fine Gael Party that they were the law and order party because on every occasion when it was necessary they voted for what they felt was right. This party at all times put country  before party and that is the great test of any party. In any country it is the great test of a Government. We have at all times upheld the security of the State and the freedom of the individual. When one is faced with a Bill such as this, one must ask oneself whether it would cause more harm than good. At present there is sufficient legislation on the statute book to ensure the maintenance of law and order if the Garda and the Government carry out their duties.
I shall briefly recap on the situation in regard to the Offences against the State Act, 1939. In looking at the Bill before the House one must also look at the legislation already available to the Garda Síochána, to the Government and to the judiciary. To mention some of the offences at present, I refer to Part II, section 6 which deals with usurpation of functions of Government and which says:
Every person who usurps or unlawfully exercises any function of government, whether by setting up, maintaining, or taking part in any way in a body of persons purporting to be a government or a legislature but not authorised in that behalf by or under the Constitution, or by setting up, maintaining, or taking part in any way in a purported court or other tribunal not lawfully established,...
The net effect is that for such conduct the person is guilty of a felony and liable on conviction thereof to suffer penal servitude for a term not exceeding ten years or to imprisonment for a term not exceeding two years. For the usurpation of the functions of government at present a person may be sent to jail for a period not exceeding ten years.
Every person who prevents or obstructs, or attempts or is concerned in an attempt to prevent or obstruct, by force of arms or other violent means or by any form of intimidation the carrying on of the government of the State or any branch (whether legislative, judicial or executive) of the government of  the State or the exercise or performance by any member of the legislature, the judiciary or the executive or by any officer or employee (whether civil (including police) or military) of the State of any of his functions, powers, or duties shall be guilty of felony and shall be liable on conviction thereof to suffer penal servitude for a term not exceeding seven years or to imprisonment for a term not exceeding two years.
Section 9 deals with interference with military or other employees of the State and it says that a person who engages in this shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.
Subsection (3) provides that every person who contravenes the foregoing subsections of this section shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding £100 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fine and imprisonment.
Section 16 of the Offences against the State Act, 1939, deals with secret societies in army or police and a person who forms or organises or attempts to form such a society or takes part in forming it or organising it or induces or solicits or assists any member of a military or police force lawfully maintained by the government to join any secret society shall  be guilty of a misdemeanour and shall be liable on conviction thereof to suffer penal servitude for any term not exceeding five years or imprisonment for any term not exceeding two years. The administering of unlawful oaths and so on is also dealt with.
I have just read some of the offences and the sentences for people found guilty of them—ten years, seven years, two years and heavy fines. Very drastic powers are given and I think these are sufficient, if properly implemented. If the State looked after these matters properly and if the police force ensured that these offences were properly investigated and if the cases were properly presented in court and if the Government permitted it, I believe there is sufficient power here and sufficient approval by the House for obtaining convictions for any of the aforementioned offences.
As regards the legislation which is now before the House, I believe that it provides powers that are excessive and dangerous and which at the present time may do a great deal of damage. In regard to section 3 (b) dealing with evidence of membership of an unlawful organisation it is stated:
In paragraph (a) of this subsection “conduct” includes omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.
Mr. Enright: If a person omits to deny it this will be regarded as “conduct” and if he then denies it the fact of such denial shall not by itself be conclusive. This is serious. Continuing with section 3 (2) we find that it reads:
Where an officer of the Garda Síochána, not below the rank of chief superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.
A person stating that he believes a person was a member of an unlawful organisation—such a statement shall be evidence that he was then such a member. I refer to the Minister's brief in regard to this matter where he deals with this subsection and says that it extends the rule of common law evidence under which a witness's opinion as to a fact is admissible evidence to prove the fact only in certain circumstances, in particular in the case of an expert witness. This is without doubt hearsay. The evidence comes through to the chief superintendent from many people. The chief superintendent then gives this evidence and if the person accused asks him for proof there is a grave danger —and this is one of the most serious points about the Bill—that the chief superintendent may say he has conclusive evidence and when questioned further, may plead privilege. That requires some safeguard.
I do not intend to go back too far but I merely mention the Public Accounts Committee. There was a man, who may or may not vote with  the Government tonight accused by a superintendent at that committee who pleaded privilege as to where he got his evidence. One of the persons mentioned was Deputy Haughey and the other person involved was Chief Superintendent Fleming who claimed privilege on this matter. It is not for me to argue the rights or wrongs of the matter at that time but Deputy Haughey later said he was very aggrieved. This can happen at some point in time in the case of a person who may be brought in and charged. The chief superintendent will have his evidence handed to him by different people and the accused person will have no opportunity of cross-examining the person who gave the evidence to the chief superintendent.
It is difficult to get this point across, but what I am saying is that the person who gives the evidence to the chief superintendent may not be in court to be cross-examined on the point. This is very important because somebody may have a grievance possibly against somebody in this House for political, religious or economic reasons, may have a very strong dislike of a particular person, and he goes to a memof the Special Branch or the Garda Síochána and says that this person has been away for long periods or may give some other reason. That member then goes to the chief superintendent and says that this is the position. I must say that I have at all times had the highest possible respect for the Garda Síochána of all ranks, from the Commissioner down to the ordinary guard, or from the ordinary guard up to the Commissioner, whichever way you wish to put it; but they are liable to err on occasions and a person in respect of whom wrong information has been given is not in a position to cross-examine. That is a very dangerous precedent.
The section sets out that if the chief superintendent believes that the accused was at the material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member. I am a solicitor and I am not saying that what I am putting forward is 100 per cent right. I am endeavouring to give what views I have on the matter and I would hope  that what I am saying is not prejudiced or political because I am endeavouring to be fair and not political. You have the situation in a district court, a circuit court or a high court in which a certain amount of evidence is tendered on behalf of the prosecution, and at this stage, once the evidence is given, it is up to the defendant to prove his innocence.
Reading the letters columns in the three papers today, I find one very interesting letter which endeavours to prove something of what I have been saying because I have been trying to put my point fairly from this side in pointing out the danger and the difficulty facing a person involved when such evidence is given in that the onus of proof then falls back on to him. The chief superintendent gives this evidence and it is then up to the defendant to prove himself innocent. The letter is from William Sweetman of Cranford, Taney Road, Dundrum, Dublin 14, in today's Irish Times on page 13. It is the first letter in the letters to the Editor section and the heading of the letter is “The Bill”. I have met this man and his honesty and integrity are beyond challenge. I have the highest opinion of him, as have certain members of the Government party. Watching him practising in court, I found him at all times fair and reasonable in all his decisions. He is a barrister and a former member of the editorial staff of The Irish Press and I believe him to be a justice of wide experience.
I do not believe that I, or indeed any of your readers, could possibly prove that we are not members of the Provisional IRA any more than we could prove that we are not members of the British Secret Service. Both are secret organisations believed to be active in this country, and it would be absurd to think that either of these organisations would be willing to disclose to a court a comprehensive list of their membership. Thus anyone is liable to conviction and punishment for not denying a “published report” or because a chief superintendent  believes him to be an IRA man. This goes, of course, for women also.
The object of this strange legislation appears to be to give power of internment of suspected IRA men to the police, for whose actions the Minister is responsible, while making a clever and ruthless effort to pass the onus of making the order for imprisonment to a judge for whose actions the Minister is not responsible.
Every judge, before his appointment, makes a solemn declaration that he will, without fear or favour, administer justice in accordance with the law. But what can he do if faced with what many lawyers believe, and perhaps he himself believes, to be an unjust law? Each judge must handle that dilemma on his own.
The second paragraph of that letter shows the difficulty of proving that you are not a member of the Provisional IRA. If a chief superintendent gives evidence that you are, the onus of proof falls back on you and you have a situation in which the evidence has been given against you and it is up to you to get yourself free. This man says he does not believe “that I or any of your readers could possibly prove that we are not members of the Provisional IRA any more than we could prove that we are not members of the British Secret Service”. It is also pointed out that they are secret organisations. This is a very dangerous situation where one has to prove he is not a member. At any particular point one may find this absolutely impossible. The courts are being used to allow a person to be convicted on evidence that is very dangerous. There is a danger of interfering with our courts which  have withstood the test of time. I ask the Minister to consider this particular section carefully.
Deputy Corish mentioned last night that this section smacks of internment. I myself also feel that that is so. It makes it impossible for a person to prove himself innocent. It is window-dressing and shadow-boxing to cover internment.
Mr. Enright: This section has all the appearance of internment. Would the Minister consider withdrawing this Bill? There is sufficient legislation on the statute books of the Dáil. The situation has been well-contained and legislation of this nature may just be the light to the fuse. I mention this as a warning. There is an inherent danger in all this.
Mr. Enright: There is sufficient legislation on the statute books which, if properly implemented, would ensure that this does not happen. I ask the Minister and his Government to consider withdrawing this Bill.
Mr. Enright: We would be in a serious situation if this Bill is passed. I ask the Taoiseach and the Government to withdraw it. The Taoiseach made a request a year ago to withdraw something and his request was listened to. If the Garda force are not sufficiently strong in number I would ask the Minister to increase that force. People do not mind paying for protection and security. The increase in crime in this country is noticeable. It is in no way connected with offences against the State. The increase is frightening. If necessary the Garda force should be increased to ensure that the law is administered to its fullest extent.
Deputy Gallagher is not in the House at present. He mentioned that there was no time limit in this Bill. There should have been some time limit but even if there was I would not be in agreement with it. I could not see myself supporting this Bill for the reasons I have given.
Minister for Labour (Mr. J. Brennan): This is a sufficiently important piece of legislation to warrant all of us saying something about it particularly when we listen to speaker after speaker referring to what the Taoiseach is doing and to what the Minister for Justice is doing. This legislation comes from the Government, unanimously supported by them and by the Fianna Fáil Party. Deputy P. Brennan said he knew there were Deputies who would be dragging their feet about this. No Deputy has any doubt about the need for this legislation and the support it must get.
Many red herrings are being dragged into the discussion by people who know well the sheer hypocrisy of what they are talking about. Is the legislation necessary or not? Are we to allow our institutions to be eroded by the type of thing which we are seeing on the streets in Dublin, by the people who would humiliate our police force and kick them around the streets? Are we going to take powers to ensure that we can deal with situations of that kind? That is the issue. If we do not pass this legislation we will leave ourselves stripped of any power to deal with any situation which may develop in the time to come. We were elected by the  majority of the people to rule this country. We were given an explicit mandate to do that, to protect the institutions of the State and to see that the average citizen got what he is supposed to get in a democratic country— a right to live without interference from anarchists or others who may wish to interfere with his ordinary day-to-day life in this country.
Some people may say that we were given that mandate four years ago and that that mandate may not run today. Sometimes time makes changes but we have had a few opportunities in the interim to test the feelings of the people. We have had by-elections in Donegal and Dublin. We have had the referendum in which the attitude of the people was explicitly expressed. We have had in more recent times a by-election in mid-Cork where every facet of the speeches being made and every argument being expressed on the other side of the House was trotted out up and down the length and breadth of that constituency. We know the results in all these cases. To those people who might say that our mandate has perhaps weakened since the general election I want to remind them that we have had these opportunities to test it and the outcome was unmistakable.
We are asking for power to deal with an abnormal situation. We are not asking for it for the sake of “cussedness” or, indeed, to make ourselves unpopular. We know what our judiciary and our police force think about this. We know how our police force have been humiliated when they went into court and the rules of evidence made a mockery of them. We do not come in here lightly to do something unpopular and there is not one Member of this House who believes for one moment that this legislation will be used against any law-abiding citizen. No one believes that such a thing will happen.
Mr. J. Brennan: Who wants to see this legislation stopped? The people who get out on the streets, the people who would ruin this country from the streets, the people who sling bottles at  our police force and make a mockery of our police force, the people who, if a policeman puts a hand on a citizen, immediately shriek: “Police brutality”. These are the tactics copied from other countries, countries in which attempts at mob law had to be stamped out. If this Parliament does not give us the right to enforce law and keep order, then the people will very quickly tell us in the next two weeks whether or not they want this Parliament. It is from the people that power comes. It is not from Fianna Fáil and it is not from Fine Gael. It is from the people who put us here to represent them and, if we are doing wrong now, then let us ask the people what they want. Do they want this Parliament to be upheld by legislation designed to deal with a dangerous and abnormal situation? Is it to be a case of wearing kid gloves and going around saying: “You are a nice fellow. You only robbed a bank. We have no proof and we cannot substantiate the fact that you did rob a bank”. Is this situation to be allowed to continue? This Parliament must decide on this legislation or else the people must tell us what they want.
Mr. J. Brennan: It is very easy to be smart. It is very easy to mock. We have here a clear-cut situation. There is no choice. One is either for law and order or against it. If one is for it, then it is the duty of this Parliament to declare war.
Mr. J. Brennan: Yes. If people are against violence they must do everything possible to keep peace and order in the country. If people are in favour of violence, then the forces of order, who have an Army, have a duty to maintain that order. We cannot just sit back and allow violence to continue. The kind of character who goes into a hospital and protests, and subverts the course of justice, and comes out the next day and protests that he is completely opposed to that kind of thing shows the kind of ambivalence that  those who support law and order just do not want. We have come to the crunch and the Members of this House will walk into the Division Lobbies this evening to vote and I hope, after that vote, the message will be loud and clear. Will we face the country, having left ourselves no opportunity to pass legislation here designed to deal with an extremely explosive and serious situation? Do we reject the opportunity to bring in such legislation in the pretence that it would interfere with the liberty of God-fearing citizens? Would it interfere with the liberty of God-fearing citizens? Of course, it would not. The only people with whose liberty it might interfere are the people who want to be out on the streets, throwing bottles at the police, and at the same time, talking about the freedom of the individual and the great virtues of democracy, the people who were outside this House last night, the people who have come in here in the last few years and openly stated that their objective was to overthrow the institutions of this State.
Mr. J. Brennan: My attitude is and has been quite clear. My constituents know my attitude. It is unequivocal. Every single constituent who supports me—there are some 16,000 or 18,000 of them—knows what my attitude is. Deputy P. Brennan said that someone had told him to vote against this Bill. Not a single constituent of mine has asked me to take a stand against this measure.
We have been accused frequently of wanting to hang on to power here. That accusation has been made both inside and outside this House. Now we are accused of wanting to have a general election. I will give my seat to anyone rather than continue to sit in this House and see an attempt to introduce legislation to deal with a serious situation being held out as something designed simply to engineer a general election.
Mr. J. Brennan: If I wanted advice on law and order the last person from whom I would seek such advice would be Deputy Coogan. One speaker talked about our trying to pass on to the courts a responsibility that should be ours. But surely it is the courts who interpret the law and surely it is the courts who decide. I would advise District Justice Sweetman, instead of writing long letters to the Press, to read the Bill. Nobody should know better than he does that it is the courts who interpret and decide on the law. All we are seeking to do here is to make it easier for the courts to deal with situations which they, more than anyone else, know must be dealt with; they also know that, in order that they may be able to deal with the situation, there must be a change in the rules of evidence.
Some speakers made the point that there is no terminal date. I am quite prepared to accept a terminal date of two years, or one year, or whenever this is not necessary, but let us leave ourselves free to bring in this type of legislation any time we think it is necessary. I would ask those people who pretend they fear what is contained in this legislation to look at who is opposed to it, who is genuinely opposed to it. There are different reasons. Some people are opposed to it merely for political reasons. Some are opposed to it because it is an instrument to defeat the Government. Some are opposed to it because they do not want law and order anyway.
Mr. J. Brennan: Some are opposed to it because they want a low profile effort that will permit anarchy, without any serious effort to prevent it. Everybody is free to express himself in this House. The people who are interrupting me while I am making my views on the Bill known can make their own contribution. They are free to make it. I have just as much common sense as anybody else. I am capable of assessing motives as easily and as readily as anybody else I know when people  have ulterior motives, and when they have genuine motives. I have heard very few expressions of genuine fear of this legislation which were not prompted by some ulterior motives. This is unpopular legislation. Nobody denies that. We are all agreed on it. Nobody wants to have it, least of all the Government who are bringing it in.
Mr. J. Brennan: We must deal with this serious situation when it occurs. Those who think they can face the present situation, and the future, as they would face a normal situation, will find themselves in Queer Street one day. Let us suppose there is an election and that a coalition mixum-gatherum take over the situation. If the position deteriorates further, as it has all the signs of deteriorating, they will have burned their boats and they will not be able to look for legislation to deal with the situation.
Mr. J. Brennan: These are the considerations that must be taken into account, and these are the things the people of Ireland are thinking today, not the nonsense that is being talked on the other side of the House. They know that we did not bring in a piece of unpopular legislation to cut our own throats. They know we brought it in because we have the advice of those who are responsible for administrating the law, and the advice of those who are capable of sustaining the law in the police and in the army. They know we have had the advice of  the people who are sufficiently intimate with the situation to be certain that the legal position under the present legislation is not adequate to deal with the situation and as it is likely to develop.
It is all right to carry placards through the streets about “Jack the Rat”, and what have you. They are not dignified to say the least of them. They may please people sitting over there but they will not please any decent citizen.
Mr. J. Brennan: They may derive certain satisfaction out of them and the cameras will be sure to focus on them but, remember, we are at a serious crossroads. I do not claim to have all the wisdom of this House, but one does not need to have a lot to foresee that we are at the crossroads now. We are facing a situation, and let us not burn our hopes.
Dr. Thornley: The discussion we are supposed to be taking part in is a discussion on the Offences against the State (Amendment) Bill, 1972. The shadow of a possible election seems to hang over virtually everybody who speaks in this debate.
Dr. Thornley: I recognise an election propaganda speech when I hear it. I have been called naive because I am not obsessed with the electoral consequences of what we say or do in  this House. Have we sunk so low in this Parliament—and by God the 19th Dáil has sunk pretty low over the past three years—that all our actions are determined solely and exclusively by a head count of what will happen to us, whether we will be re-elected and whether we will get our pensions. I want to make a number of things quite clear. I deny flatly the charge of ambivalence made against me by the Minister. I regard this as a piece of disgraceful, fascist and totalitarian legislation which, if it were introduced by the Greek colonels, would be opposed by every delegate we sent to the Council of Europe. Since it is introduced close to home we all find that there are necessary and reasonable excuses for having it passed.
Let me make one thing absolutely clear. Irrespective of the electoral consequences to me or to anyone else, if no one else were to stand in his place and call for a vote on this Bill I would do so, and I hope I would find four others to stand with me, so that a division would be possible under Standing Orders. Happily that issue does not arise because the Labour Party are unanimous in their opposition to the Bill. Let me make that absolutely clear before the label of a so-called Provisional supporter is hung around my neck, or the neck of anybody else in this House.
No one is more conscious than I am of the importance of this debate. No one is more conscious than I am of the dilemma of a democracy, a so-called democracy if Ireland can be called a democracy—and I sometimes wonder—which is faced with the conduct of people who deny the rules of the game and who deny the proper sequence of legal action under a democracy. No one is more conscious than I am that some of the people at whom this extraordinary piece of legislation is allegedly aimed have said that they have no time for this House, and no time for the process we are now going through here. What is a democracy to do in these circumstances? Is it to arm itself with powers which are of their very nature in breach of democracy? Before it does this, it has to take a very long and  searching look at its own conscience and its own conduct.
The Government party in this Republic, this 26-county State, have to do that. It is very easy to wheel 71 Deputies, all desperately concerned with their political, administrative and financial futures, through the Dáil lobbies. Would it not be more appropriate to debate whether the conduct of the party which, effectively speaking, have this country in a vice-like grip justifies adding to themselves the powers contained in this Bill? I contend that they have not got the right to do this and I will explain why in a second.
I want to make a very brief reference—I trust the Ceann Comhairle will bear with me while I do this since it has been referred to both by the Minister and by the Taoiseach—to an incident in which I was involved on Sunday. I went to the Mater Hospital on humanitarian grounds to seek to ameliorate the conditions of an individual whom I did not want to see die. I would do the same for anyone. It would be very easy, like the Pharisee and the Levite, to pass by on the other side. To take my phone off the hook would be the easy way out. I did not do that and I am not prepared to do that. I am not ashamed of my conduct. I know that by doing what I did I left myself open to the sneers which have come from the gentle, kindly, indolent Taoiseach that I am a Provo supporter. I know, and I knew before I took the action I took, that this would be the consequence and that if an election is fought on the polarities determined by those people over there—do you want the Oireachtas or do you want Seán Mac Stiofáin—at every chapel gate in Ireland I will be called a Provisional supporter. I know and I do not care and I did not care on Sunday because I am not prepared to stand idly by, to use a famous phrase, while a man's kidneys degenerate past the point of no return. I am not prepared to do it.
Dr. Thornley: This does not mean that I am in any sense a supporter of the campaign of violence waged in the  North, allegedly by the Provisional IRA. Like every other member of this party I am committed, as is every other Member of this House, to the view that the only possible solution to the division of what I regard as our integral national territory, the Thirty-two Counties—I am not quite sure the Fianna Fáil Party still regards it as our national territory; I regard it as such and the Labour Party constitution regards it as such—is by peaceful means and I will be found on Sunday equally ready to stand with the appeals for peace of the Protestant clergyman from Belfast who lost his son on Friday. I will be found equally ready to stand there. I detest and abominate death in all its forms. If I had the guts I would be a pacifist —I probably am a pacifist—let me make that quite clear.
It is the policy of this Labour Party to oppose this Bill and that policy is unanimous, whatever the correspondents in the Press may say. I am unlike the Minister who has talked about the way television cameras are used and placards about “Jack the Rat”. It would be unparliamentary for me to call Jack “Jack the rat”, so I will not do it. I simply ask his former colleagues what they think about him. Unlike the Minister I do not mind if political correspondents misinterpret my actions as being an expression of allegiance with the Provisional IRA. They have that right. It annoys me. I do not like it. It irritates me. It upsets me. But, unlike those people over there, I am not going to set out to muzzle them and stop them doing it. I hope I make my position clear on this.
This has been an appalling fortnight for Irish justice, culminating in this Bill. A man—we will call him X for the purpose of argument—has been mysteriously picked up in the early hours of the morning after he had made a tape. The entire authority of Telefís Éireann have been sacked for allowing the tape to be made. A distinguished journalist—one of the most distinguished journalists in the country—has been sentenced for contempt for refusing to talk about the tape that has been made and  another man has been sent to his possible death on the basis of the contents of the tape appropriated by the Government. If that is not having it both ways, well then, I am even more politically immature than I am accused of being.
I want to make quite clear that I have no shame for what I did on Sunday. It does not make me an apostle of violence to lead a deputation—I do not speak of the demonstration—to see Mr. Mac Stiofáin. If it makes me an apostle of violence to do so, it makes the Archbishop of Dublin, Dr. Dermot Ryan, an apostle of violence; it makes the former Archbishop—more loved on those benches than on these—Dr. John Charles McQuaid, an apostle of violence. It makes the Limerick City Council apostles of violence; they passed without opposition a resolution calling for the release of Mr. Mac Stiofáin on humanitarian grounds, a resolution supported by Councillor P. J. Liddy of the Fianna Fáil Party.
Dr. Thornley: Are these all to be condemned as Provos at every chapel gate? Is Councillor Liddy to be condemned as a Provo for seeking to prevent a man's death? There are enough deaths in Ireland, Protestant and Catholic. Even if I did not think the Offences Against the State Act to be an abomination, which I do think and it is party policy to think it is an abomination—I am perfectly in accord with party policy in saying this and successive conferences have said we are opposed to the Offences Against the State Act—and if I did not think personally that Mr. Mac Stiofáin should not be let down—and I do not think he should be let down —even if I did not think this, are the Government so irresponsible that they want to provoke a situation where the corpse of Mr. Mac Stiofáin is pulled through O'Connell Street on a gun carriage and the memories of Thomas Ashe are evoked in this State, that they want the confrontation revived of the kind those associations, fostered more on those benches over  the years than by any other group of people evoke? Do the Government want that? Are the Government so totally concerned with survival and power that they do not care if that is the kind of confrontation they foster?
If that makes the Government clever, if that makes the Government politically astute, if that makes the Government good at electioneering tactics, I am glad I am a fool because at least I am a fool with a clear conscience. What was it Pearse said?
Call me a fool but a fool who can look into the shaving mirror every morning for the rest of his life. I am not ashamed of what I did. I would do it again in the morning but I wonder how those people who sit on the back benches over there and who were preaching republicanism as recently as three years ago, feel when they look in their shaving mirrors.
Dr. Thornley: I turn to the Bill with profound depression. It is almost unnecessary to talk about it. It is unamendable. Deputy Cooney's amendment is so directly a negative that it is tantamount to not being an amendment but I think the Deputy is correct in his amendment although I do not go all the way with everything he said in support of it.
It has been said both by the Taoiseach and the Minister that the Bill does not transfer the onus of proof of innocence to an accused person. I refute, deny and challenge this because it seems to me that it does that precisely. Let us look carefully at the Bill. Section 3 (1) (a) states:
 Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member.
First, may I ask what is the meaning of the word “reasonable”? I am not a lawyer but I have taken legal advice on this. The word “reasonable” is one that occurs here and there in this Bill. Who is to determine what is reasonable? Secondly, the previous common law practice has not been that a person is obliged by law to provide any information or even his name and address to a member of the Garda Síochána. This is a right to silence, as clerical people have said, the silence of St. Thomas More, a saint to whom, if I may be forgiven the crawthumping, I have a particular devotion. St. Thomas More's defence was silence until the point of his conviction and then he broke the silence. If this Bill becomes law silence will be culpable. This is a major change in the whole common law tradition which runs right through, by a golden thread as the textbook says, the laws of both Great Britain and Ireland. Furthermore, the Bill places the onus of belief on a member of the Garda Síochána who is not below the rank of chief superintendent where he states that he believes the accused was, at a material time, a member of an unlawful organisation. Such statement would be evidence that the accused was then such a member.
Deputy Enright made the point that for one to prove he is not what he is accused of being is almost impossible. For all I know, the Minister may be a member of the Provisional IRA. How would he prove he was not a member of that organisation? How would Deputy Haughey prove that he was not a member of the Provisional IRA? This Bill would create an entirely new situation in law and it is arguably in breach of the European Convention on Human Rights which was ratified by all the member states of the Council of Europe, including Ireland. Article 6 (2) of that convention states that everyone charged with a criminal  offence shall be presumed innocent until proved guilty according to law.
This Bill places the onus on the accused rather than on the accusor. I would oppose the Bill equally if it applied as much to Billy Hull, William Craig, Adolf Hitler or members of the Provisional IRA. It is a matter of indifference to me because the Bill is something which is intolerable to me as one who has been brought up in the common law tradition of these islands. The Taoiseach, the Minister for Justice and the Minister for Social Welfare all made the point that the Bill was aimed specifically at special categories of people, to wit, members of the Provisional IRA. That is a reassuring statement, I do not think. As Deputy Cooney correctly pointed out, we were given a comparable assurance that the Forcible Entry Bill was aimed only at people who were squatting but we know that those measures were used subsequently against other categories of persons. In the same way, the Offences Against the State Act has been used in the past against the trade unions. Once that party are armed with these powers, are we simply to rest on their word, a word that they have broken so often since June 1969, that the Bill would be used only against the geligniter and the bomber? If I were to accept that assurance from those benches I would be guilty of a degree of gullibility even greater than that of which I have been accused.
The Minister referred to the fact that there are people who are members of what is described euphemistically as an unlawful organisation who refuse to recognise the courts, who would not plead, and he said that even in those cases these people's rights would be protected because the justice could cross-examine police witnesses. Let me make two points clear. Every tradition of common law asserts that even a person who refuses to plead in a court is innocent until proved guilty. The statement that he is not prepared to give evidence does not render him a non-person. In legal terms he is still a human being who has legal and civil rights although he denies the efficacy of the system which gives him those  rights. Maybe democracy is over-lax or over-lenient here but every democracy behaves in this way. I am not prepared to say people who do not recognise the court are to be sent down on a systematic conveyor belt on the basis of the evidence adduced under this Bill to what is tantamount to internment. Their legal rights remain even if they deny the validity of the institution which provides those legal rights. This is not Deputy David Thornley making a statement. It is a fundamental principle of common law. In one of the classic textbooks on social democracy, that written by E.F.M. Durbin, the point is made that even those who refuse to play by the rules of the social democratic game are entitled to benefit by the application of those laws. This is something in which I firmly believe because, as I have said before, when democracy arms itself with powers which abrogate the rule of law in order to resist people who wish to overthrow the rule of law, then you are in a circular logical situation because in effect democracy has then committed suicide and that is what it is doing in this Bill.
I have no wish to make any criticism of our judiciary as a whole or of any individual judge. It would be wrong and invidious to do so in this House. The argument of the Taoiseach and the Minister for Justice that even where a prisoner refuses to plead or as, perhaps, in the case of Mr. Mac Stiofáin is arguably not in a physical or mental condition to conduct his own defence, his rights are adequately protected by the possibility of the presiding judge or judges acting in an inquisitorial capacity on his behalf, cross-questioning a superintendent of the Garda Síochána, does not carry conviction with me. I am choosing my words very carefully and very deliberately here. Reading the transcript of the Mac Stiofáin trial does not suggest to me that it is safe to leave the protection of accused people who refuse to plead solely in the inquisitorial hands of justices.
This Bill cannot be seen in isolation. It has been a bad fortnight for Irish democracy. I have mentioned four ways—the arrest of Mac  Stiofáin, the dismissal of the authority, the arrest of O'Kelly and now the introduction of this Bill. We listen to the protestations of successive speakers from that side of the House that there is no pernicious purpose behind this Bill. In addition to taking this Bill in the context of the four events to which I have referred, one also has to bear in mind that The Sunday Independent of 19th November, 1972, carried an advertisement calling for the recruitment of 100 temporary male prison officers with, as it put it, good prospects of permanent employment. For what? For whom? For me? For you? The country is alive with rumours that Kilworth Camp, County Cork, is being prepared for the reception of large numbers of people of one category or another and The Irish Times this morning carries a story that Arbour Hill is being prepared similarly for the reception of prisoners. “Arbour Hill”—famous, evocative words—is being prepared with a rapidity which does credit to the Board of Works. If only they had applied the same expedition to the repairing of Mountjoy Jail we might not have had the Prisons Act passed through this House.
The Taoiseach, speaking last night, criticised my colleague, Deputy Cruise-O'Brien, and much as I may differ from him on points of detail, on this Bill we are at one. He criticised him for referring to the historical origins of the Irish Republican Army and tried to make a distinction between the IRA from which that party proudly take their origin and the IRA which functions at the moment. I will not follow the Taoiseach into historical exegesis. It is not my practice to take this House back to 1922, 1931 or 1932 but I would say this, without any expression of support for violence on my part—I have no support for violence—if people in this country have been taught that their heroes should be gunmen, should be Dan Breen, Seán Treacy, Séamus Robinson, Seán Hogan, Ernie O'Malley, Cathal Brugha, Erskine Childers, senior, and as late as the 1950's, Seán South, if they have been taught this rightly or wrongly— Deputy Cruise-O'Brien and I would  differ on this—they have been taught this nowhere more clearly and more firmly than from those benches. Maybe the Fianna Fáil Party have experienced a late conversion, do not believe in violence any longer, do not believe in republicanism any longer, want to amputate their roots, want to amputate their historical past, want rapidly to turn themselves into a new kind of party—a smooth party, a party of Europe, of mohair suits, pâté de foie gras, eternal realism. Maybe that is what Fianna Fáil want to do but it is an expensive and rather rapid operation and unfortunate poor devils like Mac Stiofáin who were brought up on the mythology perpetrated from those benches are now starving so that the Government can rapidly bring this party of theirs into a different dimension and a different view of Irish history. May God help those who believed what they heard from those benches up until 1969. They are paying the price for it now.
The Taoiseach speaking last night in a speech of characteristic and to my mind disgraceful cunning which epitomises the Taoiseach, a very clever speech, a brilliant speech—I take my hat off to him—made reference in this House in an appeal for sympathy for this Bill to two things in particular —the bomb incident in a Dublin cinema recently and the conviction and release of, though he did not name her, I hope I am in order because it was obvious to whom he was referring, Mrs. Máire Drumm. The Taoiseach is a lawyer. I am not. Even if the Taoiseach did not practise for very long in the early years of his career as a barrister he was too busy making up his mind whether he would join Clann na Poblachta, Fine Gael or Fianna Fáil to have time to practice as a barrister——
Dr. Thornley: I am not a barrister so I do not know, but is it proper for a Taoiseach to imply before any case is brought before a court that the Provisional IRA are responsible for the bomb incident which we all equally in this House deplore? Do we know who is responsible for that incident?  I do not. Is the Taoiseach in possession of sources which I am not in possession of? Is it proper for the Taoiseach to try to hang around the necks of the opposition to this Bill the fact that Mrs. Máire Drumm only received a 22 day sentence? Surely if the Taoiseach is asking us to repose confidence in the Judiciary he should not get up in this House and, in effect, call in question a decision reached by the Judiciary.
any film, microfilm, negative, tape or other device in which one or more visual images are embodied (whether with or without sounds or other data) so as to be capable (as aforesaid) of being reproduced therefrom and a reproduction or still reproduction of the image or images embodied therein whether enlarged or not and whether with or without sounds or other data
shall be included as a document when this Bill becomes law. This is a novel proceeding which has largely escaped notice in this debate, not totally novel because under the ruling of the justice in the Mac Stiofáin case the famous tape was used—and I have my own views about the legitimacy of doing that—to convict Mr. Mac Stiofáin. Now if this Bill becomes law, video tapes are to be used for convictions. Personally, I find this abhorrent. It is not even done in America where political sophistication has reached a very high point, but leaving aside the major issues raised by the Bill, I wonder has the House considered the effect which section 5 (d) is likely to have upon an interviewer, a broadcaster, a producer of a programme in our radio and television. In future whenever it is put before him—should he make a particular programme or should he conduct a particular interview—hanging over him will be the shadow of 5 (d). If he does this, if he interviews Mac Stiofáin, if he interviews me, if he interviews the Minister for Transport and Power, there is always the possibility that  someone is going to tap him on the shoulder and say: “Give me that cassette; it is material evidence in a prosecution I am about to take”. As one who has some small experience of broadcasting, may I say that I am deeply conscious of the inhibitions which this will impose upon a disseminator of objective news in the public media.
Let me say that everything in the Taoiseach's speech shows that it was an election speech, a clever speech, a cunning speech, a speech designed to catch votes, a speech designed to frighten people, a speech designed to appeal to the small man, the man of property, small property, a speech designed to say: “Your car or your house is in danger from irresponsible subversive elements; therefore, accept this Bill”. It was a very clever speech. The Government are setting the polarities of a future election and they are getting a certain amount of help from certain Press correspondents in doing this. The polarities they are choosing are between the Oireachtas on one side and the Provisional IRA on the other, a marvellous issue to fight an election on, and I take my hat off to the Taoiseach for the characteristic cunning with which he has chosen it. But there are times when moral and political issues transcend electoral considerations. The polarities are not as the Taoiseach states them; they are not between the Provisional IRA and democracy. They are between the Fianna Fáil Party and democracy and this Bill is designed to arm the Fianna Fáil Party with powers which I, for one, were I alone of the 144 Deputies in my protest, would under no circumstances concede to them.
Let me finally repeat that pace the sneers of the Minister for Social Welfare, I have no time for violence. I am a pacifist and a democrat, but I disapprove of allowing men to add to the catalogue of death in this country by dying of hunger and I disapprove of fascist oppressive totalitarian legislation, and no matter how my actions last Sunday, what I am saying here today or what I may reserve the right to do in the future are  misinterpreted by members of that party, I shall remain obdurate in opposition to this disgraceful Bill.
An Ceann Comhairle: The Chair is giving an opportunity to all parties for the expression of all points of view in the House and has continued that since the debate began. A member of the Deputy's party has already spoken this morning and five Government speakers and five Fine Gael speakers have intervened.
Mr. Foley: It would be my understanding of the position that, as you, Sir, have often explained to the House, there would be rotation. This means that a member of the Government party speaks and then a member of the Fine Gael Party and the Labour Party. Surely an Independent Member would then be entitled to speak? I am not challenging the ruling of the Chair but I asked for information.
An Ceann Comhairle: That only applies in the case of a debate on a Private Members' motion. On a Government motion, the choosing of speakers is a matter for the Chair. It is different from the debate on a Private Members' motion.
An Ceann Comhairle: I do not need any lecture from the Deputy about calling Deputies. He is not even listening to what I say; he just wants to speak. Deputy Foley knows that a member of his group was called this morning.
Dr. FitzGerald: The situation we face at present is a complex one, it is complicated by the fact that over the past fortnight we have faced not only the issue of this Bill but also the issue posed by the arrest and conviction of Mac Stiofáin and also the issue posed by the Government action with regard to RTE. Each of these has provoked its own reactions amongst different members of the community. This is not, therefore, a clear-cut issue. Secondly, on the Bill itself, the whole problem posed by this Bill is that perennial problem, the issue of liberty and freedom and how they are best safeguarded. Clearly a balance has to be maintained between the libertarian view expressed by Deputy Thornley which is entitled to respect and the view that the interests of the democratic system must be safeguarded and  that any democracy which leaves itself with one hand tied behind its back is liable to founder. Our job in this House is to find the right balance between the two. It is not an easy task. The issue is not a clear-cut one and all of us who faced the problem on this Bill have had to face it with seriousness, to apply our minds to the question as to which parts of the Bill are, perhaps, desirable and acceptable and which parts are totally unacceptable and, in our view, unnecessary. It has not been easy for any of us to reach a conclusion on this.
In speaking on this matter I shall be bearing in mind both the desirability of giving to a government of a democratic State the powers that are necessary to defend the democratic system and the undesirability of giving to a government powers that go beyond what is necessary and which are a danger to the democratic system we are seeking to defend. That is the dilemma this Bill poses for us and it is no good pretending it does not exist.
With respect to Deputy Thornley, it is easy to make a speech purely in terms of individual liberty and protection against encroachment by the Executive. It is easy to make a speech on the need to safeguard the State against the IRA and to state that all measures are legitimate for this purpose. In fact, the truth lies between the two statements. These extreme viewpoints on the issue of liberty and order do not do justice to the subject. It is all too easy to oversimplify it and in a debate which the Government have contrived, apparently as a prelude to a general election campaign, they will seek to oversimplify these issues. They will seek to elevate the law and order issue and to pay scant regard to the issue of individual liberty with which we must be concerned.
The Opposition could fall into the trap set by the Government. By contesting the right of the Government to introduce inherently objectionable legislation there is a danger they might find themselves facing a general election campaign in which the Government would fight this law and  order issue. However, I do not share the confidence of some members of the Government in the ability of Fianna Fáil to pull the wool over the eyes of the people.
The people in the last four years have watched the party opposite; they have watched the action and inaction of that party. Four years ago the people saw men firing guns over a grave in Mullingar and they saw that nothing happened in that case. From statements made in this House they know why nothing happened—because the Garda were not permitted to act. Since then they have seen a succession of actions in public defiance of the law, tolerated by a government not willing or powerless to act because there were in the ranks of that party and in the Government people who were sympathetic to the men of violence in a campaign against democracy in this State.
The people repeatedly have heard this party demand action, demand application of the existing law, but they have also seen that little use was made of the existing law. On this issue, our party have been consistent. There has been a succession of public actions in defiance of the law, followed by Government inaction. Nobody is in any doubt why action is not taken; we know of the internal difficulties the Government faced.
Yesterday I heard Deputy Sherwin make a speech that certainly gave aid and comfort to people threatening democracy in this State. Where did Deputy Sherwin emigrate from to the upper benches? He came from Fianna Fáil and the same is true of Deputies Foley, Brennan and Blaney. These are the people whose views, as expressed in this House, come nearest to sympathising with the illegal organisations and who at times seek to defend or explain the actions of these organisations. These people have never been willing to condemn murders committed by these bodies, they have never been willing to defend the right of the people to life when attacked by these organisations.
We have seen that when Ministers, in particular the Taoiseach and the Tánaiste, spoke on these matters there  were silent gentlemen behind them unwilling to applaud them on the occasions when they chose to speak out against the IRA and even before they were willing to take action against the IRA. Members of this House saw the glum faces behind the Taoiseach, the failure to applaud the speeches, while from this side of the House there was applause for the sentiments expressed but not for the lack of action by the Taoiseach, the Tánaiste and other Ministers.
Because of that problem in Fianna Fáil, we know the Government were inactive for a long period. We know that two years ago Ministers were engaged directly in activities, or knew or suspected of activities involving the security of the State which they did not bring to the knowledge of the Taoiseach. We know that with certainty because we have the report of the Public Accounts Committee on this matter and I will quote a statement from that report:
Had the then Minister for Agriculture and Fisheries, Deputy Neil T. Blaney, the then Minister for Finance, Deputy Charles J. Haughey, and the then Minister for Defence, Deputy James Gibbons, passed on to the Taoiseach their suspicion or knowledge of the proposed arms importation, the misappropriation of part of the money which is now known to have been spent on arms might have been avoided.
The committee were concerned only with the technical issue of the money spent but, of course, this also involved knowledge of the arms importation and on this matter we have evidence from the trial as well as the evidence before the Public Accounts Committee.
A government in which Ministers knew of these activities and sympathised with them to such an extent that they would not tell the Taoiseach what was going on were a government that clearly could not act against the IRA. The accusations that have been made of direct stimulus to the creation of the Provisional IRA by Ministers, that they aided and financed this establishment, have not been properly refuted and are consonant with the findings of the Public Accounts Committee,  although they go beyond what the Public Accounts Committee were able to find on the evidence before them.
Mr. Sherwin: On a point of order, when Deputy FitzGerald speaks of what the Taoiseach did or did not do, surely the decision of the arms trial clearly indicated that the Government knew precisely what was happening in the contingency plans in relation to the oppressed nationalist population in the North? It is wrong for Deputy FitzGerald to suggest the Taoiseach did not know this.
Dr. FitzGerald: I read every word of the evidence in the arms trial and I was involved in the Public Accounts Committee. I must say that the evidence before us was of the existence of contingency plans for certain action to be taken in certain circumstances. That in itself is not conclusive evidence that the Taoiseach knew of particular activities of certain Ministers. However, the leader of Deputy Sherwin's party speaking in 1970, about two months after these events, stated that these matters did come to the knowledge of the Taoiseach and the Cabinet and, knowing what had happened, the Taoiseach and the Cabinet decided to take no action against these criminal illegal activities. As Mr. Boland said at the time, the decision was taken to take no action but that decision was reversed only when Deputy Cosgrave went to the Taoiseach. The Taoiseach knew he would be exposed next morning for not having acted. That is the record of this Government.
Dr. FitzGerald: That is a fair question which the Deputy can put to Deputy Cosgrave as I do not know the answer. Thank God he got the information and exposed the conspiracy. It was accurate information and he forced the Taoiseach to reverse the decision Mr. Boland told us the Taoiseach had taken, to push this  matter under the carpet because he was afraid of these powerful Ministers and their involvement with the IRA——
Dr. FitzGerald: I merely want to recite the reasons this party find it difficult to take from the Government a Bill of this kind at this time, a Government which not only did not act against the IRA but whose members knew of its activities and had knowledge of its financing and whose leader was prepared to sweep this matter under the carpet. For such a Government to come here with this legislation naturally arouses suspicion on this side. That is the position so far as we are concerned——
Dr. FitzGerald: The people can decide if it is convoluted. The people know the record of this Government. Yesterday the Taoiseach attempted to pretend the Government could not use the powers they have, but let us examine his argument in detail. Deputy Cooney mentioned a number of sections in the Offences Against the State Act which could and should have been used but which were not used. The Taoiseach replied selectively.
Of the various sections mentioned by Deputy Cooney, the Taoiseach replied to certain ones but not to others. From his silence I argue he could not reply to the others. Making that speech—perhaps his last speech in this House before a general election —he would have disproved any point he could have refuted. He remained silent on all but two points which I shall deal with.
With regard to section 6, he argued it would not have been possible to  prosecute people under that section because until Dáil Mhumhan, Dáil Uladh or Dáil Connacht purported to legislate it would not be possible to find the people concerned guilty. I do not know enough about the law to state if this is so, but I know that when people set up bodies and call them a Dáil they are purporting to set up a legislature. There is a good prima facie case in such an instance. I agree the court might decide that the people concerned had not committed an offence but it is not the job of the Executive to pick and choose in that way. Where there is a prima facie case of a crime being committed by people seeking to destroy this State they should prosecute. The possibility is there that some prosecutions may fail but where people set up a body and call it Dáil Connacht. Dáil Uladh or Dáil Mhumhan and where they purport to set up a legislature, there is a prima facie case against them. The court may decide that unless there is actual legislation the charge will not stand but that is not the point I am making. The possibility was there of getting a large number of people involved in an illegal organisation and of putting them where they should be but the Government did not take that chance. The Taoiseach's defence on this point is inadequate. If he had told us that they prosecuted but that the prosecution had failed I would accept that, but when he did not attempt to prosecute he has no defence.
The Taoiseach referred to section 52, dealing with the question of requiring people to account for their movements. He told us this could not be used any longer because of the Commission on Human Rights. I do not know enough about the law to say that as things stand at the moment the Council of Europe would override that. If the Council of Europe override that provision I do not see how they can permit section 2 of this Bill but I reserve judgment until I hear more of the details. This Government have the power which they used before to derogate from our obligations under the Commission on Human Rights where there is a state of emergency  sufficient to require it. The Government gave notice of their intention to derogate a year ago and they claimed there was a plot of some kind against the State by a small group. They gave notice of their intention to derogate when they had a rumour or a report that some action would be taken to kidnap or assassinate people which, in fact, never came to anything.
If they were prepared to derogate in that case and in the earlier case back in 1960—and derogate successfully because, in fact, the Gerry Lawless case was taken and we won that case—I should like to know why have the Government kept one hand tied behind their back in the face of what they describe as a national emergency. Why have they not derogated from the Convention at this point to enable them to introduce section 52?
Perhaps there is an answer to that, some technical answer which I do not know, but certainly for a Minister to introduce a Bill as this Minister introduced it and for the Taoiseach to intervene in the debate in the way he intervened and for neither of them to give us any explanation of this and leave the House in ignorance of the position is not to tackle this problem seriously, as they have failed throughout to tackle the problem of the IRA seriously.
Those were the two sections of the Bill which the Taoiseach chose to comment on: those were his defences and in both cases the defences are inadequate. Under section 6 they did not try to prosecute; they cannot tell this House that they failed; they can only say they thought they might fail, but that is not a defence. In the second case, they did not derogate and have not told us why they could not derogate from the Convention of Human Rights on that particular issue. On those two issues the Taoiseach had no defence and the grounds he gave for the inaction of the Government under those two sections were grounds that do not stand up on the evidence before us.
But the Taoiseach did not mention the other sections to which Deputy Cooney referred or others to which he might have referred. Why have the Government taken no action against military exercises, evolutions and manoeuvres, to use the words of a section  of the Bill. I wonder why that was not mentioned because every week in this country now we have these parades of men with their berets and para-military uniforms marching in military formation, certainly engaged in military exercises, evolutions or manoeuvres, and doing it—and this is indeed a double event—within a half-mile of the Dáil last night. What action has been taken against that? None. The Government have permitted and are still permitting a para-military group, or several para-military groups, to parade in a manner prohibited in the Offences against the State Act and have failed to take action against them. Many hundreds of these people could have been arrested and charged under that section had the Government acted. Why they have not acted, we do not know because the Government have failed to tell us. The Minister in his opening speech failed to refer to it. The Taoiseach, despite Deputy Cooney's challenge, failed to take up the challenge and answer it. Is there a reason? Perhaps there is, but we do not know: the country is not to be told, apparently, why this section is not being used. I suspect the reason why we were not told is because there is no reason and the Taoiseach was silent because he was not able to answer Deputy Cooney.
There are other sections of this Act which could have been used and have not been used. What about the section on seditious documents, section 10, in which seditious documents are defined in a manner which covers quite a number of publications on behalf of these bodies? Section 10 (1) makes provision enabling a prosecution to take place of those who publish documents which allege, imply or suggest that the Government are not the lawful Government or that any other body is entitled to be recognised as the Government, or document which imply or suggest that the military forces of the State are not the lawful military forces of the State under the Constitution or that some other body is entitled to be recognised as a military force. We know perfectly well that there are publications of several illegal organisations appearing regularly which imply or suggest these things. When have they been prosecuted for section? Never, under this Government.  The Government have never had the courage to prosecute them; they still have not; they are still permitting these seditious documents to circulate and have taken no action against their authors or those who publish or print them.
Again, there is provision under the Offences against the State Act with regard to public meetings of a seditious character. Section 27 (1) says that in the case of a public meeting held or purporting to be held by or on behalf of, or by arrangement with, or in concert with an unlawful organisation, or held or purporting to be held for the purpose of supporting, aiding, abetting or encouraging an unlawful organisation or advocating support for an unlawful organisation, those who organise it commit an offence and are liable to three months sentence and a fine of £50.
How many people have been prosecuted for holding such meetings? I cannot recall a prosecution; perhaps there have been some cases and that I am in error. Perhaps the Minister in replying can mention them in his opening speech he did not mention them and I am not aware of such prosecutions taking place. I am aware of a couple of prosecutions under the heading of incitement but very few indeed. The fact is that day after day and week after week in this State meetings are held—one was held within hearing distance of this House last night at which people were advocating support for unlawful organisations—but no prosecutions have taken place against those who organise these meetings. Why? We are entitled to be told—before anybody comes to this House—especially a Government with the tarnished record of this one of involvement in IRA activities—looking for legislation, why they have not used the existing legislation fully. We have not been told that.
Why is there silence in the Government about section 19, the section that enables organisations to be declared illegal? Why has Saor Éire not been declared illegal? Here is a body posing such a threat to the State we are told, on this occasion when  internment was threatened that it was necessary to notify an intention to derogate from the Human Rights Convention of the Council of Europe in order to deal with this dangerous body. But it has not been declared illegal and whatever Saor Éire is, it is not a branch of the IRA. I suppose one or other parts of the IRA can claim to be descended in some kind of apostolic succession from the original body—although from what I have read of the IRA in that excellent textbook on the subject by Professor Bowyer Bell, that apostolic succession was broken once or twice and I am afraid that if it had to be ruled on by the Vatican it would not stand up. Nonetheless, I suppose one or other body might claim to be lineal descendant of the original IRA and to be entitled to the name but they cannot both be entitled to it. Indeed, there is a very curious position in the courts at the moment because neither body is prepared to contest this particular issue. If you do not recognise the courts you cannot, of course, claim before the courts to be one of these bodies or not to be one of them.
Saor Éire is not the IRA, yet it is a body which according to the Government threatened the security of this State more seriously apparently than the IRA and yet they are not an illegal organisation under section 19. Why have they not been declared an illegal organisation? Surely we are entitled to be told that before legislation of this kind is brought into this House. These are the kinds of cases and inaction which make us properly suspicious. Clearly, a Government who could have acted in so many ways against illegal organisations and who have failed to do so and are still failing to do so are a Government whose motives in bringing in further repressive legislation must be suspect. The motive which seems most evident in the circumstances is that the Government have now decided to take action and in order to justify past inaction they are suggesting to the country that they did not have sufficient power before and that was why they did nothing. They are suggesting that if they are given the  powers now they can act. In that way they hope to secure an alibi for past inaction.
The Government will not get that alibi from this side of the House. We are not going to concede powers which are of themselves undesirable in order to cover up the failure of Fianna Fáil to act against the IRA. We will not do that and if we were to do so we would be failing in our duty to the country. That is why we are opposing this legislation. Were we to accept it as necessary when it is not necessary and to go along in conspiracy with the Government suggesting to the country that this legislation is necessary when present powers have not been used, we would be giving the Government an alibi for past inaction and we would also be conspiring with them to hide the truth of their past failure and the fact that some of this legislation is not necessary and is inherently objectionable.
The Taoiseach tried to bolster up his weak case by selected quotations. He chose to quote me. I would like to read the whole of the quotation and not just the last sentence which he read. I would like to quote from column 3458, volume 255, of the Official Report for 5th August, 1971. The Taoiseach quoted the last sentence and purported to quote it with a view to suggesting that I advocated internment and other changes in the law and was, therefore, being inconsistent in now opposing this Bill. The House will have no difficulty in seeing how selective the Taoiseach was. I said:
Internment can only arise if the problem is on such a scale that civil war is threatened and society as a whole is threatened and when all other methods have failed. This Government have discredited themselves by threatening to resort to internment at a stage when they have not begun to use the normal processes of law and they perhaps have made it more difficult for them to proceed according to the proper process. Let us not hear any more of internment until and unless other methods have failed and this Government can come to this House and say: “We went through  trial by jury; witnesses were intimidated; juries were intimidated and we had to introduce special criminal courts. We did that; we charged people, but the scale of the problem is such that we are now threatened with civil war and the only solution is internment”, the Government will get from this party support in that action—then and only then;
...but it will get that support when necessary because this party has always stood by any Government, no matter how much it is opposed to it, which, acting properly and with due process seeks to protect the liberties and lives of our people and the society in which we live.
And that all stands, but this Government are not acting properly and with due process. The due process in matters of this kind is to enforce the existing law to the hilt and to use every section of the existing Act and then, if that fails and if convictions are not being secured under section 6 about Dáil Uladh and the like, and under section 10 about seditious documents and under section 19 about military exercises and manoeuvres, and under another section about public meetings, when they have done these things and failed, then they can look for what additional powers are necessary and we will give them the necessary powers, no more than the necessary powers but all the powers that are shown to be necessary. I went on to say that we would not rule out and I certainly do not rule out that in a situation where we faced a civil war internment might be necessary. That is the ultimate resort. Internment can only be justified in the last resort when we face that kind of situation. This party would support the Government in that type of situation. We will only support the Government when they have used the existing processes fully and when they show that they have failed and when we face a situation which can  be mastered by no other means than those extreme means. In those circumstances the Opposition, which is a loyal Opposition, would support the Government.
If the Government try to cover up their own mistakes and inaction and complicity in so much that went on in the past years we should expose them. If they try to bring in legislation of this kind without prior consultation with us involving measures of a character going beyond what is necessary and do it as a political manoeuvre, or as it now seems, a pre-election manoeuvre, they will not get our support. We would be failing in our duty if we gave them our support. That is our position. Let it be clear to the country and to the Government where we stand in this matter.
I would like to raise the question of why this legislation is being brought in at this stage. How many months have elapsed since the Minister first noticed these lacunae in our legislation? It is many months now since he told the House that the existing legislation was inadequate and that he was looking into the question of improving it. This is not a long or complex Bill. It is a very bad Bill but it is a Bill which cannot have taken all that long to draft. Even allowing for the due process in some of our Government Departments, which is remarkably slow, it could not have taken more than a couple of weeks to draft it in its present form.
The Taoiseach tried to explain this and then he suddenly backtracked. He tried to tell the House that the situation had suddenly become very serious with the bomb in the cinema and the guns in the Mater. Then the Taoiseach realised that there had been even more serious developments in other parts of the country, and said that 600 lives had been lost in Northern Ireland. He was trying to suggest that there was a new situation now and that we needed a new Bill to deal with it. The Taoiseach suddenly realised that the situation is not new to Ireland and the Irish people, although it may be new to Dublin. The people in the North have suffered intensely from the consequences  of the Provisional IRA campaign in Northern Ireland and the counter-reaction to that by the British Army and more recently by the UDA. As a result of that guns were bought with money which came out of public funds, through the complicity of Ministers, and with the knowledge of Ministers, Ministers who did not tell the Taoiseach anything about it, as the Public Accounts Committee have said. As a result of that guns were bought in the winter of 1969-70 which were capable of being used and were used in Northern Ireland.
Dr. FitzGerald: Deputy Burke is well aware of where we stand on the question as to whether this House is to be ruled from here or from the streets and, if he had been here earlier and heard my opening remarks, he would know that. We were told that this legislation was necessary months ago, but it did not come before us. Why did it not come before us? It cannot be said that it is because the situation has suddenly become serious because the Taoiseach himself was forced to admit, when he thought about it for a minute, that, of course, the situation has been tragically serious in a certain part of this country for a long time past and the mere fact that some activities are spreading down here now does not change that. It aggravates the situation, but it does not change the fact that we had a duty to take action to save lives in Ireland and we did not take it. The Government did not introduce this legislation at the time it announced the need for it. It kept putting it off. Why? Why did they postpone it until now?
Dr. FitzGerald: And that is my feeling, too, having read the Bill. The amount of drafting that went into it was not very much considering there are so many inadequacies in it, but obviously it is the kind of thing one would have to sit down and think about for a couple of weeks before putting it into final shape. A couple of weeks should have sufficed and not the very many months that have elapsed since we were first told that the law needed to be changed. I cannot envisage what kind of legal research or drastic legal mechanism could take so many months.  Quite clearly, the decision to postpone the introduction of the Bill until now was a political decision of this Government for political reasons and to shuffle the blame off on to their Civil Service advisers, suggesting that they were so incompetent they could not do the job unless they were given a year or so in which to do it. That, of course, is both dishonest and disreputable of the Government.
This Bill could have been introduced, had the Government wished to introduce it, many months ago, if, in fact, they felt, as the Minister stated, the law was inadequate. But they did not introduce it until now. Why? My belief, and I have some grounds for this as a result of what I have read and heard of published Government statements and what I know of things said less publicly, that what, in fact, has happened is that this Government have adopted a policy over the past year totally contrary to the policy advocated by this party—a wrong policy, I think—of postponing action on the IRA and action on constitutional reform right up to the brink of what they hope may be, and we all hope will be, a conclusive and favourable negotiation leading to a peaceful settlement of the problem in Northern Ireland. Our belief, on this side of the House, was that the way to approach this matter was for this part of this country to take its courage in its hands at the earliest possible moment and tackle the IRA in the course of 1971— it should actually have been done long before that—and introduce the necessary constitutional changes so that we could move towards this negotiation in a strong moral position, able to say to the British Government, the British people and the Protestant population in the North, that we have done our part; we have dealt with the IRA in good conscience; we have done all that we can, and effectively, and we have made various changes in our constitutional laws to show that we are anxious only to work towards the kind of Ireland in which all could share equally and we ask you now to sit down and talk over these problems with us. That is the approach we advocated. It was the right approach and the only approach that one lot of Irishmen could honestly  adopt towards another lot of Irishmen. But that is not what this Government did. They saw themselves in a grand diplomatic battle with the British Government, culminating in some great negotiation from which the Taoiseach would come triumphantly back, doing a 1938, only twice as good, and, for that purpose, they wanted therefore not to build up good will so that there would be a possibility of agreement between North and South, but to hold back from dealing with the IRA and constitutional reform so that they could use these as a bargaining weapon in the final negotiation, not with the other people in Northern Ireland but with the British Government.
That is not, in our view, the way this matter should be handled. The Government have postponed legislation until now so that they could produce a good bargaining card in the negotiations with the British Prime Minister. If there is another explanation for this delay, let us hear it because, in the absence of it, and in the presence of a good deal of evidence to support my conclusion, I believe that is what lies behind the timing of this legislation now.
There may also be electoral considerations. The Government may have decided for their own reasons to go to the country on an issue on which it is thought they might do well. That may be present also but, so far as the Northern Ireland situation is concerned, their thinking was, I am sure, along the lines I suggest and I regard that as criminally irresponsible and as showing a total disregard of the interests of Irish people working together, a megalomaniac power politics orientation which will do nothing to resolve these problems peacefully.
In the course of his speech the Taoiseach said that Mr. Mac Stiofáin was convicted only because of the tape. He was trying to suggest—Deputy Cooney adduced the conviction of Mr. Mac Stiofáin as evidence that the law worked—that this was pure chance in this case. It is an interesting point. When he said it I reflected on the curious irony of the situation,  a situation in which the Government are apparently so inept in dealing with this body and the leaders of it that they could not get any evidence until Radio Telefís Éireann conveniently obliged and produced a tape that enabled the court to convict. In the ordinary way, when one gets a help like that in convicting a criminal, one gets a handshake and, if he is a big criminal, one may even get a reward. What reward did Radio Telefís Éireann get? Dismissal was the result. The curious irony of this! If, in fact, the only way in which Mr. Mac Stiofáin could be convicted was a Radio Éreann interview, why did the Government dismiss the authority for having such an interview? I find this very hard indeed to understand and, if I were a member of the Radio Telefís Éireann Authority, I would feel there was a certain ingratitude on the part of the Government in the circumstances. I mention that by way of an aside because I was struck forcibly by the oddity of the Taoiseach's comments and the fact that he himself failed to appreciate the irony of it. His unconsciousness of that told us, I think, a good deal about the Taoiseach.
If the Government really thought this legislation was necessary, if they were seeking the national interest and not party political advantage, they would, of course, have come to the Opposition about this legislation. National security is at stake and there is a need to modify the law. I accept that certain parts of this Bill may be useful amendments to the present law. Certainly we are not opposed to every aspect of the Bill. There are some parts of it which could be quite useful. Unfortunately, together with those, totally objectionable sections have been put in. Had the Government come to the Opposition, as any Government concerned with the national interest would have done, and said: “Look, we have got problems here. There are certain cases where the law is not working and we would like to sit down with you—we will bring our legal advisers along to explain the points so you will see we are not just making a political advantage— and consult with you as to how we  can best deal with this”, does the Taoiseach think he would not have got the co-operation of the Opposition? Does he think we are so lacking in patriotism that we would not co-operate? Of course, if he had come to us along those lines, we would have discussed the matter with him. We would have pointed out that some of the provisions were unacceptable to us and we would have suggested amendments and changes and, if the Government were reasonable and seeking to govern the country properly, if they had the national interest at stake, they would have listened to and accepted our amendments and agreed legislation could have been introduced; but they brought in a Bill containing provisions so designed as to be certain to evoke the opposition of any Opposition party concerned to do their duty by the people.
Dr. FitzGerald: And we shall put down amendments if we fail to defeat the Second Reading. The fact that the Government chose not to seek our co-operation, and to bring in a Bill with unnecessary objectionable features, and with co-operation beforehand, makes it quite clear that this Bill is a party action for partisan reasons——
Dr. FitzGerald: ——pretending to use issues of national security for this purpose. We will not accept that. There are aspects of this Bill which are totally objectionable to this party and which we will not accept. Unless the Government back down we will be voting against them.
Dr. FitzGerald: Let us stick to the subject. The Taoiseach went on to say, in defending his case, that they went through everything, meaning every part of the existing law, with a view to using it. I pointed out that there are half a dozen sections of the Offences against the State Act which have not been used, or which have been used on only one or two occasions. For him to say they went through everything was simply not true. He went on to say that the courts are not effective. He even went on to say that the special criminal courts are not effective. These are direct quotations from the speech of the Taoiseach. I wrote them down as he said them.
I do not understand what the Government mean by effective courts. The figures issued by the Government recently show that in 75 per cent of the cases the special criminal courts have convicted. What kind of conviction rate is necessary to show that the courts are effective? Must it be 100 per cent? Are the courts to become the creatures of the Executive, convicting every man before them regardless of his innocence or his guilt? Indeed, that is the purpose of section 3 (2) of the Bill.
Apparently the Government's attitude now is that, having failed to deal with the IRA until now, and having allowed this menace to grow, some of their supporters and members having helped to finance and assist it, the courts must become totally subservient and, unless they convict in 100 per cent of cases, the law will be changed and bent to achieve that result. We do not accept that. The courts are independent. We support and, indeed, called for the setting up of the special criminal courts. I called for that in a speech in August, 1971. We felt they were necessary because of intimidation. A frequent feature in this country has been the intimidation of witnesses and jurors. We have suffered from this for a very long time because of this organisation and the way they attempted to corrupt the body politic by violence  and intimidation.
We called for them and those courts were set up. They have been effective. I regard a 75 per cent conviction rate as about as high as you will get without instances of injustice. It is inevitable that in any system of law some cases brought forward are defective as regards evidence. In some cases the accused is either innocent or there is some technicality on which he can get off. You are bound to get a certain failure rate. A 75 per cent success rate is very high. For the Taoiseach to insult the members of the special criminal courts by suggesting that they are not effective, because they are not being subservient to the Executive in convicting in every case, is something no Prime Minister has the right to do with respect to the judiciary.
This party are willing at any time to give all necessary assistance to the Government in dealing with the menace of the IRA. An attempt by the Government to suggest that that is not our position, an attempt to suggest that Fine Gael are soft on the IRA, will not arouse much reaction amongst the public. It will arouse the amused contempt of the public. The public know that we have been consistent. They know how over the past four years people like Deputy Cosgrave, Deputy O'Higgins, Deputy Cooney, Senator John Kelly and others, myself amongst them, have consistently called for action against the IRA and condemned Government inaction.
The public also know the people who are in the Government, and they know their involvement. They are aware of the Report of the Public Accounts Committee. They know where the people on those benches up there came from. They know in which party are the people who were not prepared to clap their leader when he was making strong speeches against the IRA.
Dr. FitzGerald: The public will not be confused by people on the opposite side of the House, by Deputy Dowling or Deputy Moore or anybody  else, into thinking that Fine Gael are, ever have been, or ever will be soft on the IRA.
Dr. FitzGerald: Let us look at the Bill itself. Let us try to look at it rationally from the point of view that we are seeking to do two things. We are seeking to strengthen the law where it is inadequate and is shown to be inadequate, and we are seeking to secure the innocent against the danger of being convicted. Above all, that is the job of the Opposition. We are trying to secure a system of legislation which will give the Government the powers necessary to deal with the IRA, and which will be seen not to be repressive in the sense of going beyond what is necessary.
When the Government introduce legislation which goes beyond what is necessary, there are many people of liberal disposition who will be taken aback, and who will be put off, and whose support for the Government in dealing with the IRA may be weakened. Not all the people who have been demonstrating and protesting have sympathy with the IRA. What the IRA want is an issue on which they can arouse sympathy from outside their own ranks. We know how these revolutionaries work. They try to broaden the area of their support by confusing the issue. Where you get an Executive which is foolish and repressive in its attitudes then you get danger to the State. Where you get an Executive which is prepared to confuse the issue of dealing with the IRA by sacking the RTE Authority, then you get danger because an extra issue is brought in to confuse the whole situation.
Mr. Sherwin: May I ask the Deputy a question? Over the past couple of days a number of statements have been issued from Catholic priests associations and last night there were many industrial workers from my constituency and other parts of Dublin parading in protest against this legislation. Surely the Deputy is not suggesting that they are all members of the illegal organisation he referred to?
Dr. FitzGerald: If the Deputy heard what I said, he would know I said the exact opposite. Many protests have been aroused by this legislation and many by the sacking of the RTE Authority. This is creating a situation in which the clear-cut issue of facing the IRA is being confused. This is always the danger of repressive legislation. It gives a handle to the revolutionaries to excite sympathy and support. There is bound to be something of that in the present situation. There are bound to be some people with soft hearts and soft heads.
Dr. FitzGerald: Allow me to conclude my sentence before you interrupt. People with soft hearts and soft heads will go around demanding that Mr. Mac Stiofáin be released. There are bound to be such people. Indeed, this country has suffered for a long time from the menace of local authorities passing resolutions on such matters which are not within their competence and which can confuse the whole situation. On that issue the Taoiseach spoke for the vast majority in the House and in the country when two days ago he explained why it was not possible to release such a man without undermining the whole system of law and that, if any man could get himself released by going on hunger strike, law and order would break down completely. Those of us on this side of the House are totally in agreement with the Taoiseach's statement on that. Nothing that may be said from outside will shake that view.
Of course, there are people who allow their human sympathy to overrun their judgment in such a matter. We can understand that, but it is our job in this House to withstand such pressures, to stand by the Government on an issue of that kind, and we do so. Unfortunately, the Government have confused the issue by sacking the RTE Authority and by the consequent effects of that in regard to Mr. Kevin O'Kelly. They have confused the issue by introducing a Bill with repressive elements against which we have to protest and which we must seek to erode and  eliminate. It is unwise and dangerous to confuse this issue. The Government have failed in their responsibilities by so doing.
We have a complicated problem, and it is not easy for us to try to tread our way through this impasse. We have to make it clear that we stand against the dismissal of the RTE Authority because they were put into an impossible position by the refusal of the Minister to clarify his directive. We have to make it clear that we stand by the action of the courts in enforcing the law in the case of Kevin O'Kelly, although many of us may feel individually that the sentence was too harsh and hope that on appeal it will be reduced. By the way, if I expressed that sentiment elsewhere than in this House after this Bill is passed, it would render me liable to a jail sentence, which is one reason for amending section 4.
There are aspects of this Bill which are dangerous and which should be eliminated. We feel the Government were quite right in their decision not to release Mr. Mac Stiofáin and that they are quite right to enforce the law that exists at the moment against the IRA, as they are now beginning to do, though still in a half-hearted manner. We have to get across that complicated position because so many issues have been raised and it is not in the interests of the country that the matter should have been complicated. It would have been far better if the Government had sought the co-operation of the Opposition and enabled us to stand firm on this issue and if the Government had not confused the issue by dismissing the RTE Authority and if the Government had brought in legislation to which this House could have agreed. The Government have chosen not to do it that way. They have chosen to divide the country at a time when the country should have been united on these issues and that is something that will be held against them in the years ahead.
Looking now directly at the Bill, let us be clear about it, as all speakers have said, parts of the Bill are totally objectionable, parts of the Bill need  amendment, parts of the Bill are acceptable. Each of us can make his own judgment on that. There may be minor variations on that in regard to particular points. There are certain features of the Bill which to us are totally objectionable. Let me spell them out. It is important I should. There should be no confusion about this. We are opposing this Bill on Second Stage because it contains some things so objectionable that to leave them to Committee Stage and approve the Bill in principle would be open to the misconstruction that we are willing to concede matters which involve infringement of the liberties of the individual which are unnecessary and dangerous. We want to make that clear. We do not want to be put in the position of having it suggested that we are opposed totally to some sections of the Bill which seem to be useful amendments of the law or do not recognise the need for certain other changes although we may disagree with the wording. Let us, therefore, isolate those problems which to us are crucial.
Dr. FitzGerald: The amendment refers to certain parts of the Bill. I am glad Deputy Dowling and Deputy Moore reminded me to say that the wording of the amendment was dictated in that form by the rules of procedure of the House and that although the amendment as originally drafted referred specifically to sections 3 and 4, on the advice given to us by the officials of the House we had to change that because otherwise we would have been precluded from putting down amendments on Committee Stage to those sections.
Dr. FitzGerald: A Leas-Cheann Comhairle, you know that that is true and that the amendment originally referred to sections 3 and 4. That was changed because that would have prevented us from having Committee Stage amendments. You know also, Sir, that the amendment, as originally drafted, included as a final clause a statement requiring a time limit to be put on the Bill and that once again the inclusion of that, had we left it there, would have precluded a Committee Stage debate. It had to be deleted before the Bill came to the House, on the advice given to us by the officials of the House. These are the facts. You know them. The officials know them. We know them. Those people over there will not confuse the issue by suggesting that that is not true.
Dr. FitzGerald: These are the issues for us: there is a problem in section 3 subsection (2), a problem in section 4 and the problem of absence of a time limit. These are the three points we put down in our amendment and the three points that we want to put to the House at this stage.
First, subsection (2) of section 3, in its present form, for reasons stated and which I cannot repeat because I do not want to delay the House, is objectionable. It is objectionable because, in fact, it puts the onus of proof—contrary to what the Taoiseach said—here he is wrong—he did not develop his suggestion that the onus of proof was not shifted because he could not develop it—the onus of proof is shifted to the individual concerned. He is put in the position where, unless he can persuade the court of the negative proposition that he is not a member of an illegal organisation he can on the word of the chief superintendent be sent to prison. We cannot accept that. The individual concerned must as a minimum be given an absolute right to rebut the view of the chief superintendent.
Dr. FitzGerald: This is a provision which is already in the Offences against the State Act. In section 26 of that Act that is precisely what is done. What we require is that the wording of section 26 be applied here in this section. Section 26 reads:
Where in any criminal proceedings the question whether a particular treasonable document, seditious document, or incriminating document was or was not published by the accused (whether by himself or in concert with other persons or by arrangement between himself and other persons) is in issue and an officer of the Garda Síochána not below the rank of chief superintendent——
——states on oath that he believes that such document was published (as the case may be) by the accused or by the accused in concert with other persons or by arrangement between the accused and other persons, such statement shall be evidence (until the accused denies on oath that he published such document either himself or in concert or by arrangement as aforesaid) that the accused published such document as alleged in the said statement on oath of such officer.
These words are in section 26. I noted with interest when the Taoiseach was speaking that he gave as precedent for section 3 (2) this section 26 and said that the words were identical but the words are not identical.
Dr. FitzGerald: The words are not identical because in this section 26 there is an absolute right of rebuttal. If the accused does give evidence, then the chief superintendent's evidence is null and void; it ceases to exist. That is the position. That was omitted in this legislation in section 3 (2) and in omitting it the Government have turned something that in extreme circumstances could be  accepted to defend the State into something totally unacceptable. We are not prepared to accept that.
Dr. FitzGerald: As far as we are concerned, the failure to include these words or similar words to similar effect giving the accused person absolute right to rebut on oath such accusations, and by so doing to eliminate the evidence of the chief superintendent, makes this totally objectionable to us on this side of the House. I want to make that perfectly clear. Let there be no doubt about it.
We note with interest, first that the Government in presenting this legislation deliberately omitted these protecting words and, secondly, the Taoiseach tried to mislead the House into believing that, in fact, this section was based on and similar to section 26, when, in fact, he knew it had been changed in this manner in this Bill to the disadvantage and prejudice of the accused person. That is the first point, which is one which is totally unacceptable.
The second point is: in section 4 there are provisions which prejudice innocent people. Section 4 is drafted in an extraordinarily wide way. The suggestion in the Minister's opening statement that it did no more than turn into statutory form the law of contempt was, to say the least, contemptible. Let us pick out the relevant words and see what is meant. The section says:
A statement, meeting, procession or demonstration shall be deemed to constitute an interference with the course of justice if it is intended, or is of such a character as to be likely, directly or indirectly to influence any court, person or authority concerned with the institution, conduct or defence of any civil or criminal proceedings (including a party or witness) as to whether or how the proceedings should be instituted, conducted, continued or defended, or as to what should be their outcome.
The Minister tried to pretend, of course, that there is no problem there because, unless the person was guilty of an offence and intended to be guilty of an offence he could not be caught under that. We are not going to be taken in by that argument. The provision here is one where people who take part in a meeting put themselves at risk because if at that meeting anybody makes a statement, makes any reference to illegal proceedings, the person by attending that meeting is at risk and the onus of proof is then on him that he did not, in fact, intend by participating to support that attempt to interfere with justice.
Let us see how far this can go. There are advice columns in newspapers. There are even TDs who give advice occasionally. Occasionally, there may be programmes on television when people are asked their opinion and where people, lawyers or otherwise, say: “I think you have a case” in relation to a particular matter. That statement: “I think you have a case” could come under this section here. This is, as it stands, dangerous to freedom of speech for that reason and dangerous to any individual who attends a meeting where such matters are discussed or where anybody is likely to make any comment on any public case. That is obviously too wide. No Opposition anywhere in the world could accept legislation of that kind unless it were to fail totally in its duty. As far as we are concerned that must be cut down to size. If there is a reason, which we have not heard, why it is necessary to turn the law of contempt into statutory form, then let us do it in a manner which confines this to cases where there is genuine contempt.
If there is to be an area of discretion and if it is necessary to make provision for borderline cases, let us leave that to the court and to the  law of contempt and let us confine the statute law to those things that are intended clearly to be interference with the course of justice. So far as we are concerned, unless there is a willingness to narrow that down so that the innocent are protected and so that only those who are clearly guilty of trying to interfere with the course of justice are contemplated by it, we have no alternative but to reject the Bill.
The third point that is crucial as far as we are concerned is the question of a time limit. After all, the Offences Against the State Act has been on the Statute Book for the past 33 years. A state of emergency was declared during the war and it is still in existence. There has been too much legislation that has been expressed to be needed for a temporary situation but which became permanent and remains a permanent threat to the lives and liberties of the people. We cannot accept that the Bill, even modified in the way we suggest, as it would need to be before this side of the House would have anything to do with it, should be brought in in permanent form. We know there is a crisis now and we wish to help the Government by all reasonable means to deal with it. We will not be found wanting in that regard if the Government meet us but we are not prepared to give powers to the Government that would continue long after the crisis ended. A time limit on this Bill of a period of one year is essential. Those, then, are the essential elements. They are the points that we wish to get at and which were in our original amendment before it had to be modified to comply with the rules of order of this House. Unless the Government meet us in regard to section 3, subsection (2), section 4 and the time limit, we shall vote against them, both in relation to our amendment and to the substance of the motion.
Dr. FitzGerald: If the Government are concerned to have the co-operation of the Opposition regarding the threat  to the security of the State it is up to them to draft legislation and to accept changes from the House that will result in legislation that we can accept in these special circumstances prevailing but if the Government insist on putting innocent people at risk whereby any chief superintendent can swear a man into jail, if they insist on legislation which involves anybody attending a meeting being put at risk because somebody says something out of turn and if they insist on having permanent legislation to deal with a crisis that is temporary, they will get the negative vote they deserve from this party.
Minister for Transport and Power (Mr. B. Lenihan): First, I shall deal with the points made last by Deputy FitzGerald because it is in this area that the greatest amount of misconception has arisen. The Deputy, quite dishonestly in my view, and not in proper legal fashion has added fuel to these misconceptions regarding interpretation of the Bill. Sections 1 and 2 and subsection (1) of section 3 are merely extensions, amendments or improvements of the existing Offences Against the State Act. The first point on which Deputy FitzGerald made a dishonest legal argument relates to subsection (2) of section 3. This is a subsection that has given rise to very great misconceptions. Let me make it clear that under this subsection there is no question of a chief superintendent swearing a man into jail, to use Deputy Fitz-Gerald's emotive phrase and there is no question of the onus of proof being shifted.
Mr. B. Lenihan: Every person who is charged with a criminal offence is innocent until he is proved guilty. That fundamental principle remains and before a verdict can be reached either by a court or by a jury, the judge or the jury must be satisfied that the prosecution has been proved beyond all reasonable doubt. That essential principle still remains.
Mr. B. Lenihan: Perhaps the Deputy, who knows very little about law, would allow me to continue. The procedure in our country under the common law system has always been that the evaluation of the weight to be attached to any evidence in proceedings before the court is a matter for the court. To suggest that evidence is always proof or that the existence of admissible evidence shifts the onus of proof is an astonishing proposition but under this subsection the basic common law procedure with regard to evidence and the evaluation of evidence remains. An officer of the Garda Síochána who is not below the rank of chief superintendent can give evidence stating that he believes that the accused was, at a material time, a member of an unlawful organisation and this statement shall be evidence that he was then such a member. It can be admitted as evidence but there is no question of that evidence in itself putting a man into jail or of shifting the onus of proof——
Mr. B. Lenihan: Our courts operate under the principle that before an accused person can be found guilty he must be proved guilty of the offence beyond all reasonable doubt. There is nothing of a conclusive nature as has been suggested here and elsewhere in regard to the subsection. If the accused goes into the witness box and says he  is not a member of an illegal organisation, the onus is on the chief superintendent, there and then, to prove his case.
Under that system of the administration of law it is clear that once an accused man goes into the witness box and says he is not a member of an illegal organisation, the onus of proof shifts to the chief superintendent.
Mr. B. Lenihan: If you start writing in matters of that kind, the rights of the accused are weakened. His rights are strongest under our system of courts. If we have confidence and faith in our courts——
Mr. B. Lenihan: Deputy FitzGerald made much play of this; in the event of the accused giving evidence to the effect that he was not a member of an illegal organisation, the onus would be shifted totally to the chief superintendent.
Mr. B. Lenihan: Regarding section 4, the misconception in so far as Deputy FitzGerald is concerned, would seem to be that he is reading subsection (2) and taking from it matters relating to statements and to the organisation of and taking part in meetings and alleging that in some way this is so wide as to include many such meetings or demonstrations within  a wider net. The Deputy did not refer to the basic fact that subsection (2) is subject to the section as a whole which deals with meetings, processions or demonstrations which interfere with the course of justice and which may directly or indirectly influence any court. That section read as a whole and without taking any excerpts from it is a statutory duplication of the existing law of contempt of court that we have had for hundreds of years——
Mr. B. Lenihan: They were the two main points raised by Deputy FitzGerald on the legal aspect apart from the aspect relating to the time limit. There are arguments for and against here but the real heart of the matter is the criticism of those two sections—in particular the criticism of subsection (2) of section 3—which in my view is largely dishonest and erroneous in law. The very fact of criticising that subsection as it stands is a direct reflection on the courts here which will always operate the laws of evidence, operate the common law procedures in regard to the onus of proof, in regard to proof beyond all reasonable doubt, in regard to assessing evidence and only convicting a person when the court is satisfied beyond all reasonable doubt. These are the basic matters in our system of criminal law. They are not affected whatever by that subsection.
I should like to deal now with some of the wider aspects, on the political level, raised by Deputy FitzGerald. I thought candidly that his speech was hysterical, convoluted and dishonest. Hysterical, probably by reason of affairs within his own party at present, that is understandable, but there is no point in standing up in this House and debating this matter as if it were a Fianna Fáil matter. It is not a Fianna Fáil matter. Much of the content  of his speech was devoted to an attack on the Fianna Fáil Party and on various things that have happened in the Fianna Fáil Party. Those matters are irrelevant today. In the context of debating this Bill the issue is one of Government and of parliament and representative democracy.
Mr. B. Lenihan: This sort of anti-Fianna Fáil speech does not help. I will go through to the heart of the principle that is involved in both what Deputy Cooney said yesterday and what Deputy FitzGerald said today in regard to the alleged inoperation of various sections of the Offences against the State Act. There were various allegations that the Government did not pursue this or that aspect of illegal organisations' activities in a proper way.
Fundamentally what Deputy FitzGerald and Deputy Cooney are doing is attacking the independent law officers and the senior officers of the Garda Síochána. They are not attacking Fianna Fáil; they are attacking the permanent law officers of this State and the permanent senior officers of the Garda Síochána and accusing them of not administering the law in certain circumstances.
Mr. B. Lenihan: The problem of the police authority of this State, the Garda Síochána, has been that sections of the existing Offences Against the State Act and the general law of this land in their view have not been effective enough in regard to the apprehension of the people whom Deputy FitzGerald hypocritically deplores  should continue to be here. Deputy FitzGerald cannot have it both ways and Deputy Cooney cannot have it both ways. It is a fact that we have brought in this legislation on the advice of the senior police officers of the State and on the advice of the law officers of the State who have advised us that some of the existing sections of the Offences Against the State Act and some aspects of the general law of this land are not effective enough to enable us to deal properly with unlawful organisations as it is suggested we should deal with them and has been suggested we should deal with them by Deputy FitzGerald, by Deputy Cooney and by Deputy O'Brien for the past year.
Mr. L'Estrange: What about the chief superintendent in Mullingar who sent up the names of four men who took out rifles and fired shots? He never was answered yet. The chief superintendent did his duty but the Government let him down. It was a political decision and you are afraid to act. Their photographs appeared on the paper. The chief superintendent sent up the names and said: “Here they are. When will we arrest them?” It is still on the files and you never answered him.
Mr. B. Lenihan: This particular amendment of the Offences Against the State Act has been introduced by the Government in order to deal with a situation where we were advised by our law officers and by the senior officers of the national police authority that the law as it stood was not effective enough in certain areas to deal  with a problem with which Deputies opposite have been asking us to deal for the last two years.
Mr. B. Lenihan: The suggestion made by Deputy FitzGerald and by Deputy Cooney that in some way we should explain the specific deficiencies in regard to sections of the Offences against the State Act and explain the deficiencies in the general law which led us to the introduction of this Bill is a highly irresponsible suggestion. We have no intention of telling the enemies of this State where our existing law is deficient in dealing with them.
Mr. B. Lenihan: But our law officers have examined these deficiencies, have taken the advice of the police officers of this State in regard to these deficiencies, in regard to the apprehension of the enemies of this State, and as a result of that advice this Bill emerges. That is the reason and the purpose of this Bill and that is the matter that really counts in this debate. Are the people opposite in the Labour Party and in Fine Gael willing to face up to the responsibility of dealing with this, willing to face up to the logical consequence of what many of them have been saying? There is no point in indulging in cant or hypocrisy and trying to run away from the situation which Deputies in the Labour Party and the Fine Gael Party know well exist. We in Fianna Fáil are not going to——
Mr. B. Lenihan: The Government will not run away from this situation. The Government are facing up to the situation on the advice of their own law officers, on the advice of the  national police authority, through the senior officers of the Garda Síochána. We are taking the necessary statutory action to remedy deficiencies that exist in regard to the apprehension of what people opposite have called the enemies of this State. When we seek to do something about it we meet hypocritical opposition, we meet double-talk and convoluted reasoning. We intend to go ahead and make this law.
|Last Updated: 15/09/2010 01:08:21||Page of 73|