Friday, 20 August 1971
Seanad Eireann Debate
Mr. Lyons: Yesterday evening I was trying to add my voice to the others to say why section 4 should not stand part of the Bill. At that time I was about to compliment the Minister on the good humour he had shown throughout the day and to say that all of us had a certain amount of sympathy with him because he was under a barrage. While the legal aspects of the Bill may be dry for the person listening, we could go out in the sun if we felt it was too dry to listen to, but the Minister could not. His attitude as compared with that of the Leader of the House last night was very desirable and something on which he should be complimented. The Leader of the House can be bitingly sarcastic, but at times the glint in his eye takes away from the cutting sarcasm. However, it is to get myself in trim that I am making these introductory remarks.
I still say to the Minister that he should withdraw section 4. I say it not because the leading gentlemen on this side of the House have said it but because churchmen, theologians, newspaper columnists and commentators have, from the very moment that this Bill was introduced, condemned practically all the sections in it not for what the Bill intended to do, because, like my colleagues on both sides of the House, I realise that subversive elements who attempt to do something illegal must be controlled. If it is made  abundantly clear that the common law is insufficient to control them, it is then necessary that legislation be introduced to do so. There is no point in using a steamroller to kill a slug. There is no point in introducing legislation to deal with a certain aspect of something when in its implementation innocent people may be drawn into the net. That is something that the lawmakers and the Members of the Oireachtas have to ensure will not occur. It is indeed an excellent thing that even fine days, when most of us would rather be on holidays than here, are taken up arguing on aspects of the Bill to ensure that, in so far as possible, the Bill would give what would purport to be fair play to everybody without excluding individuals whose guilt, as was pointed out here by Senator O'Higgins, may be as great as that of others who would be included.
These are the things that the Seanad must guard against. In this House where the atmosphere is not as hectic as in the other House, the Minister can sit back and listen to the arguments put forward and deal with them in a calmer and more realistic atmosphere. Practically every book that was written on law was brought into the House. I did not see the Bible. I thought some of my friends on the other side of the House might come with the Bible and point out that the serpent was either advocating or inciting Eve in the affair of the apple. Whether it was advocacy or encouragement or incitement, the end result for the human race was the same. The end result for everybody might be the same whether or not the words that the Minister has promised to delete are used or some other words are used.
I am concerned about two aspects of section 4. Guilt by association is something that I am worried about, and while I would not go to the same lengths as Senator Boland yesterday evening when he talked about county councillors or other people coming into the net if they passed resolutions supporting certain actions or attitudes, I am still afraid that the guilt by association provision is probably as dangerous as subsection (1) of the section that deals with newspapers. Every  newspaper in Mayo has condemned section 4 of the Bill in leading articles and in features. Reputable papers like the Western People, the Connaught Telegraph and the Mayo News have written article after article condemning it. Their fear is, of course, that, whatever the Minister may say his intentions are or would be, another Minister who might not be as broadminded as the present Minister would be sitting in his seat and could use the Bill in a way that the present Minister had not designed or intended it to be used. In his introduction to the Bill the other day the Minister on several occasions said: “What I believe”, “what I intend”, and “my interpretation is such.” That is all very well if the courts interpret it in the same way as the Minister. If any advocate in the court got up and said that on the introduction of the Bill the Minister said it was not intended to apply to certain people, I do not know if this would be a good defence in law, but I am afraid it would not. I believe the Minister should forthwith withdraw section 4, whether it means that the legislation would be delayed and whether it means that another long debate would take place in the Dáil. It is a far better thing to delay legislation, to have a long debate in the Dáil, than to push through something that may be found to be repressive and unjust.
Again, I am not as much concerned about other aspects of the sections that have been passed. I believe there is a necessity to control subversive elements where they go in on land or property that belongs to another. While I may have some sympathy with people who are denied the right to fish on the rivers because the rivers are held by an absent landlord, I still believe the only way the rights can be taken from an individual of that kind is through the Houses of the Oireachtas. I would never like to see an individual who would not get enough votes to be elected to a parish council going in and claiming the right to take away from somebody what was lawfully his. It is because it is necessary that these things be done that legislation is put before this House. But the way in which the Bill was drafted was unfortunate.  As time goes on, the Minister realises this. I would appeal to him and to the other legal gentlemen here today to find some means of getting out of the rut into which the Minister has brought himself and the House. In the discussion today I hope the Minister will accept the reasoned arguments and amendments that will be put forward from this side of the House.
Mr. Boland: When I was speaking last night I mentioned that the four national newspapers had all expressed their definite opposition to this section of the Bill. Almost immediately afterwards the Leader of the House asserted very definitely that one of those newspapers was not opposed to the Bill. Like Senator Lyons, I do not want to delay the House. Although I have the relevant newspapers here and I could quote from them if the House wishes I will do no more for the moment than remind the House of the editorial of the Irish Press of 27th July in connection with section 4, an editorial which I am sure the Minister must now know almost by heart; the special display box of the Irish Independent, page 7, 29th July headed: “Why we deplore this Bill”; the several editorials in The Irish Times of 22nd July, 30th July, and 5th August, all condemning this Bill and especially this particular section of it, and the editorial of the Cork Examiner of 6th August which criticises the Bill as being unnecessary and intolerable. It suggests it will not get very far because the superior courts of the country will deal with it in due course.
Without quoting from these editorials, because they have been so often quoted in other places, I want to make sure that the record of the House and, I would hope, the recollection of the Leader of the House are put straight by reminding the House of these editorial comments written in each of the four national newspapers in addition to the several editorials in the Evening Herald, the last being 29th July. The other national evening newspaper does not carry editorial comment. I just want to emphasise to the House that it would be led astray in its thinking if it were to accept the word of the Leader of the House that  one of the newspapers was not opposed to this section.
Tomás Ó Maoláin: May I correct the good Senator? I did not say that one of the newspapers was not opposed to the Bill. What I said was that one of the leading national dailies had so little fear of the Bill and so little belief in the fantastic stories of the Opposition that the editor in control had instructed his staff to work the newspapers in the same way as they had been doing before the Bill was ever mentioned. I am cursed with a very long memory and I am blessed with a very good memory, and there is no need whatsoever for Senator Boland to set my memory straight. There is no need for him to quote the dates of all the various editorials in the papers. If he searches a little more he will find the editorial in the paper to which I have referred.
I had not intended to contribute to this debate but now that Senator Boland has spurred me on a little, I may as well say a few words on it. There seems to be an idea that because the newspapers, particularly the Government daily and the Cork Examiner, of course, are opposed to this Bill, therefore, God has spoken and everybody must bend the knee. I should like to ask from whence these newspapers got this infallible teaching which they pass on to the people? Who are they or what are they anyhow? They are only just ordinary men like the Senators here; they have no more claim to infallibility than we have. Yet they posture, their newspapers posture, as if they had been speaking by direct inspiration of God and the prophets. They are lauded here and produced to us by Senators on the Fine Gael benches as if, because the newspapers said so-and-so, everything else is wrong and they are right; they must be right. Newspapers are not always right.
Granted now and again they are right, granted now and again they reflect public opinion. They do not always reflect public opinion. I do not see any proof that they reflect public opinion in their attitude on this occasion. Since the idea seems to have gone abroad that we must accept the  newspapers as the infallible guide to the minds of the people and that they preach the right gospel at all times, let me remind the House of a couple of occasions on which the newspapers were diabolically wrong and the people were correct. Let me remind the House of a period when the Government elected by the people were making an effort to bring an Irish Constitution into line with the wishes of the people——
An Cathaoirleach: The Chair appreciates that Senators are entitled to deal with the question of newspaper comment on this Bill, but it feels that the history of newspaper comment in this State is probably not relevant to section 4 of this Bill.
Tomás Ó Maoláin: I shall be brief, but in order to prove the thesis which I have submitted I must show where the newspapers on occasion did not reflect public opinion, since it is alleged that now they speak infallibly in reflecting public opinion on this Bill.
Tomás Ó Maoláin: I will be brief. I shall just mention a few items as proof. During that period big daily newspapers were wrong. The daily newspapers opposed the efforts that were made to bring the Irish Constitution into line with the wishes of the people. During that period also there was a very intense time of struggle with the British Government in regard to who was right and who was wrong and the interpretation of it. Economic powers were used against us and against our industries at that time. The papers at the time, by and large, backed the British attitude as against the attitude of their own Government, these great daily newspapers of which we have been speaking, with the  honourable exception of one. Let me remind the House also——
Tomás Ó Maoláin: If I remember rightly the newspapers also connived at the Fine Gael-Labour campaign of distortion and misrepresentation. I could keep on giving the House instances and quoting where these newspaper editors were completely wrong in regard to their interpretation of public opinion.
Tomás Ó Maoláin: They were damn fools. We regarded PR as being an indication as to what the people were going to do with the Government. It got the biggest majority that it had for years. Therefore, do not quote PR. I feel that it is reducing the thing to absurdity to put these people up as the infallible guides to the thoughts of the people and to the minds of the people in this country. They are not. Anyhow, so far as I can gather from following the newspapers on the position here, the only opinion they reflect is the opinion of the organisations which were quoted by the Minister for Justice in the course of this debate. If Senator Boland likes to go back to the files of these newspapers, he will find that that list is a very peculiar one. He will find that there are a couple of organisations which appear whenever there is any occasion to indulge in a bit of rioting or a bit of breaking up, with the same names and the same personnel generally. They apparently interchange their membership as occasion demands. As far as I can find out these are the only organisations, with the addition of Women's Lib, which  has now joined the racket, for whom these newspapers claim to speak as representing the opinion of the people.
There is a well-known political propagandist, one of the Fine Gael propagandists—a very able gentleman I might add—in the other House who always prefaces his speeches with these words: “We all know that the Government did this or did not do that”, or he alternates that with “Everybody knows that the Government——”
Tomás Ó Maoláin: This is the technique of the newspapers, too. “Everybody knows that the Government are wrong in this.”“Everybody knows that the Minister is wrong in this.”“Everybody knows that he should not have done this, he should have done the other thing.” Nobody ever gives credit to the Minister for having a little bit of intelligence, too, or a little bit of wisdom. I have been listening to the legal geniuses that we have on the other side. There are most expert gentlemen on the other side. I followed the arguments very carefully and I also followed the Minister's reply.
Tomás Ó Maoláin: In fact, I have listened attentively to the whole debate. I found it most interesting and I must say most informative. But I found also that no matter how many times the Minister explained his point of view it was still being rammed down his throat that he did not know what he was talking about and that they were the only people who understood the section or the amendment or the need for change. No matter how the Minister explained it did not matter. He has no case. They had all the wisdom on their side. That is patently absurd.
Tomás Ó Maoláin: I think the people on the other side of the House should take a tumble to themselves and realise that this Bill is not intended to dragoon the people or to be tyrannical. It is aimed to preserve democracy. It is aimed to preserve civil rights and it is intended, as far as we can do it, to make certain that the ordinary person in this country who, under the Constitution, is entitled to hold property will be allowed to hold that property without hindrance from anybody.
Professor Kelly: We do not dispute that. This Bill is, technically, a “bags” from start to finish. It is sloppy in its drafting and is impractical, illogical and unconstitutional in its working out. We never said that the Minister did not understand what he was doing. Our complaint is that he understands it too well but he is not prepared to open his mind to the objections we have put forward.
Professor Kelly: May I just refer briefly to a point which is relevant to section 4 and which Senator Ó Maoláin has raised? I do not think that the newspapers are God Almighty any more than Senator Ó Maoláin does. The reason why the newspapers have been mentioned on this line is not that the point of view on which they are  unanimous is one to which we must all bow but that the content of section 4 is peculiarly relevant to their operations. That is the reason why they have got into such a state of alarm about it. In my view it is, perhaps, exaggerated alarm but it exists because they think the content of section 4 will affect their operations. I think their alarm will be somewhat allayed by the Minister's offer of yesterday even though the way in which the offer was made is not satisfactory to us from other points of view.
Other legislation or other governmental measures can be criticised because the people whom these measures tend to affect are displeased by them and are unhappy about them. For example, it can be seen that there have been two changes of front by the Minister for Education in regard to his community schools plan because of virtually unanimous opposition on the part of the teaching profession. If the Minister for Education is sensitive to that opposition more power to him. He is right to be sensitive to the unanimous opinion of the teaching profession or to unanimous unhappiness among that profession not because the teaching profession are God Almighty but because his plans in that regard affect them. That is why he is well advised to retreat and think of them.
The Civil Service represents a very large slice of the population of this State and when you add in their dependants they must constitute a very large slice of the voting population of this State. When the Civil Service quietly— by no means riotously or conspicuously but quietly—let their point of view be known about the proposed movement of two Government Departments to Athlone and Castlebar that project was dropped and rightly so. These people are not soldiers who can be sent off to Siberia in the morning. They are people who have wives and families and who have made plans on the expectation that they will be left in a place for which they have, perhaps, left the country in order to be. That is the reason why that plan was dropped. It was not dropped because the Civil Service are God Almighty but because they are the people who are  primarily affected by this governmental measure.
The importance with which the Press should be treated in this connection is not because the editor of one newspaper is a man much wiser than the rest of us but because he is somebody who is peculiarly liable to understand and be sensitive to threats which he sees made in this section. That is the only relevance which the newspapers have in this situation. I do not attach any further importance to them than that.
Mrs. Robinson: It is not my intention to delay the House on section 4, at least on Committee Stage. We are, I believe, under threat of completing the Committee Stage today and because of that it could be a long and tiring day. There is one point which has not been sufficiently made on the section as a whole and which I view with considerable alarm. That is the extension of the idea of criminality, that a person could be precariously liable for a statement made by another person if he is a member of a group—group has not been defined in this section—and that that person could be liable on indictment to a fine of £500 or to a penalty of three years imprisonment, or both the fine and the imprisonment.
This is a departure from the general principle of the rule of law. A person will be liable for a statement made by another person, if he can be linked in a group, unless the person actively dissociates himself and gives what has been described as an adequate explanation to the court in these circumstances. We should be very, very slow to extend the idea of imposing criminal liability in such a way. This is another reason why I shall be bringing in amendments to this section on Report Stage.
Mr. Horgan: When Senator Ó Maoláin was speaking on this section he referred in particular to the weight which, in his mind, is attached to a condemnation of this section by so many newspapers. He went to great pains to attempt to answer their arguments by setting up the target which was entirely of his own fabrication. Senator Kelly has already identified it  fairly well. The newspapers do not claim to be, nor do I believe they have ever claimed to be, as infallible as Senator Ó Maoláin appears to think they are claiming to be. In this sense, the argument that the Leader of the House was answering was not one which had been made by the newspapers or by anybody on this side of the House but by the Leader of the House himself. It is, in this sense, a decoy. The Leader of the House's recital of the occasions on which the leader writers and commentators in newspapers have been wrong would, I think, also have carried more weight on this side of the House if he had added to it the list of occasions on which the Government party has been wrong.
I do not think newspapers have any monopoly of righteousness in this matter. If anything, their comments on matters of public interest tend to be more provisional and less didactic than those of most Government Ministers. In passing, I might point out to the Leader of the House that his references to the Constitution of 1937— and the controversy which surrounded that in the newspapers and elsewhere —might have been fully thrashed out by an announcement of the fact that the Constitution of 1937 was passed on a minority vote in this country.
Mr. Horgan: The Leader of the House came to the conclusion that the fact that there was a newspaper campaign against this section of the Bill in no way proved that this section of the Bill was wrong, unnecessary or dangerous. I think his case would have been strengthened if he had been able to point to the existence of a public opinion of any magnitude whatsoever outside the Government party, and, indeed, outside a certain section of the Government party, in favour of this  section of the Bill. I do not believe he is able to do that for the very obvious reason that there is only a very small section within the Government party which in any way fully supports this section of the Bill.
Mr. Horgan: In his comments generally on the newspapers and their attitude to the section of the Bill, Senator Ó Maoláin displayed a sturdy independence of the mass media which, I think, is very healthy. I am only surprised that it is not shared by other members of his party and of all political parties who shower newspapers daily with the record of their utterances and go several shades of pink and purple when they find that they have not been published.
Mícheál Cranitch: Is mian liom cúpla focal a rá. Tá sé mar nós de réir deallraimh tosnú le habairt den tsaghas seo ach níl sé i gceist agam moill a chur ar dhreachtáil an Bille. Pé scéal é, níl sé i gceist agam moill a chur ar dhreachtáil an Bille ach caithfidh mé cúpla focal a rá mar gheall ar an mBille, go háirithe ar alt a 4.
I was cruelly disappointed yesterday and last night in this House by the air of unreality that seemed to dominate the whole proceedings. Last week when we were dealing with the Second Stage  I was delighted with the standard of the debate. The issues at stake were faced realistically, constructively and positively. But what a change yesterday. Here we were all day, well into the night, discussing the difference between tweedledum and tweedledee, while a historic chapter was being written in the history of this country, while the British Army were shooting innocent people——
Mícheál Cranitch: Ceart go leor. But I want to emphasise the unreality of the debate so far. Various phrases and things came into my mind like midsummer night madness but, above all, Goldsmith's Deserted Village kept intruding—the old schoolmaster who “e'en though vanquished he could argue still”.
Most of the arguments brought forward yesterday by our good friends on the other side of the House were answered and answered fully. Quite a number of them were answered in anticipation by the Minister in his introductory speech here. If I may refer to the Minister's introductory speech he says:
In order to commit an offence of “encouraging or advocating” under section 4 (1) of the Bill, a person must first of all have to have the requisite mens rea or guilty state of mind. In other words, the offence cannot be committed innocently or by mistake. Secondly, a person must set out to encourage or advocate another person to commit an offence under section 2 or section 3 of the Bill...
Every reasonable person, and I have no doubt the vast majority of our friends on the other side of the House in their heart of hearts are in favour of this Bill. Every person must accept and does accept the desirability of this Bill. Section 2 makes it an offence to forcibly enter land or a vehicle. Section 3 has to do with forcible occupation  of land or a vehicle. It is not alone wrong to do the acts but it must follow, as a necessary corollary, that a person who encourages or advises or stimulates or suggests to another person that it would be a desirable thing to commit an offence, that person must also be guilty. If we go back to the very basis of Christianity, the Ten Commandments, if we think back on our catechisms for a moment, not alone is it wrong to steal but it is wrong to take part in planning for stealing or advise a person to steal. It is not alone the person who commits the actual offence on the spot who is guilty but those who incite, encourage or advocate the commission of these offences.
I was cruelly disappointed with the trend of the debate yesterday and the air of unreality that was about it. It has been said that people do not want this Bill. I can assure the House, and everybody knows this, that the whole country is in favour of this Bill. There is not a question about it. I have not met any person yet who understood what this Bill was about who found any fault with it. Certainly I found a number of people who did not even know what the Bill was about. They formed their own opinions of it as a result of reading newspaper articles. I was speaking to a highly intelligent person in a travel agent's office recently. This Bill was mentioned and she asked me: “Is that the Bill that authorises guards to go in and search for arms?” She was an extremely intelligent person but——
Another thing that upset me considerably was the use here in this House of the words “repressive legislation”—the statement that this Bill was repressive. If these statements can be made in this House we cannot blame the people outside the House for thinking that it is repressive. We can hardly blame all these people who took it on themselves to march up to Aras an Uachtaráin from O'Connell Street one night—NATO, the Communist Party  of Ireland, the Connolly Youth Movement, the Dublin Housing Action Committee, etc, etc. We can hardly blame them for regarding the Bill as being repressive. We can hardly blame them for publishing these questions “Who would be affected by the Bill? Trade unionists, journalists, homeless, fishermen, mobile home and caravan dwellers?”
Mícheál Cranitch: To come back for a moment to the question of the Press. Neither Press nor radio is mentioned in section 4. That is a thing that some people do not seem to realise yet. If anybody does not it is very sad. Let him take up the Bill and have another look at it. Press or radio are not even mentioned. I can well understand why the Press are apprehensive about this. It is a very good sign of the Press to be apprehensive about this Bill or any other piece of legislation that they think, rightly or wrongly, would interfere with their way of life, with their calling, with their profession.
In my own case, if I thought that anyone were denigrating the profession of teaching I would be inclined to take up arms immediately. I would be inclined to do it first, perhaps, emotionally without examining the whole position. It was noticeable during the debate on higher education here in this House that quite a number of academic feathers were ruffled. It is no bad sign of the Press to be apprehensive about anything that they think would interfere with their calling.  It assures the dedication of these men. I have found that most reporters, most journalists and most leading article writers are devoted and conscientious men. Thanks be to God, we have a very high standard in this country. At the same time, we have a number of columnists, political commentators, economic commentators, leading article writers, etc. who seem to regard themselves as being the successors of the oracles and of the prophets of old, who seem to think themselves to be the successors of the guardians or philosopher kings that Plato placed at the apex of this educational pyramid. They seem to think that what they say must be right and they make the terrible mistake of thinking that the people are going to swallow it. However, the people of Ireland are not as guillible as some seem to think. They are entirely different from the British in this particular matter. The British will swallow anything that a newspaper tells them: the people in this country simply do not. Maybe it is because of our oral, rather than our written tradition; maybe it is because we have always been the subject of broken promises, even promises made in writing. Whatever the reason, the people here are rather sophisticated as far as newspaper reporting and newspaper articles are concerned. That is why, in spite of newspaper articles, leading articles, and so on, the people are 100 per cent behind this particular Bill and I believe many people on the other side of the House are also. I am quite honest and sincere about this.
|Brennan, John J.
Cranitch, Mícheál C.
Eachthéirn, Cáit, Uí.
Flanagan, Thomas P.
Honan, Dermot P.
Nash, John J.
O'Callaghan, Cornelius K.
Ó Maoláin, Tomás.
Ryan, Patrick W.
|Lyons, Michael D.
McDonald, Charles B
O'Higgins, Michael J.
Owens, Evelyn P.
Reynolds, Patrick J.
Robinson, Mary T. W.
West, Timothy T.
Amendment No. 18 not moved.
Question proposed: “That section 5 stand part of the Bill.”
Mrs. Robinson: I am opposing section 5 on the grounds that it casts a burden on the defendant in circumstances which I do not feel are necessary. Section 5 reads:
In any proceedings in relation to an offence under section 2, 3 or 4 of this Act or to conspiracy to commit such an offence, unless the defendant shows to the satisfaction of the court that he or, in the case of proceedings relating to an offence under section 4, every person whom he encouraged or attempted to encourage has a bona fide claim to ownership of the land or vehicle, it shall not be necessary for the prosecution to prove ownership of the land or vehicle.
This shifting the onus of proof in an unusual way. It is not unknown to criminal law but it is unusual to cast such a burden on the defendant in this case and it is most unwelcome in these circumstances. I look for some analogy to this law relating to forcible entry, to the law as it prevails in England and, as I have demonstrated sufficiently before this House, in prosecutions within the last few months in England under the Forcible Entry Acts, there seems to have been no difficulty in relation to the prosecution brought and it was not deemed necessary to bring in a provision of this sort putting on the defendant the onus of proving a bona fide claim to the property as a defence.
The argument has been very well made that one of the great problems in putting on the defendant the onus of showing to the satisfaction of the court that he has a bona fide claim to ownership of the land or vehicle is that it might not be easy, or even possible, for the defendant to satisfy the court that he has a bona fide claim of right, although he may himself have believed that he has a bona fide claim of right. This is a very unfair burden on the defendant. Many examples of this could be given where a defendant could not satisfy the court of what the court would regard as a bona fide claim of right, but the defendant might have thought that he or she had a moral right; in other words, that there was not the essential element or criminality in remaining in possession of the particular property. This is a very unfair burden on the defendant in this case. It is unusual; it has not been thought necessary in prosecuting under analogous statutes in England and successfully prosecuting under them. Therefore, I am opposed to this section.
I am also opposed to it for the general bias in this whole statute in favour of property owners. As I have already stated and as other Senators have emphasised, we are creating a new idea in the statute in exempting certain classes of persons from any criminal liability for forcible entry or occupation. We are casting a new burden on defendants: the evidential burden of satisfying the court that they have a bona fide claim of right. I agree with Senator Kelly when, talking about a bona fide claim of right yesterday, he said that he did not think that courts would be inclined to regard a bona fide claim as a moral claim, that they  would probably construe this as meaning a legal claim. It might well be that the defendant would not be able to satisfy the court of a bona fide legal claim to the possession of the property At the same time, there might not be the element of criminality which would justify a charge of either forcible entry or occupation or a charge under section 4.
Mr. O'Higgins: I am not happy about this section at all. In effect, what this section says is that in any proceedings for any of the three offences created by this Bill, it will not be necessary for the prosecution to prove ownership of the land or vehicle, except in one instance and that is where the defendant shows to the satisfaction of the court that he has a bona fide claim to ownership. Then the question of ownership has to be proved by the prosecution. Leaving out that particular case, the section says that in any prosecution for any of the three new crimes it will not be necessary for the State to prove the ownership of the land or vehicle.
From the point of view of convenience of the prosecution that is a very nice situation. It means that what ordinarily would be regarded as an essential proof by the State is dispensed with. I am not happy at all about such a situation, particularly in the context of this Bill, even from a purely practical point of view. I cannot see how it is going to work without at least the possibility of a great deal of unfairness and possibly injustice arising in relation to prosecutions because two out of the three new crimes which are created by this Bill are dependent on the person charged not being the owner, in any sense, of the property.
I do not know how any of the charges under sections 2 or 3 can be made to stick unless the first thing the prosecution does is to allege that the defendant entered property—I am using that to describe both land and vehicle—of which he was not the owner. That is the essential ingredient of the crime that he should not be either the owner entitled to possession and occupation or, in the case of land,  an owner having a more remote interest if we take the definition as it is at the moment. How on earth can the prosecution make a charge stick in those circumstances without proving that the defendant is not the owner?
The Minister may say they need not prove ownership but that only means they have not got to prove who is the owner of the land but they are still obliged to prove that the defendant is not the owner. If that is the situation it would relieve my anxiety to a certain extent because it would not remove, as on the face of it it seems to remove, the entire obligation of the State to prove its case. While not happy about this section, I would be less concerned if the Minister could assure me that the position is that in a charge under sections 2 or 3 the State will have to prove that the defendant is not the owner. That would be better than the situation whereby the State would not be required either to prove ownership or to prove that the defendant is not the owner.
Minister for Justice (Mr. O'Malley): I should like to take up the point referred to by Senator Robinson with regard to a discussion yesterday between Senator Kelly and myself on this question of bona fide claim of ownership. At the time I made reference to moral claims and Senator Kelly very rightly picked me up on it. I am in the difficulty that I am being asked a series of questions here about many quite unrelated things and I find it difficult to be accurate in all my replies. I was not accurate in that one and Senator Kelly was very much nearer the mark in what he said. I say that now so that the House or the public will not be misled.
The best way I could describe the position briefly would be to say that in order to constitute a bona fide claim of right it would be necessary, first of all, that the claim should be one which can exist in law; secondly, that there should be some colour or show of reason for the claim. The important thing I should have emphasised yesterday, and which Senator Kelly did, was that the right must be capable of existing in law. That is not to say that  it does not exist, but it must be capable of existing.
An example of a sort of right that would not be capable of existing would be a claim to ownership of a fishery in a tidal water because it has been well established for many centuries that a several fishery cannot exist in a tidal water. Therefore, no matter how bona fide a defendant was in coming along and saying he genuinely believed he had a right to fish, say, in the Shannon estuary at Foynes—which would be well tidal at that point—and even if a court were satisfied that he thought he had the right, a court could not entertain it because it would be the type of right that would not be capable of existing in law.
Mr. Alexis FitzGerald: There are exceptions to that, are there not? If it is ancient enough you can have a several fishery in a tidal water?
Mr. O'Malley: My recollection is that if you can theoretically or technically prove that you had the right in 1189——
Mr. Alexis FitzGerald: There are such several fisheries.
Mr. O'Malley: The method of proving that you had the right in 1189 is obtruse.
Mr. Alexis FitzGerald: They have been proved in court.
Mr. O'Malley: I only use this question of a several fishery in a tidal water as an example. There cannot be many similar cases related to property as opposed to fishery but it is one example that comes to my mind. In regard to this section I think Senators, and indeed many other people, may well misunderstand this because they seem to be under the impression that section 5 has the effect of reversing the onus of proof in its entirety or to a very substantial degree in relation to an offence under this Bill. That is positively not so. The only effect it has is that it excuses the prosecution in certain circumstances, not in all circumstances, from proving one element in the case against the defendant. I would  beg leave to differ from Senator O'Higgins on this. The element on which in certain circumstances they are excused is not a fundamental part of the case. It is a very subsidiary part of it.
Mr. O'Higgins: Non-ownership is fundamental, surely?
Mr. O'Malley: It is simply that they do not have to go through the full legal process of proving the legal ownership of some property whether a house, a vehicle or otherwise, to which quite clearly the defendants make no claim. One example of this sort of activity that we had in the last six months was the forcible occupation of an aeroplane, a Boeing jet or similar type of plane, which was the property of BOAC and which had just landed at Shannon airport. To suggest that the six or eight members of a subversive organisation who occupied that plane had any claim to ownership of it, to suggest that BOAC was a subsidiary of Sinn Féin, is really dragging things to extremes. Not for one moment did the people concerned claim to have any right to be there or to have a claim or share in the ownership of the plane in question.
Mr. Alexis FitzGerald: They would not have been there if they had any right.
Mr. O'Malley: I venture to suggest they would not, which goes to prove my point that the question of proving ownership in these sort of cases is of no significance whatever in the makeup of the proof of the offence. The important thing to prove is that it was forcible entry or occupation, that is 99 per cent of the offence, to prove the mens rea in so far as it has to be proved separately from the actus reus which of itself would probably prove it in most cases.
Mr. O'Higgins: I would go a long way with the Minister if ownership meant what the normal person thinks ownership means in relation to this Bill but it does not. You talk about people boarding an aeroplane. Surely the State has to prove under the definition of ownership here that those  people had not got permission either from the owner or an agent of the owner?
Mr. O'Malley: The question of permission is an entirely different matter. Frankly, I do not foresee any problems in this regard. One of the matters which everybody seems to overlook is that this is not an absolute exemption or privilege given to the State. It is not something that will always exist in every case. It will only exist where the defendant makes no claim to any sort of interest or ownership or right to property. If he does make such a claim, then the onus is 100 per cent on the State in all cases where such claim is made and where the justice accepts that there is some ground for it because otherwise it could presumably be made in every case.
There is no question of the defendant having to prove he is the owner in order to put the onus back on the State or to prove that he has some interest or some share. It is sufficient if he raises a very mild doubt that he might have some interest or claim or share. If that is done, then the State is back in the normal position of having to prove everything beyond all reasonable doubt. For that reason I cannot see that any injustice is done or could possibly be done by the provisions of this section. It will only operate where there is no claim of right at all by the defendant. If he makes any sort of claim that has any colour of right the onus is squarely and fairly on the State and, therefore, it is fair to deduce from that that in any case where the matter is of any importance whatever the onus is placed and remains 100 per cent on the prosecution. There is no possibility of any injustice or miscarriage of justice being done by any such provision as we have in this section.
Another thing of which I would remind Senators is that the concept in this section is not something new or isolated. It is a very mild example of the sort of thing that appears initially in dozens of Acts and Senators will agree with me that that is so. In many Acts it is very much more onerous because the onus remains on the  defendant all the time. We have only got to think about such comparatively recent Acts as the Road Traffic Acts of 1961 and 1968 where there is an enormously heavy onus placed on defendants. Without any sort of positive activity on their own part, people can find themselves guilty of quite a series of comparatively serious offences for which they could be disqualified from driving for many years.
Mr. O'Higgins: I protested against those provisions in those Acts.
Mr. O'Malley: The Senator was right to protest but I am afraid they are necessary. One of the outstanding examples of that is the section which enables a member of the Garda Síochána to inquire from the registered owner of a motor car who was driving it at a particular time. There may well have been somebody driving the car who should not have been driving it and the registered owner may be in the position that he does not want to split on his friend, which is a normal human reaction. Although he did nothing wrong, he can find himself prosecuted under that section; he can be fined up to £50 and theoretically at least he could be disqualified from driving for life.
Mr. O'Higgins: He could go to jail.
Mr. O'Malley: I do not know if he could go to jail on it or not but certainly the penalties could be immensely severe. The onus placed on him is very heavy. It is out of all proportion to the very limited, partial situation created in this Bill. Then there is a whole series of situations very much stronger and more onerous than this in the Larceny Act of 1916. I could give the House quite a number of such examples but I do not think it is necessary. I will not delay the House on it but there are a great many of them in regard to proceedings arising out of property. This situation exists also under the Housing Acts and under the Local Government Acts. There is no onus whatever on the local authority to prove ownership of their dwellings and there is very little a defendant can do about it. In fact there is nothing a defendant can do about it even if he  wanted to challenge that, but this has never been regarded as infringing anybody's rights.
All these examples that I have given and the many dozens of others that I know will occur to Senators and which I could give if I was prepared to delay the House unduly, are very much more onerous than this measure. This is not a transfer in any way of the onus of proof. It is a partial transfer in limited circumstances of the burden of onus of introducing evidence and, therefore, of the evidential burden only and not of the burden of proof.
There is a very clear and deep distinction between onus of proof of guilt and evidential burden or onus of introducing evidence. In this section we have a partial, a very limited and temporary transfer or exemption of the State in proving a small component part of their case. That can be very easily thrown back on the State by the defendant if any instance were ever to arise where the defendant wanted to make a claim of that kind. We have only to think back over the past 18 months or two years and see all the examples of activity of this kind. We see very clearly that not alone had those people carrying on this activity got no claim of right or share or interest of any kind but they did not make the faintest or remotest claim to have it. As Senator FitzGerald said, if they had any sort of interest of that kind quite obviously they would do it.
Normally, they seem to occupy the premises or property of organisations which, for one reason or another, they seem to dislike. You have got BOAC, BEA, and my good friend, the Leader of the House, was occupied in his hereditament at Upper Mount Street. Those who came in on top of him there certainly made no claim to be members of the Fianna Fáil organisation or to have any interest therein.
Mr. E. Ryan: I should like to say that from a practical point of view the court would interpret ownership in the sense of formal title because inevitably in the prosecution there would be evidence by the manager or the caretaker of the premises in question, in which he would describe what happened  and inevitably he would be asked whether he was the manager or owner. That would be given in a casual, informal way. What would not be required unless the point was raised was to ask him to produce his title deeds but inevitably the prosecution would need some evidence in an informal way from somebody to show who owned the premises.
Mr. O'Higgins: That is the point I am getting at. Senator Eoin Ryan is correct and if we could deal with the term “owner” as it would be understood in the normal way I do not think that the difficulties I foresee would arise. However, I do not think we can do that and a judge or justice sitting on the Bench cannot do that. He must have regard to the special definition of “owner” which is given in this Bill. That is what will be before him. The Minister is entirely right when the refers to the precedents for this kind of thing, that there are dozens of them. I do not want to make too large a claim but in any of those cases in the past 23 years when I contributed to discussion in Parliament on any of these Bills I objected to this procedure because it is not good procedure and I do not think that because you have a bad precedent to operate on necessarily means that it is a good thing to follow that precedent. I do not go along with that at all.
The Minister made one point which in some ways goes to the root of this section. He mentioned that this only refers to the case of people who make no claim whatever to ownership. In that connection we are dealing here with a criminal offence and there is going to be no obligation whatever on the defendant to make any statement. I would suppose that the ordinary procedure would be followed and people who are arrested and going to be charged with an offence under this Bill would be cautioned by the officer in charge of the case that they are not obliged to make any statement and if they do make any statement that it will be taken down and may be used in evidence.
In most cases I would anticipate that before a person is brought into court  under this Bill he or she will have received a caution from the gardaí that they are not obliged to make a statement and in most cases no statement will be made. The fact that a person does not make a statement with this style of operation is now going to be turned into evidence against him because the Bench are then going to be entitled on the case made by the Minister to comment on the fact that the defendant has not made any claim to any colourable legal title of ownership. Therefore, you have not merely a departure from the norm as regards the prosecution making its case but you have the further step that where the defendant does not make a statement, although he has been cautioned that he is not obliged to make a statement, it may be used, and must be used in this context, as evidence against him. That is creating a very dangerous situation.
Apart from that, let us look at it from a practical point of view. I would go a long way with Senator Ryan as regards the desire of the Bench to interpret “owner” in the ordinary way. I do not think they can. Senator Eoin Ryan is probably right in thinking that in the run of the case it would come out, as he put it, informally, that the defendant was not the owner, that someone else was the owner.
To make a charge under section 2 or section 3 stick it seems that it must be demonstrated to the court that the defendant is not the owner; that it must be demonstrated, if the prosecution is under section 2, paragraph (b), that if the request to leave is claimed to have been made by the owner that the person who made the request was, in fact, the owner, otherwise there is no crime. Having regard to the definition of “owner” in the definition section it must also be demonstrated to the court that the defendant was not acting on behalf of the owner. How can that be demonstrated if no proof of ownership is required? In order to have an offence under this Bill it seems to me that under subsection (3) of section 1 it must also be demonstrated to the court that the defendant did not  enter with the permission of the owner. If he entered with the permission of the owner there is no crime committed.
All of these things must be demonstrated to the court. If ever there is a charge framed under this Bill, whoever frames the charge will have to frame it in such a way that all of these things are alleged, that it is alleged that the defendant forcibly entered, not being an agent of the owner, without the permission of the owner and, in the event of a charge under (b) of section 2, that he was requested to leave by the owner. This is the kind of Bill where proof of ownership, or at least proof of non-ownership by the defendant, will be an essential ingredient in the offence, which is to be created by this Bill. In those circumstances there are enormous practical difficulties to try to relieve the prosecution of what, but for section 5, would be an ordinary and normal burden of proof placed on them.
Mr. E. Ryan: Senator O'Higgins talks of proof of non-ownership. It is quite impossible to prove non-ownership. You could prove ownership, but to prove non-ownership is a virtual impossibility.
Mr. O'Higgins: You prove ownership by one, you prove non-ownership by another.
Mr. E. Ryan: To prove non-ownership is a virtual impossibility. As Senator O'Higgins went on painting a picture of the difficulties that might arise he really demonstrated how unrealistic some of the objections were, because he dealt with the question that the person might have had the permission of the owner. Of course, even if this part of the section was not here and even if the ownership in the strict way had not been proved, it would be still open to the defendant to raise the point that he had the permission of the owner.
Mr. O'Higgins: That is raising it in defence. Suppose the defendant just sings dumb, will not the district justice require the State to show that he had not the permission?
Mr. E. Ryan: Suppose ownership has to be proved in a formal way? The defence of the defendant may be that he had permission. The prosecution certainly would not have to prove that he did not have permission in that sense. There may have been an obscure way in which the defendant claimed that he had permission. Surely it is up to him to prove that he had.
Mr. Alexis FitzGerald: I should just like to make a comment regarding something which Senator Ryan has just said. First of all, in general I think that this whole structure of law is built on a quagmire because of the definition of “owner”. It includes any person having any estate or interest in land and you have all kinds of different persons being put in the position of being able, because of the exemptions already given in sections 2 and 3, to show that the whole question of criminal activity is clearly not there. They are not criminally liable.
Arising out of what Senator Ryan said with regard to the permission of the owner, it seems that an accused person faced with proceedings under sections 2 or 3 has simply to prove that he had permission—I have forgotten precisely the words which Senator Ryan used, I think it was “some kind of obscure permission”— and section 5 will not apply to him at all. In such circumstances the owner, the person who has this estate or interest as defined in section 1, will have to prove his title because of subsection (3) of section 1, which says that “nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner”.
Therefore when an accused person establishes that he has the permission of the owner, he establishes that section 5, which is part of this Bill, does not apply to him. The owner then has to prove his title. It seems that if it is designed to free the owner from the obligation to prove his title, subsection (3) will free any accused person from the burden of section 5 by simple proof that he has permission of the owner of some estate or interest in the land.
Mrs. Robinson: The problem which arises out of section 5 really stems from a misapprehension as to what is necessary to secure a conviction under the Forcible Entry Acts. I quote from a reply of the Minister when the Committee Stage was being debated in the Dáil on Wednesday, 2nd June, at 954 of the Official Report, when he stated:
The only reason we have this provision here is not to make things any more difficult for the defendant but simply and solely to save the time, trouble and expense of getting up title deeds and going through what could be a lengthy and expensive process of proving the ownership when that is not disputed by anybody. In practically all business premises today the property would be mortgaged in some form or other. The title deeds would be either with the bank on deposit for safekeeping or they would be with a building society, insurance company or some other such organisation.
It is clear from this that the Minister is under the impression that in order to secure a conviction under the Forcible Entry Acts it would be necessary to produce title deeds of ownership. I can only refer to the position under the Forcible Entry Acts in England where this is clearly not the case.
Let me quote from the most recent edition of Archbold, the 37th edition, paragraph 3603 relating to the evidence necessary to secure a conviction under the Forcible Entry Acts. Paragraph 3603 relates to seisin and I take the liberty of reading it. It states:
The prosecutor must prove that he was seized in fee of the premises in question or otherwise in lawful possession at the time of the forcible entry. The prosecutor's title is not part of the issue and probably may not for the purpose of the conviction be stated with precision. (Regina v Child and Regina v Hoare). Proof that he was in the actual occupation of the premises or in the reception of the rents and profits is sufficient prima facie evidence of his seisin (Lowes v Telford). This  presumption, however, may be rebutted either by direct evidence of his having a less estate or by evidence of circumstances from which the jury may presume it (Jayne v Price). But it is immaterial whether the estate thus proved is an estate by right or by wrong for even if the defendant has a right of entry still his asserting that right with strong hand or with multitude of people is equally an offence within the statute as if he had no right and this is so even where the landlord forcibly ejects a tenant whose term has expired.
The last paragraph of that quotation would not apply to us discussing this because we are departing from this principle that anybody who forcibly enters premises, whether he has a right to possession of the premises or not, would be guilty of forcible entry.
Nevertheless, I think, the question as to the burden of proof of ownership does not include a long and complicated proof of title deeds, as the Minister seems to suggest. In the light of this, if section 5 was brought in to save the time of the court, I would agree with the Minister. It would be a very long, complicated and cumbersome process if the title deeds to property had to be produced and proved. If it is sufficient to discharge the burden to have a proof of possession or even the evidence that the rents and profits have been paid to the person who alleges that he owned the property then, I think, this is not an undue burden on the prosecution.
It is the normal burden in trying to prove a criminal offence, particularly when we take into account that on a prosecution on indictment the sentence is a very severe one, here, the possibility of three years imprisonment or a fine of £500 or both. The burden ought to be squarely on the prosecution to prove the elements of the offence. This is part of the burden and is not unduly cumbersome, unduly delaying or inappropriate. I would agree with Senator O'Higgins that this would mean that the defendant would have the normal right of the defendant to remain silent when a prosecution for a  criminal offence was laid against him and that his innocence would be presumed until the contrary had been proved.
I should like to hear the Minister's view on this. If he was under the misapprehension that the title deeds would have to be proved, as appears clear from this quotation, then I would be happy to withdraw my opposition to the section as a whole and to introduce an amendment to section 5 or, perhaps, the Minister might consent to having the section withdrawn.
Question put and agreed to.
Acting Chairman (Mr. McDonald): Amendments Nos. 19 and 20 are cognate and can be taken together by agreement.
Mrs. Robinson: I move amendment No. 19:
In paragraph (a), lines 8 and 9, to delete “either by the owner of the land or vehicle to which the offence relates or”.
The purpose this amendment is to remove this phrase from the section so that the section would read:
An offence under section 2 or 3 of this Act is committed by a person (in this subsection referred to as the defendant) who, upon being requested (by a member of the Garda Síochána in uniform) to leave the land or vehicle, or to permit entry to the land or vehicle by a person lawfully entitled to such entry, fails or refuses to do so with all reasonable speed.
The reason why I have brought in this amendment is that I think it is a very wrong extension of the possibility of civil liability for any damage which may ensue if the person who is in occupation refuses to leave at the request of the owner of such land or vehicle because of the extremely wide definition of “owner” which we have consented to in this section and because “owner” includes anybody on behalf of the owner.
It must appear clear to Senators at  this stage that this owner so called under this section could mean somebody who had either a very tenuous link with the property and certainly had no right to possession of it but who could request the person in occupation to leave and if the person refused, could cause considerable damage in putting that person out and the person put out in these circumstances would be responsible for all the civil damage resulting. It is a wrong extension of power to a person with any link with the property to be able to put the other person in this position. The appropriate person to request that the person or persons in occupation should leave would be a member of the Garda Síochána in uniform. That is what we have a regular police force for. We would be condoning the possibility of private thuggery if we left the section as it reads.
The position is made much worse than it looks on the face of it by the fact that we have agreed to such a very wide definition of “owner” and that the word “owner” itself includes anybody on behalf of the owner or with the permission of the owner. Therefore, this creates the possibility for a very wide class of persons requesting the person who is actually in occupation of the building to leave and it includes people who have no right themselves to the possession, no right whatsoever.
Amendment No. 20 states:
In paragraph (b), line 15, to delete “the owner or”.
The subsection would then read:
damage to property is reasonably and unavoidably caused by a member of the Garda Síochána, in the course of lawfully entering or attempting to enter the land or vehicle, or lawfully taking or attempting to take possession of the land or vehicle, or lawfully ejecting or attempting to eject the defendant from the land or vehicle.
I am not satisfied that we should extend the liability for damage caused either by an owner, as so widely defined under the Bill, or by somebody  on behalf of the owner, in other words, by some private army of thugs such as could be employed on behalf of the owner or even agents of the owner or a number of people on behalf of the owner. All of these people would have the right, as the section stands, even if the owner in question has no right to possession himself, to go in on his behalf and, in causing civil damage, place on the particular defendant in the case, the civil liability for any of the damage caused.
The proper balance of law and order in this section is that any ejection which takes place should be by a member of the Garda Síochána “in the course of lawfully entering or attempting to enter” and that if any damage is caused by the garda, then there may be a very proper case for allowing compensation to the owner of the property. It is not to that principle I am objecting. It is the fact that, as in other instances in this Bill, we are licensing private violence and we are even going to compensate for the private violence which we are licensing. We should not be doing that.
Mr. Alexis FitzGerald: There is a very significant distinction between the two amendments. Assuming one had, which one has not, a proper definition of owner as being a person entitled to the immediate use and enjoyment of unoccupied land or land which he is entitled to occupy and assuming that definition excluded the owners of any estate or interest other than such, it seems reasonable that paragraph (a) should give him ground to entitle the court to take account of damage under paragraph (b), if he requests the persons to leave and they fail to leave.
I am wholly in agreement with the second amendment which seems to me could stand on its own even if the request were made by the owner as properly defined. It seems to me to be entirely wrong that the owner is free, for the first time, to make this entry himself, to make the ejectment and having done so, to his cost, by private armies or otherwise creates a situation which entitles the court to establish a penalty which takes account of the damage done by him or his agents or  persons permitted or authorised by him.
I completely agree with what Senator Robinson has said about the undesirability of that, and wholly support this second amendment. Perhaps, I am open to conviction that the first one is desirable too but, certainly, the second one seems to me to be desirable. This is probably the heart of the matter for Senator Robinson as it would be for me. The only damage the court should take into account is damage caused by a member of the Garda Síochána who is doing his duty in entering the land, taking possession of it again and ejecting the tenant who is committing an offence, assuming that the offence is well-grounded by a proper definition of “owner” and “ownership”. To this extent I should like to support amendment No. 20. I would be open to conviction on the necessity for amendment No. 19. If amendment No. 20 is accepted the damage is taken from the section.
Mr. E. Ryan: I would differ from Senator Alexis FitzGerald because, whereas I think amendment No. 19 is arguable and there is a point there, there is none in amendment No. 20. The criticism made is that “owner” has a wide meaning. In amendment No. 20 if the owner was not a person who had the right to immediate possession, then he would not be lawfully entering and the situation would not arise. Under the definition of “owner” a person who merely has an estate would be an owner but he would not be entitled lawfully to break into a property to get out somebody who would be committing a crime. He would not be committing a crime.
Mr. Alexis FitzGerald: He would under section 3.
Mr. O'Higgins: He might not be entitled to civilly but he would be exempt from the sanctions of this Bill.
Mr. E. Ryan: Civilly he would be exempt from the sanctions of this Bill but if he did not have a right to immediate possession he would not be lawfully entering in an attempt to get  rid of somebody who had forcibly entered. Consequently, it is only the person with an immediate right to possession who could lawfully enter to get rid of somebody and do damage in the course of this for which he would be entitled.
Mr. Alexis FitzGerald: He is not criminally liable. He may be committing an offence in law in the sense that he could be civilly liable while he is doing it.
Ruairí Brugha: The legal technicalities are confusing to a layman. If I am the tenant of a flat and I arrive home tonight to find it occupied, new locks put on it and I cannot enter, surely I must be entitled to enter my flat? I may have to do a certain amount of damage to do so.
Mr. Alexis FitzGerald: If your landlord occupied it, he would not be committing a crime?
Mr. E. Ryan: He would not be there lawfully.
Ruarí Brugha: He would be depriving me of my primary rights as a tenant.
Mr. Alexis FitzGerald: You could take proceedings against him.
Mr. O'Malley: The logic of what Senator FitzGerald suggests is that every tort should also be a crime.
Mr. Alexis FitzGerald: On the contrary.
Mr. O'Malley: If an owner for the purpose of this tortiously does something, in other words, if he does something for which he has not got a civil right, Senator FitzGerald's logic then suggests that he should, therefore, be guilty of a crime. If that were so, then everybody who is guilty of negligence would be a criminal.
Professor Kelly: The point is that, putting it in the phrases used by the Minister, the effect of the Minister's legislation will be in respect of something that is equally tortious today or next month—to make it criminal as  well as tortious for one person and merely tortious for the other. That is the point.
Mr. O'Malley: Surely the case is being made here ad nauseam that it is criminal at the moment.
Mr. Alexis FitzGerald: Not in relation to this section, but in relation to other sections.
Professor Kelly: I am not impressed by the Minister's arguments that the old statutes are not enforceable and that there are some doubts about them. He has been contradicted and persuasively contradicted by Senator Robinson in this regard. If these old statutes are, in practice, useless and if the Minister proposes to treat them as useless and if he proposes to get rid of any doubt in the matter by specifically repealing them, then what I say is true. Something which is today tortious for A and tortious for B, tomorrow will be tortious for A but tortious and criminal for B.
Mr. O'Higgins: There is some force in the point that Senator Ryan has made that the question of allowing the award of damages as a remedy can arise only in the case of a person lawfully entering and there might be some measure of protection in that phrase here. I have not thought it out sufficiently, but it certainly has some relevancy.
Mr. O'Malley: When Senator Robinson was moving these amendments she moved them on the basis that, by inadvertence, she took it that the remainder of the section was at it was originally drafted. There was a considerable amendment to this section on Report Stage in the Dáil, where the alternative penalty, as it were, was removed. Senators will notice that the specific giving of a civil claim, in addition to the criminal penalty in line 20, in the last paragraph of the section, is being removed. Deputy Cooney made the point in the Dáil that you could have a situation where the court would have taken the damage into account and a malicious owner could take a separate civil action later. The way I endeavoured to get over that was to see if it would be possible for the court to  award the fine to the owner and then preclude the owner from taking a civil action. However, we found that this was not feasible, and I thought then the only fair thing to do was to leave out the separate civil remedy. Senators should bear that in mind when considering the section because it is somewhat different from what it was originally.
As far as the alternative penalty is concerned, I find these amendments unacceptable. Where property is forcibly entered or occupied by unauthorised persons, it is primarily a matter for the lawful occupier to regain possession of the property, with only such assistance from the Garda Síochána as may be necessary to prevent a breach of the peace, to protect human life, or to obviate any risk of serious injury to any person, or serious irreparable damage to property. It is not the job of the gardaí to enforce the private rights of an individual, unless such action is necessary to prevent crime or to bring to justice those responsible for crime already committed.
A garda may, of course, find it necessary to break into property in order to execute a warrant for the arrest of persons who have committed offences under sections 2 or 3 and who are still unlawfully in occupation; or the circumstances envisaged in section 9 may be applicable, in which case the garda may have to gain entry in order to effect an arrest without warrant. In section 6 we should not start off on the premise that it is the duty of the gardaí to effect repossession of a property and that they alone may break into the property for that purpose. There have been objections by critics of the Bill to the criminal law being used, as they have alleged, to enforce private property rights. That is exactly the effect which Senator Robinson's amendments would have, inasmuch as it would clearly encourage owners to rely exclusively on the gardaí to regain possession of their property occupied by squatters or protest groups. I do not imagine that that is what the Senator intended, or that she would have the blessing of her colleagues in this House for bringing about such a situation, if her amendments were accepted by the House.
Mrs. Robinson: I am aware that section 6 was amended in the Dáil and the Minister is right in that it was thereby improved. However, the arguments that I put forward—I do not think that the Minister was present to hear them—in moving these amendments are still completely valid. The primary problem in relation to this section is the very wide meaning of “owner”. One of the arguments that I made was that paragraph (a) as it now reads says that if the person is requested either by the owner of the land or by a garda in uniform—I wanted to confine that to a member of the Garda Síochána—“owner” in these circumstances can be a very wide class of persons. It can be somebody with a very remote and tenuous link with the property, or it can be somebody on behalf of such person with a very remote link, or with the permission of somebody with a very remote link with the property. That is the key to it; they would order the person to leave; if the person fails to do so, with reasonable speed, any damage done to the property by that owner, as so widely defined, in physically recovering possession of the property would have to be compensated by the defendant. As I understand the law at the moment, it would be a criminal offence for the owner to recover, by force, possession of his property. Once again, I refer to the provision in relation to the seisin of his property. Once again, I refer to the provision in relation to the seisin of property, quoting from Archbold, 37th edition, paragraph 3603, where it is stated:
It is immaterial whether the estate thus proved is an estate by right or by wrong, for even if the defendant has a right of entry still his asserting that right with strong hand or with multitude of people is equally an offence within the statue as if he had no right and this is so even where a landlord forcibly ejects a tenant whose term has expired.
The point I am trying to make is that we are licensing owners as widely defined to forcibly enter property. Under section 6 we are allowing them civil compensation for any damage they may cause in exercising——
Mr. O'Malley: But we are not; that is the point.
Mr. O'Higgins: It can be taken into account.
Mrs. Robinson: The point that I am making is that, as the law stands at the moment, there would not be the possibility of an owner of property, even with the right to possession of it, forcibly retaking that possession: that self-help remedy is not legal at the moment. It is being made legal under this Bill and also, if undue damage is caused, the court, in coming to a decision as to the penalty, may take the damage to property into account as if that damage had been caused by the defendant, may have regard as to whether or not the defendant has compensated the owner in respect of the damage; in other words, unless the defendant has compensated the owner in respect of the damage, he may be liable to a more severe penalty.
The underlying principle is that not only are we exempting certain categories of people, the owner as widely defined, and anybody on behalf of the owner, with the consent of the owner, from criminal liability for forcible entry, but we are also saying that if such person requests the defendant to leave, and then forcibly enters to retake the property, and damage is caused to the property and the defendant may be liable for a criminal penalty. The amendment that I am putting forward is to try to confine this physical violence to members of the Garda Síochána who request the persons in occupation to leave and, if they do not do so, eject them and regain possession of the property and any damage caused, under the terms with which I agree, if not compensated for, may be taken into account by the court in the penalty. Let us at least in this section, which relates to the retaking of possession of property, confine it to the forces of law and order in the State. Let us confine this forcible entry, as it is confined in England and in most civilised jurisdictions, to the forces of law and order. Let us not license private violence and private self-help remedies of this sort.
Mr. O'Malley: Senator Robinson made quite a number of statements  with which I could take issue, but we might, if I did so, raise a number of hares. I cannot follow her statement that, in England, it is only the forces of law and order, as she puts it, that are entitled to——
Mrs. Robinson: Forcibly enter.
Mr. O'Malley: ——take possession of property. Surely it is fundamental in their common law, as it is in ours, that an owner can take possession of his property.
Mrs. Robinson: Not forcibly.
Mr. O'Malley: Here, at the moment, if somebody is unlawfully trespassing on your property, as I understand the law, you are entitled to use such force as is reasonable to eject him. You may not be able to recover, either directly or indirectly, the damage you do in the course of ejecting him but, provided you are prepared to risk it, you are entitled to eject him and I want to retain that entitlement and not give it over to the gardaí.
Professor Kelly: I think that permission to eject a trespasser exists only in favour of an occupier. Trespass, subject to correction, is a tort committed primarily in its occupation. I do not think a superior landlord would have any right to eject him.
Mr. O'Malley: No, but an occupier, or a person entitled to immediate occupation, would, in my submission to the House, be the only person who would, in fact, carry out such an ejectment and certainly would be the only person who would do it under this section. I would invite the attention of the House to line 16 in paragraph (b) where it says “in the course of lawfully entering or attempting to enter the land”. Quite clearly the person who would, under the section, lawfully enter or attempt to enter could only be the occupier or a person entitled to immediate occupation in substitution for those who were actually present. For that reason, Senator Robinson's point, that people who are not legitimately entitled to go in would be in some way licensed to go in by this Bill,  is quite wrong. That word “lawfully” is there. It makes clear what the paragraph means; only a person lawfully entitled under the section to enter could enter. The appearance of the word “lawfully” in line 16 is as a result of an amendment made in the Dáil. Although I made the case that it was only a person who was lawfully entitled to enter could do so under this section, it was argued by, I think, Deputy Fitzpatrick, that he did not agree that that was clearly so and that it would be better if it were spelt out. I subsequently put down an amendment to place the matter beyond doubt.
Mrs. Robinson: I feel somewhat like a voice crying in the wilderness. As I see it, and I have quoted from Archbold and from English cases, it is clear that in England, and this cannot be disputed, it is an offence for the owner of property, even with the right to possession of the property, forcibly to enter that property. As I construe the word “lawfully” in section 6, the meaning of the word has to be read in conjunction with the definition of “owner” under section 1, the definition section. The exemptions which we have granted either to an owner, or a person with the permission of the owner or on behalf of the owner under sections 2 and 3 from the offences of forcibly entering or forcibly occupying are new; it will no longer be an offence. They will be doing it lawfully. It is clear that what is meant in section 6 is forcible entry, since the Minister envisages damage to the property in forcible entering it. It will be lawful and, for the first time in our law in 600 years, we are permitting forcible entry.
Mr. O'Malley: I beg to differ with the Senator. I should like to refer to the position in England. I quote from the 12th Edition of Russell on Crime. page 283, where he says in describing the present English law:
A man who forcibly enters into a tenement of which he is the sole and lawful possessor, for example, who breaks open the doors of his own dwelling house or of a castle which is his own inheritance, but forcibly  detained from him by one who claims to bear custody of it, is not guilty of a forcible entry or detainer within the statutes.
The authorities are a very lengthy series of cases.
Mrs. Robinson: I can only reply by quoting once again from the provision in Archbold where it is clear that it is immaterial that the estate as proved is an estate by right or by wrong but——
Mr. O'Malley: May I suggest that we let Russell and Archbold fight it out?
Mrs. Robinson: ——even if the defendant has a right of entry, still his asserting that right with strong hand or with multitude of people is equally an offence within the statute as if he had no right. This is so even where a landlord forcibly ejects a tenant whose term has expired and this would be the type of situation. I quoted from Regina v. Mountfort in the court of appeal where the statues were referred to and where it is clear that this applied even to the owner in forcibly entering the building.
The recent statement in the court of appeal must be an authoritative statement of the English law and it is written into the record of the House. My quarrel with section 6 is based on the fact that we have given this new freedom from criminal liability to property owners. We have defined “owner” in a very wide sense. It need not be anybody with an immediate right to possession who requests the occupier to leave. That is the danger I see in this section. It could be somebody with a very tenuous link to the property who would request the person to leave and, if that person did not leave, this person with a tenuous link to the property would be lawfully entitled, under our definition of “owner” and under the exemptions granted in this Bill, to enter the property and eject the defendant. The proper position would be that it should be the Garda Síochána who would forcibly enter and who would cause damage to a person's property, because  that is a violent action and should not be condoned. But if the person were willing to avail of the civil remedies, then he could regain possession of his property in that way. That is why I have put down a motion that the civil remedies for regaining possession of property be improved in the way in which they have been improved by the new rule of court in England, Rule 113. If we give a swift and good civil remedy to a person to regain possession of his property, then the forcible retaking of property should be confined to the Garda Síochána and if they are forced, in forcibly retaking the property, to damage it in some way, then, if the defendant has not compensated the owner for this, it would, I think, be reasonable for the court to take that into account.
Tomás Ó Maoláin: Does the Senator suggest that the Members of the Seanad should decide between the two authorities?
Mr. O'Malley: I will solve the problem raised by Senator Ó Maoláin now. In further support of my assertion that Senator Robinson is not correct in her statement as to the existing law in England or here, I would refer her to the 3rd Edition of Halsbury, volume 10, page 592, paragraph 1103.
Mrs. Robinson: May I ask the Minister the date of that?
Mr. O'Malley: It is the 3rd edition.
Mrs. Robinson: What date?
Mr. O'Malley: I do not know. I carry my learning round in little pieces. It is the current edition, I am told. I quote:
A mere trespasser cannot by the very act of trespass immediately and without acquiescence by the rightful possessor give himself possession in any legal sense as against the person whom he ejects and the latter is entitled to use force in turning him out provided he does him no personal injury.
Mrs. Robinson: Again, I would agree with Senator Kelly, that is a  form of trespass; that is not the forcible occupation of a building and the retaking of it. It is a different matter.
An Cathaoirleach: Is the amendment being pressed?
Mrs. Robinson: Yes, the amendment is being pressed.
Question—“That the words proposed to be deleted stand”—put and agreed to.
Amendment declared lost.
Mrs. Robinson: I move amendment No. 20:
In paragraph (b), line 15, to delete “the owner or”.
Amendment put and declared lost.
Question proposed: “That section 6 stand part of the Bill.”
Mrs. Robinson: The Minister referred earlier to the provision for compensation in England for property which had been damaged. Although I do not know whether this is a fair question, I would be interested to hear whether he can enlighten us on the position in England in relation to compensation for property in such circumstances.
Mr. O'Malley: I think we are getting more academic than we need. I do not think it would be a matter for me to comment on what the position is in England.
Mrs. Robinson: I was just wondering would the Minister be in a position to show us any similar provisions in relation to compensation in these circumstances.
Mr. O'Malley: I am not aware of statutory provisions, but that does not invalidate our adding our own. I do not think we must copy England in everything.
Question put and agreed to.
An Cathaoirleach: Amendment No. 21 is consequential to amendment No. 27 so amendments Nos. 21 and 27 can be discussed together.
Mrs. Robinson: I move amendment No. 21:
In line 25, before “this” to insert “section 2 or 3 of”.
Amendments Nos. 21 and 27 relate to penalties. The purpose of these two amendments is to try to incorporate a distinction between the substantive offences of forcible occupation under the Bill and the offence under section 4 of “encouraging or advocating” these offences. The amendments, taken together, would insert into line 25:
Every person who commits an offence under section 2 or 3 of this Act shall be liable—
(a) on summary conviction in the case of a first offence under this Act, to a fine not exceeding £50 or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment,
(b) on summary conviction in the case of a second or subsequent offence under this Act, to a fine not exceeding £100 or to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment,
(c) on conviction on indictment, to a fine not exceeding £500 or to imprisonment for a term not exceeding three years or to both such fine and such imprisonment.
Amendment No. 27 would add a new paragraph (d)
a person convicted of an offence under section 4 shall be liable to a fine not exceeding £50 or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.
The reason for distinguishing between the substantive offences and the offence of “encouraging or advocating” must be clear at this stage. It stems from an underlying dislike of such a vague offence which relates purely to the making of a statement and it also imports the possibility of a form of precarious criminal liability; if a statement is made by another person, and if the defendant can be linked in some group—as I have emphasised before, the word “group” is not defined— with the maker of the statement that  person could be guilty under section 4 unless he can give an adequate explanation to the court and satisfy the court that it was made without his consent or approval. Nobody under that form of a criminal offence, so widely defined and relating to a statement made in such circumstances, should be at risk of the full penalties under section 7, that is, the possibility, at worst, of a conviction on indictment and a fine of £500 or three years imprisonment or both. This is going beyond fairness to people to put them at risk of such a penalty. There is legitimate ground for making a distinction between the offences of actual forcible entry or forcible occupation and the offence of “encouraging or advocating”. The Minister may well say that it is the logic behind this Bill, that it is part of his intention that advocating and encouraging is, perhaps, more serious than the forcible entry or forcible occupation. The reply I would make to that is that I should like to see the maximum penalty for “encouraging or advocating” written in as a maximum, as stated in amendment No. 27, of a fine of £50 or imprisonment for a term not exceeding six months. When the form of guilt and the form of mens rea required can be as nebulous as is set out in section 4, this is the only way in which there can be the control necessary so that the person does not incur any greater risk.
Mr. O'Higgins: Could I say very briefly I would have very mixed feelings about this pair of amendments? I should think that, if section 4 had been framed in such a way as to make it clear that the offence there was clearly active incitement, then I would think that it would probably be more appropriate to have a heavier penalty for a person who actively incites others to commit a crime, even a new crime which is being created under this Bill, than the penalty imposed on a person who, by reason of being incited to do so, commits a crime. I would have very much greater sympathy with the person who has been egged on, provoked and incited by another person, whether through the columns of a newspaper, speaking on a public platform  on radio, on television or anywhere else. I would have more sympathy with the person who is egged on to commit an offence than I would with the person who indulged in the provocation or incitement. For that reason, I would not be very keen on these amendments. What I say has, however, to be modified to some extent by dissatisfaction with the framing of section 4 of the Bill.
Mr. O'Malley: I am in agreement with what Senator O'Higgins says. That would be my approach too. If we were to differentiate as between sections 2 and 3 offences, on the one hand, and inciting, encouraging or advocating these offences on the other, I would regard the latter as the more serious. If we were to have separate penalties as between the various sections, I would agree with Senator O'Higgins that section 4 would call for heavier penalties rather than lighter penalties, as is suggested by Senator Robinson. However, the easiest thing to do is to have the same penalty for all of them and not to make the section 4 penalties heavier. Certainly, there is no logic in having lighter penalties for what Senator O'Higgins has rightly described as a more serious offence under section 4.
An Cathaoirleach: It is now 1 o'clock. Is it proposed to adjourn for lunch?
Mr. O'Higgins: Could we finish these amendments?
Tomás Ó Maoláin: Yes.
Mrs. Robinson: Obviously my reason for trying to distinguish between an offence under section 4 and offences under section 2 or 3 is that most of us are clearer about the extent of offences under section 2 or 3, but I am not at all clear about the extent of section 4. We are putting people at risk. It is a very worrving risk for people when the possibility of their being guilty as a member of a group is not at all clear. I should like to stress the fact that it is a very serious penalty under the law, a possibility of a prosecution on indictment and imprisonment for three years. The fact that it is a serious penalty can be  demonstrated only by comparison and here I should like to compare this with Part II, section 6 of the Offences Against the State Act, 1939. It is largely relying on the reasoning behind this that I propose the amendment. Section 6 has two subsections. Subsection (1) provides:
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 legistature 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, or by forming, maintaining, or being a member of an armed force or purported police force not so authorised, or by any other action or conduct whatsoever, shall be guilty of a felony and shall be 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.
Subsection (2) provides:
Every person who shall attempt to do any thing the doing of which is a felony under the foregoing subsection of this section or who aids or abets or conspires with another person to do or attempt to do any such thing or advocates or encourages the doing of any such thing shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.
It is comparison to this—to advocate or encourage the overthrow of the Government, the setting up of a separate Government which, under the Offences Against the State Act, incurs a maximum penalty of two years imprisonment, and here we have the possibility of a person who advocates or encourages, or is a member of a group on whose behalf the advocating or encouraging is done, running the risk of a maximum penalty of three years. For that reason I want to make this distinction by showing that we are dealing with a very broad and a very nebulous offence and that the risk a  person should be put to because of that should not be as great.
Amendment put and declared lost.
Business suspended at 1.5 p.m. and resumed at 2.30 p.m.
Professor Kelly: I move amendment No. 22:
In paragraph (a), lines 27 and 28, to delete “in the case of a first offence under this Act,”.
I suggest, if the House agrees, that amendments No. 22 and 24 be taken together, because No. 24 is consequential on No. 22.
An Cathaoirleach: That is right.
Professor Kelly: The object of amendment No. 22 is to place the Oireachtas beyond the danger of enacting something unconstitutional. The first stage of my argument is the citation of Article 38, section 2 of the Constitution which says:
Minor offences may be tried by courts of summary jurisdiction.
That is taken to mean that minor offences, and only minor offences, may be tried by courts of summary jurisdiction. The court of summary jurisdiction in this country is the district court. The phrase “summary jurisdiction” imports in other contexts other phrases such as “summary conviction”, a phrase used in paragraphs (a) and (b) of section 7 of this Bill.
There have been occasions in the past —two or three cases—in which the Supreme Court has been asked to say that a particular offence, because of its nature and because of the penalty which was attached to it, was not and could not be described as a minor offence and accordingly was not an offence which could properly be the subject of prosecution in the district court. I think that the case of Conroy versus the Attorney General which is in the 1965 Irish Reports probably puts beyond doubt, for the moment at any rate, the constitutionality of paragraph (a). In other words, I do not think an objection could be taken to paragraph (a) on the basis that a penalty of £50 or six months imprisonment takes the offence out of the category of a minor offence and therefore something  not suitable for summary trial and summary conviction.
At the other end of the scale the Bill quite rightly provides that where the offence is to be penalised by something not exceeding £500 or imprisonment for a term not exceeding three years, the prosecution should be on indictment. Paragraph (b) is one which I feel—I am subject to correction— might give rise to legitimate doubt, because I think the Supreme Court, or indeed the High Court, has not expressly declared its view on the position in regard to offences potentially carrying a penalty of 12 months imprisonment plus £100 fine. At the one end of the scale there is Contoy's case in which the offence of drunken driving carrying a penalty of up to six months imprisonment, plus a year's disqualification was held to be a minor offence on considerations among which the severity of punishment was one. At the other end of the scale, there is the State at the prosecution of Sheerin against the Governor of St. Patrick's Institution in which it was held that a sentence of three years detention for a juvenile was a severe and heavy sentence but something which took the offence itself outside the category of a minor offence and consequently outside the legitimate purlieu of the district court.
There has been, so far as I know, no firm judicial authority on the standing of an offence to which the penalties provided in paragraph (b) here are attached. The nearest case that I know of—I am subject to correction—dealing with a case like this is the case of Melling against Ó Mathúna and the Attorney General which was reported in the 1962 Irish Reports at page 1. In that case, while the offence of which Melling was charged was held by a majority to be a minor offence, two of the judges dissented and both judges in dissent took the view that an offence carrying up to 12 months imprisonment was not a minor offence and consequently could not be tried in a summary manner. Even of the judges who formed the majority in that case, one of them, the late Mr. Justice Lavery, said at page 14 of the Report  that if the penalty may be 12 months imprisonment no one would regard it as other than a serious penalty.
One of the dissenting judges is now the Chief Justice, the other dissenting judge, it is true, has retired. I think I would not be saying anything disrespectful to the Supreme Court— indeed it is something complimentary to it—in saying that it has become more liberal over the years and not less liberal. It has become more acute in detecting potential infractions of the citizen's liberty than it previously was. to the spirit as well as to the letter of the Constitution. Unless, as is possible, I have overlooked some judicial decision which puts my amendment out of court, it seems to me to be a risky proceeding for this House or the other House to create an offence, a second or subsequent offence, under this Bill, an offence triable summarily, in other words, without a jury—that is the nub of the point—to which a penalty as severe as 12 months imprisonment can be attached.
I presume that I know the Minister's disposition in regard to amendments introduced in the Seanad on 20th August. At the same time I feel that I have at least to put on record my misgivings as to the possibilities of what we are doing here. It is possible that I have overlooked some judicial authority which will contradict me, but if I have not, and if I am right in explaining what I take to be the law, then if we pass paragraph (b) we are creating an opportunity for somebody convicted under that paragraph to have this part of the Bill declared unconstitutional. It would have the effect of exposing him to the imposition of a serious penalty, not after trial by a jury but simply after summary trial by the district court.
Mr. O'Malley: I could not agree that a penalty of £100 fine or 12 months imprisonment, or both, is excessive for the district court as far as our law is concerned at the present time. I cannot say what the Supreme Court would decide next week or next year. Senator Kelly might well be right in saying there is a danger that they might decide that such a penalty is  too much for the district court but I can only go on what the law is and has been for many years. If this paragraph of this subsection were to be found unconstitutional so would practically every Act under which the district court has been sentencing people since its establishment 50 years ago.
Sentences of 12 months imprisonment are quite common in the district court. One of the more recent basic statutes setting out the general jurisdiction of the district court in regard to sentences is section 4 of the Criminal Justice Act, 1951. Subsection (1) of section 4 reads:
On conviction by the district court for a scheduled offence ...
that is an offence scheduled in the Act:
... or for an indictable offence scheduled under section 3 of the Act the accused shall be liable to a fine not exceeding £100 or 12 months imprisonment or both.
which is precisely what we have in this section. That is a kind of omnibus section that applies to a very wide variety of indictable offences. This paragraph does not exceed that. If paragraph (b) is to be wrong—I do not accept that it is or that the Supreme Court could reasonably so find it—so is the infinitely more important section 4 of the Criminal Justice Act, 1951, which covers an enormous variety of offences, and so are a number of other similar provisions in various statutes beginning from 1924. Many offences created by statute in the period from 1922 onwards have a penalty of 12 months or £100 laid down for summary conviction.
Another point that may arise out of Senator Kelly's amendment is that the penalty for second or subsequent offences is substantially higher than the penalty for a first offence. I think that is fair enough because these types of activities are for the most part carried on by a small group. If there is to be constant repetition by a small number of the same people, I feel that they should be liable to heavier penalties on second or subsequent convictions. As Senators know, it is a common  occurrence in criminal statutes that a higher penalty is provided for second or subsequent offences. It runs right through the Road Traffic Acts and many other similar Acts.
Professor Kelly: The Minister is perfectly right in saying that there are many statutes which provide for the imposition of a penalty of 12 months imprisonment after a summary trial in the district court but the temper of the Supreme Court these days is such that that would not deter it, and rightly would not deter it, from deciding on principle whether an offence carrying a potential punishment of 12 months imprisonment was not an offence so serious as to be something entitling the defendant to trial by jury. That is the nub of the point here. We all share the Minister's view that people who repeatedly commit the same offence ought to be treated with progressive severity, that is, if one overlooks the philosophical difficulties inherent in the whole idea of punishment. If one is satisfied about that in the first place, then I do not dissent from the Minister's view.
The point is that once the offence becomes one not considered, in the eye of the Constitution, a minor offence any longer—it might very well be that someone who was so malignant as to commit this offence for the fourth or fifth time would be doing something which in the people's eye was very wicked—the Constitution provides such a person must be tried by jury and is no longer properly tried before a district justice.
Mr. O'Malley: But he probably would be, anyway. If he repeated the offence to that extent, I am sure the Attorney General would indict him.
Professor Kelly: That would be my own suggestion. My point boils down to this, and I am sure the Minister can see this point too, if we are dealing with a hardened character, the right thing to do is to indict him. I do not think the Act gains by having this clause in it. In my opinion, for what it is worth, this paragraph imports a potential infirmity into the Bill. I do not think much is gained by having  paragraph (b). If the State feels it convenient to prosecute offenders in the district court under this Bill I do not think it will be a substantial deterrent to hold over an offender a threat each time of six months imprisonment. I do not think anything is gained, having regard to and balancing it against this potential unconstitutionality, by having a special category of offence summarily triable without a jury in which this 12 months sentence is imposed.
As the Minister knows, quite well, even in the case where six month penalties are provided by various statutes for various offences, it is unusual for justices, even in the case of a repeated offence, to impose the maximum penalty. I have not got statistics on that and, perhaps, the Minister has not got such statistics either, but a justice would be regarded as being harsh, except in a very bad case, if he imposed a maximum sentence at any time.
It seems very unlikely that somebody prosecuted under paragraph (a) on the first occasion, unless his offence was accompanied by some gross act of personal violence or some gross disregard of a very contemptuous kind of other people's rights, would get the full six months. Therefore, I do not think a lot is added to the Bill by having paragraph (b) in it. It may very well be constitutionally infirm. If the Minister puts himself in the position of a solicitor defending a person under this Act, I feel perfectly sure that he would, and quite rightly, instantly challenge the constitutionality of paragraph (b) if his client had been convicted and sentenced to 12 months imprisonment under it.
An Cathaoirleach: Is the amendment withdrawn?
Professor Kelly: I do not know what to say. I believe that what I have said warrants the Minister reconsidering or withdrawing the paragraph. I suppose I had better press the amendment.
Amendment put and declared lost.
An Cathaoirleach: Amendments  Nos. 23, 25 and 26 are related and may be taken together by agreement.
Miss Owens: I move amendment No. 23:
In paragraph (a), line 28, to delete “£50” and substitute “£5” and to delete all words from and including “or” in line 28 down to and including “imprisonment” in line 30.
The reasons why we put down these amendments are fairly obvious. It is an attempt to reduce the penalties in the Bill. Some of the arguments in favour of doing this were expressed here this morning, particularly by Senator Robinson when she moved her two amendments on the section. She tried to solve one of the problems which we have all observed in dealing with the Bill. There is no distinction in regard to the type of penalty that would be applied for a particular type of forcible entry or forcible occupation. This morning the Minister said that he had thought a bit about the drafting but that the easiest way to deal with them was to have all the penalty clauses the same. I do not think the easiest way is necessarily the best way. It is and could be very unfair to certain people.
I should like to draw attention to the very first words in section 7 which states “every person”. This could be very important, not in the type of cases which the Minister is stressing but in the other type of case to which we have referred, that is, the case of the family who squat. The penalties are the same for them as they are for the subversive organisations who have encouraged them to squat. This to me means that if a husband and wife and a few small children forcibly enter and forcibly occupy because they are homeless and are in breach of the law because of that, both the husband and wife then would be charged under section 2 and 3 of the Bill and the fine could be one of £100—£50 for the husband and £50 for the wife.
I am not a lawyer and I do not know whether I am correct on this but to me this is what “every person” means. It is not “a person”, it is “every person”. If this should happen and if the courts imposed the fine of £50— and I agree it is quite possible they would take a much more lenient view and of course they can apply a smaller fine—the very nature of this person's means will mean that it is unlikely he would have such a sum of money. He would then have to face the imprisonment term, in which case, if there was a family involved, the children would become the responsibility of the State and would have to be supported through the health boards or some arrangement would have to be made for them.
If on release, he is still a homeless man and is forced into a similar type of situation, then we find him facing a fine not exceeding £100. and so on. This is very objectionable. I feel the Minister does not intend this, but I can see no way out of it and that is why I was so impressed by Senator Robinson's effort at least to distinguish between the type of offences.
There are a lot of problems in regard to the penalty section. Senator O'Higgins expressed it very well this morning. I would agree that there should be a penalty for the type of offences. If you break the law you pay some penalty, be it a fine or a term of imprisonment. If section 4 were a section about which we were happy and if it were implemented properly; if the definition of “ownership” was the one we wanted, if we knew under section 4 what “acting on behalf of” consisted of and its extent, then it might have been possible to sort out the penalty section and to amend it in a way which would be equitable so that the ordinary squatter—and there is a great deal of sympathy for the ordinary squatter although I do not think we can condone squatting as such, and I agree with Senator Brugha that I would not fancy anybody breaking into my own home—would not be placed in the position I spoke of earlier. It is not a type of action that we would wish to condone or encourage or incite or advocate.
While I am speaking about this I would like to put an apology on the record. Last night while Senator Gallanagh was speaking he, through a slip of the tongue, a human error, used the word “invite” instead of incite  and I interrupted him. I have great respect for the Senator and I did not in any way mean to ridicule or make light of his contribution to this debate. However, it is a serious one and I am not saying by any manner of means that the amendments we have down are the ideal way of dealing with this problem.
The problem is very real to me and I do not believe that a legislator would want to impose a similar type of fine on the homeless person who squats and the type of subversive organisation which is advocating and encouraging. At the moment it would be at the discretion of the court not to impose a maximum fine in one case and to impose a maximum fine in another, if it so desired. It is for these reasons I am moving amendment No. 23.
Mr. O'Higgins: I have sympathy with the spirit of these amendments. Personally I would find it very difficult to justify supporting amendments which would so radically reduce penalties in particular instances. I have sympathy with the spirit in which Senator Owens dealt with these cases. There is a very large number of cases where I, and probably most of us, would feel shocked if a penalty of £50 or £100 or three years imprisonment, as might happen under this Bill, were imposed. On the other hand, there might be cases of deliberate and malicious forcible entry and retention, forcible occupation, where we would probably feel that it would be something of a scandal if a penalty of only £5 or £10 were imposed.
The solution probably is that Senators should record the kind of sentiments that were expressed by Senator Owens and that I am expressing now and should rely on the fact that under the penalty section here discretion is being allowed to the courts as to what the penalty will be. There is no mandatory penalty, there is no minimum penalty, there is a maximum penalty and within the ambit of that maximum penalty the court is to be entitled to exercise its discretion, having regard to the merits of each particular case.
I would expect in the kind of case I outlined first the court would impose  a reasonably stiff penalty within the limit which is allowed here. That is the case of a bad malicious forcible entry. On the other hand, if there was what might be regarded as the social kind of case of sheltering the homeless, parents seeking shelter for their children, and who in doing that find themselves contravening this Act, I certainly would expect that the court dealing with that case would have regard to those circumstances, would take the case on its merits and would impose very considerably less than the maximum penalty provided for here. I see Senator Owens difficulty in this and I appreciate her approach to it. Like Senator Owens I would feel that these amendments probably would not have been put down at all if there was a different framework in sections 1 and 4 of the Bill, that is in the definition section and the section which for want of a better expression at the moment I shall refer to as the “guilty by association” section. If they had been dealt with in a different way from the start we should not have concerned ourselves unduly with this question of penalties. However, I share the views expressed by Senator Kelly as regards the potential unconstitutionality of this section. With that reservation I agree with leaving the penalties as they are in the Bill, having recorded my views which possibly at some stage may come to the benefit of the district justices.
Ruairí Brugha: I am sure that all Members of the House would agree with the sentiments expressed by Senator Owens in regard to an unfortunate husband and wife and their family in certain circumstances. Perhaps the Minister would guide me here: I think that this comes in under section 2 (b) where they have to refuse to leave.
Miss Owens: I agree but the penalty cannot be imposed.
Mr. O'Malley: A penalty cannot be imposed unless they commit an offence.
Ruairí Brugha: The circumstances would be a little unusual. One could say: “There is an owner of a property which is vacant. Will you leave tomorrow morning?” and an arrangement is arrived at. On the other hand we have a different situation and it is the one that the Bill is aimed at, people who are placed in property and who will say: “We are not going to leave.” This is the difference that I see. The other one comes under section 2 (b).
Miss Owens: In reply to Senator Brugha, I said that I was accepting the situation that an offence has been committed under section 2 and under section 3; there was forcible entry and forcible occupation. I was accepting that these were the circumstances. However, even in those circumstances there is a difference. I accept that under section 3 the occupation has been continued and the man and his wife have refused to leave. The penalty should not be the same for this type of person as for the type of person who has been inciting other groups to go into occupation.
Mr. O'Malley: In my opinion a maximum penalty of £5 for a first offence and of £10 on a second or subsequent offence on summary conviction would not alone be inadequate but would be absurd. Moreover, where offences are committed which are of a very serious nature, perhaps resulting in serious damage to property or serious inconvenience to the public or both, it is essential that such offences should be capable of being tried on indictment.
Apart from anything else, the seriousness of the offences could well be such as to preclude them from being dealt with summarily by the district court. Senator Owens should realise that the possibility of maximum penalties being imposed in the sort of case that she has referred to is literally nil. In a genuine sympathetic case of that type, as opposed to a provocative political attempt which is really what we are interested in, if an offence was committed at all, a district justice would quite possibly not impose any  penalty. If he did so it would be a matter of shillings. It is unrealistic to talk about a husband and wife being fined £50 each. As far as a husband and wife committing an offence as part of the same incident is concerned, presumably — as far as indictable offences are concerned — the wife acted under the orders of direction of the husband.
Miss Owens: Wait until Women's Lib. hear that. I appreciate some of the points made by the Minister. The House appreciates the problems I had and why I tabled the amendment. I accept, and I am glad that it is on the record of the House, and that the Minister thinks that in the type of case mentioned by me the penalty would be minimal. It is important that we are aware of that because the problem was that there is no distinction between the type of people who commit the offence and that they were all being dealt with in the same manner.
Amendments Nos. 24 to 27, inclusive, not moved.
Section 7 agreed to.
Section 8 agreed to.
Mr. J. Fitzgerald: I move amendment No. 28:
In line 1, before “may” to insert “in uniform”.
It will be noted that in sections 2 and 6 it is stated that a member of the Garda Síochána in uniform may arrest a person without a warrant. I wonder if there is any particular reason why he should be wearing a uniform?
Mr. O'Malley: A guard's existing powers of arrest without warrant arise from the common law and from particular statutes. In no case is there a requirement that the guard must be in uniform at the time of making the arrest. Section 9 is designed to deal with an emergency situation that may arise involving serious damage to property, or serious interference with the lawful rights of the owner, or serious  inconvenience to the public. The only way of preventing or minimising the damage, interference or inconvenience is for the gardaí to arrest those concerned forthwith. A requirement that the garda should be in uniform when making an arrest under the section could well delay effective action being taken, thus unnecessarily allowing the damage, interference or inconvenience to occur and unnecessarily prolonging its duration. I would submit to the House, therefore, that this amendment is not really necessary. I assure Senator Fitzgerald that there is nothing sinister whatever in the absence of the words “in uniform”, as these words do not appear in any of the statutes relating to powers of arrest by gardaí and naturally they do not appear in the common law.
Miss Owens: Yesterday we were talking about the definition of owner and whether it should be qualified. I cannot quote verbatim what the Minister said but it was to the effect that it was basically wrong to qualify words in one section of an Act when they were not qualified in another. Sections 2 and 6 mention a garda “in uniform”.
Mr. O'Malley: But in section 2 and in section 6 they are doing different things. They are not acting in emergency situations; they are acting in accordance with formal requests made to them.
Miss Owens: They would not be acting on a formal request made to them in section 9 (b). In the subsections are “ands” not “ors”. It is (a), (b), (c).
Mr. O'Malley: The Senator is right. There would have been a request by the owner.
Miss Owens: If we had been as consistent as we wanted the Minister to be, we could put in “in uniform” in subsection (b) as well. However, putting it in on the opening phrase would have covered the subsection. I agree that what is done under section 2 and under section 6 is very different. I consider arrest without warrant a serious thing. The words “in uniform” being omitted from section 9 has made many people think it was quite deliberate and that there was a specific reason for it. The reason might be to give the operation of the Special Branch, Senator McGlinchey's friends, more scope. The Minister assures me there is no foundation for this. I am aware that he had this power at common law beforehand but I believe it was left out there, deliberately, when it appeared in the other two sections. The Minister was very careful to point out in the other House that it was not in either. All four sections of this had to be there. It is important for people who might witness an arrest to see that the arrest is made by the Garda Síochána. This is one reason for having a uniformed police force. It is important that the official police force should be seen to do these things.
Mr. O'Malley: We may take it that in practice an arrest, if and when it became necessary under this section, would be invariably carried out by uniformed personnel.
Mr. O'Higgins: I should like to take this further if possible and ensure that a direction be given that as far as practicable that it should be done by guards in uniform.
Mr. O'Malley: I would propose to ask the Commissioner, when the Bill is passed, to give a direction that as far as may be practical arrests would be made under the section by members of the force in uniform.
Mr. J. Fitzgerald: I accept the Minister's undertaking to do that. The putting down of the amendment has achieved something. We have got it on record from the Minister that he would request the Commissioner to ensure that a garda in uniform effect the arrest. We all have respect for the gardaí in uniform but the people cannot be expected to have respect for somebody who is not in uniform. If somebody stops me on the street who is not in uniform I will take no notice, but if he is in uniform I will stop, and that is the reaction of most people. One guard in uniform is worth 25 stewards. It is essential that where we  have happenings of this kind that the guard in uniform make the arrest and not leave it open to somebody to misconstrue that it is some thug rather than a member of the Garda Síochána, not in uniform, who is making the arrest.
Mícheál Cranitch: I wish to make one point. I do not think anybody has any doubt so far as arresting without a warrant is concerned under section 9. Naturally, a garda will be in uniform and the Minister has undertaken to ask the Commissioner to ensure that the guard would be in uniform. I would ask the Minister not to make it too binding on the guards to be in uniform because is there not the possibility under the circumstances envisaged here that there could be a display of violence and the garda who would appear in uniform might find himself without his hat and his coat? We will not go any further.
Mr. O'Higgins: He would only be improperly dressed.
Mícheál Cranitch: I should hate to see the proceedings held up while somebody was rushed to the nearest barracks for a new uniform.
Miss Owens: After the Minister's statement and his undertaking to ask the Commissioner to issue a direction I withdraw the amendment.
Amendment, by leave, withdrawn.
Miss Owens: I move amendment No. 29.
To add to the section the following new paragraph:
“(e) the person suspected of committing the offence has refused or failed within a reasonable time to comply with a request made by the member to vacate the land or vehicle.”
This amendment is to add an additional subsection and, again, it is a sort of an additional guarantee to the person who is about to be arrested. It is intended to build in a type of warning where the garda, if he is going to make an arrest, should at least warn  the person, having got a refusal, or if a person has failed to comply with a time limit for the vacation of occupied premises. That is all that is intended here. It is an added safeguard so that there can be no doubt in a person's mind that he is breaking the law.
Mr. O'Malley: I think the addition of this paragraph is not necessary. While I accept Senator Owens' anxiety to limit arrest without warrant to the greatest possible extent and, therefore, have the greatest number of safeguards, there are already adequate safeguards. It is already put to the limit of necessity because if a guard knows or has reasonable cause for suspecting that the person concerned is committing an offence under section 3 then, ipso facto, the person must have refused specifically to leave when asked to do so and must, by his action and conduct have made it abundantly clear that he is not prepared to leave. This is implicit in the nature of the offence created by section 3.
Secondly, it is inherent in the condition in paragraph (c) of section 9 which requires that a garda must reasonably believe that the arrest is necessary to prevent damage, interference or inconvenience, and that we must be satisfied that the person is in forcible occupation and is determined so to remain. In these circumstances, to make it mandatory on the garda to make a formal request to the person to leave, would be to reduce the processes of the law to absurdity. If there were the slightest doubt as to the person's position in this respect, that is, whether he was prepared to leave, and if the garda failed to establish it with reasonable certainty, as, for example, by requesting him to leave, then he would find it very difficult to convince the court subsequently that he reasonably believed the arrest to be necessary to prevent damage, interference and inconvenience.
The difficulty Senator Owens is trying to overcome is already covered, both by section 3 and by paragraph (c) of section 9. Therefore, I consider this additional paragraph to be unnecessary.
Miss Owens: I accept the Minister's  statement that this is covered by subsection (3) and that before a garda would make the arrest, he would have at least warned the people that this was about to happen. Therefore, I accept the Minister's assurance that the amendment is not necessary. There is a similar type of warning required under section 6 where it mentions “the owner or a member of the Garda Síochána” and here we particularly want it to be a member of the Garda Síochána who was about to make the arrest. If the Minister assures me that the type of situation that might arise is covered by section 9, paragraph (c) as originally drafted and that there would be some warning given by the Garda Síochána about to make the arrest, then I would agree to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Miss Owens: I move amendment No. 30:
Before section 10 to insert the following new section:
“( ) Subsection (7) of section 62 of the Housing Act, 1966 (inserted by section 13 (2) of the Housing Act, 1970) is hereby repealed.”
This is a repealing amendment and the reason why I put it down is that when the Minister for Local Government came to the Seanad with the Housing Bill, 1970, we had heard that the Prohibition of Forcible Entry and Occupation Bill, 1970 was in draft form although it had not been circulated and it was suggested then by Senator FitzGerald that it was not advisable to bring a criminal offence under the housing code and, perhaps, it would be better to have it all covered by the proposed Prohibition of Forcible Entry and Occupation Bill.
The Minister for Local Government at that time replied that he could not wait that long. I quote the Seanad debate of 24th July, 1970, Volume 68, No. 14, column 1099:
I want to tell the House that I am not prepared to wait that length  of time, until next December possibly, for the powers which would enable me adequately to ensure that local authorities can deal with this problem....
He states further:
I want to make it quite clear that I am not prepared to wait until that Bill passes through both Houses of the Oireachtas. I want these powers as quickly as possible....
The Housing Act does not specify the use of force so that any entry without the use of force is, in fact, a criminal offence under the Housing Act. It is an important difference and one which should be removed. It could be dealt with under the Prohibition of Forcible Entry and Occupation Bill which the Minister for Justice is so anxious to get through.
Last night when Senator Brugha was speaking about squatting and the need for the Prohibition of Forcible Entry and Occupation Bill to be brought into operation quickly, he mentioned that when his party discussed the need for it—and I have no way of knowing when it was—they were informed that there were something like 375 cases of squatting in the Dublin Corporation. I shook my head at that time and the reason for that was that on the 21st August 1970 the Minister for Local Government informed the House that squatting in the Dublin Corporation had been very extensive, but that since he had circulated the Housing Bill with the proposed clause in it to deal with squatters this problem had been reduced substantially and there were at that stage 240 cases. I understand he recently told the other House that the extent of the squatting is now down to something like 135 cases.
If we are going to have a Prohibition of Forcible Entry and Occupation Bill we do not need this section in the Housing Act and, therefore, should repeal it. The Minister put it to this House at that time that he was in a hurry and he could not wait for the Prohibition of Forcible Entry and Occupation Bill. It looks as if this Bill will be law in a very short time and I do not see any reason why we  should retain this section in the Housing Act.
Mr. O'Malley: I am in difficulty that I did not apply myself to this particular amendment as strongly as I might have——
Miss Owens: Maybe the Minister will accept it then.
Mr. O'Malley: ——because of the fact that I made the error of thinking that it would not be allowed for discussion in view of the fact that it is part of the housing code rather than the criminal law.
Mr. O'Higgins: Perhaps we could recommit it on Report Stage?
Mr. O'Malley: No thanks.
An Cathaoirleach: Perhaps I might make a comment at this stage that in view of the nature of this amendment, the Chair gave it very careful and anxious consideration and decided that it was in order.
Mr. O'Malley: I find myself in the position that I do not think I could reasonably accept an amendment which would cut out an important section of the housing code which comes under the Minister for Local Government and which forms part of the Housing Acts and the Local Government Acts. That section which was put in last year was reasonably successful. I can give the exact figures later on. Because it forms part of the general housing code I feel, apart from anything else, that it would be inappropriate to amend that code in a Bill such as this which is dealing with purely criminal law. The offence created by the provision which it is sought to repeal is confined to local authority housing and is completely different in its nature from the offence created by section 2 of the Bill.
Under the Housing Acts simple entry without force is enough to constitute an offence, whereas under the provisions of this Bill it would not. Also proceedings under the Housing Act are a matter not for the gardaí but for the housing authority. It could be retrograde for us to bring the gardaí  into every local authority housing case of this kind when they can get on fairly well under the section in question. Apart from these considerations, the fact is that the Housing Act provision is designed to deal with what might be termed “peaceful unorganised squatting in local authority dwellings”. The machinery provided in that Act is simple and, subject to the absence of subversive organisations from that type of squatting, is reasonably enforcible through the courts by the housing authorities themselves. That, of course, applies only in the appropriate cases where it is genuine squatting rather than organised forcible, political agitation. It would be very undesirable that the gardaí should become involved in dealing with that type of squatting. I do not intend they should. In so far as they have to become involved with this activity at all, it should only be with the more serious organised type of activity with which it is proposed that this present Bill would deal.
Senator Owens inquired about the figures with regard to Dublin Corporation because that is the local authority which have very much the bulk of the problem as far as this type of squatting is concerned. It is rather spasmodic in so far as it exists at all in other local authorities. The figure for squatting in corporation dwellings on the 15th May, 1970 was 272. In the summer of 1970 the figure increased to something over 300. It decreased fairly drastically after the passing of the section which we are asked in this amendment to repeal. It has remained more or less constant since then. The figure on the 10th August, 1971, which is ten days ago, and is the latest figure I have, is 131. The figure two months before that date was 135 and Dublin Corporation say that while there is a very small decrease in the amount of squatting it has remained pretty constant since the reduction that was achieved by the passing of the section in question. The corporation feel that there will be no further substantial reduction under the power they have at the moment because a lot of existing squatting is organised by the subversive groups who are using force against employees and officials of Dublin  Corporation who are quite powerless to enforce the corporation's rights with regard to it.
I have received through the Department of Local Government over the past 12 months some rather lurid reports from foremen and others in Dublin Corporation about their efforts to prevent houses being squatted in and their efforts to get squatters out of houses and physical attacks on them. I do not propose to read them out, but it is a fair summary of Dublin Corporation's attitude to say that they find this an impossible problem to deal with. The section referred to in this amendment, while it has proved very useful to them in dealing with “peaceful” squatters, in so far as one could call them that, is of course no use to them where the thugs and bully boys organised by subversives are concerned.
Miss Owens: It seems to me from what the Minister has said that the effect of the Housing (Amendment) Act, 1970, has gone as far as it is going to go if it is a fact that there are 137 cases of squatters in the Dublin Corporation and the officials think it will not be reduced to any extent. The incidence of new squatting has also been reduced and these 137 are a hard core who are going to stay there to the bitter end. I also take it that the proceedings against them will be under the Forcible Entry Bill, as the Housing Act has in some way not proved adequate. There must be some reason for this or I should imagine that the local authority would have enforced the law. My main objection to the Housing Act is that it makes it a criminal offence for people to enter into, maybe, just a single room in Hollyfield Buildings or Benburb Street, which is no give-away to any family, and that if they peacefully enter and occupy it they are then criminals. I am not saying that they would be charged or that the local authority would move against them, because they are a good deal more humane than people give them credit for. But this is one of the main objections, and it would probably be much clearer if we knew under which statute the operations were going to proceed, and if it is to be the Forcible Entry  Bill then let it be. I do not agree with the Forcible Entry Bill, but if it is the law of the land then that is it and let us have it in the one statute.
Mr. O'Malley: I should imagine that with the hard core of organised squatters that are there, if actual legal action were necessary it would have to be under the Forcible Entry Act as it then would be. I am very hopeful we will have the same sort of reaction as we had last summer to the passing of this section of the Housing Act, that as soon as it is passed these people will not wait for it to be enforced against them, that they will scuttle. We may be stuck with a number who will not. We probably will, but with those I should imagine it will have to be the Forcible Entry Bill. With your permission, Sir, I will show the nature of the problem that Dublin Corporation is faced with. I should like to quote from part of a letter from a maintenance officer in the corporation to one of his superiors in which he says:
In all cases a group of men acting along with or under the direction of a lady identified by the foreman as X associated with the Sinn Féin and Dublin Housing Action Committee Organisation was involved. These instances are the latest in a series of such happenings where premises being guarded by corporation employees have been broken into by what appears to be organised groups and the illegal occupiers reinstated. The workmen feel that there is no action being taken against these people and this is leading to a deterioration in their morale. Already a number of men who have been engaged in this work have indicated that they do not wish to carry it out in future unless some action can be taken quickly to show that illegal re-occupation of corporation dwellings following eviction is not being condoned. I anticipate further reluctance by men to act in the safeguarding of dwellings and the probability that I will not be able to get any men to undertake this duty.
Miss Owens: Could the Minister give the date of that report?
Mr. O'Malley: That report is dated 2nd March, 1971, and is related to incidents that took place in a number of flats in Lourdes House and Liberty House on Friday, 26th February, 1971.
Miss Owens: It is after the passing of the Housing Act?
Mr. O'Malley: Yes, long after, eight months after.
Miss Owens: I have no way of knowing, but I believe that, in fact, the Housing Act has done all the good it is going to do and if this is still going on after the Housing Act, there is some flaw in it that has not been spotted apart from the other reasons which I have already given as to why these provisions should now be repealed and should come under the Forcible Entry Act.
Mr. Boland: A fair number of the 130 families that are now squatting might not be the people who were excluded under the latter part of the amendment to the Housing Act. People who were ordinarily resident in the dwelling at the time of the termination of the last tenancy were not covered by the amendment which was introduced in the 1970 Act. I wonder whether in the figure of 131 which are presently squatting there might not be a fair number of these people.
Mr. O'Malley: I have no figures on that. I could not really say but in reply to Senator Owens's point that it is a problem which is over so far as the Housing Act is concerned, or at least the Housing Act could not be of any further use, I do not think that is so, because I have a very recent letter dated 12th August from the Department of Local Government based on information received that day from Dublin Corporation. It states:
In the period from 1st January, 1971, to 10th August, 1971, 35 corporation dwellings were taken over by squatters. In the same period the corporation recovered possession of 67 dwellings.
Therefore, they got back in that period nearly two for every one that was taken from them. At the same  time, they regard it as very much a continuing problem.
Miss Owens: I might be able to help Senator Boland in that. I feel the figure of 131 does not include the type of people that he is referring to, because the housing authorities have always been very careful to distinguish between the squatter and what was known as the illegal occupier that was exempted under the Housing (Amendment) Act. I am pretty sure that the 131 cases referred to are the squatters, not the type of tenant whose tenancy has not been regularised and, therefore, just an illegal occupier.
Mr. O'Malley: I cannot be absolutely definite, but I think that is so.
Amendment, by leave, withdrawn.
Mr. O'Higgins: I move amendment No. 31:
In subsection (2), line 20, before “as” to insert “after the passing of the Act”.
I am not pressing this matter. I simply want to pose the question to the Seanad—I ask the Minister to apply his mind to it in the event of future legislation of this sort—as to whether or not the Houses of the Oireachtas are entitled, having regard to the provisions of the Constitution, to pass an Act in such form that its constitutionality or otherwise depends entirely on the date of operation which is fixed by the Minister. I think the Minister agreed with me on Second Stage discussion that if he were to decide to fix as the date for coming into operation of this Act when it is passed a date in the past—say 1st January last —it is open to him to do so under the form of the Act as drafted. If he decided to do that—I know that he would not—then I think the Minister will agree the entire Act virtually automatically becomes unconstitutional on the grounds that it would or might declare acts to be infringements of the law which were not so at the date of their commission.
I know very well that the Minister  would not do that and would have no intention of doing it. I am just a bit worried as to whether the Houses of the Oireachtas are entitled, having regard to the provisions of Article 15 of the Constitution, to pass into law a Bill in this form, the constitutionality of which must depend on some subsequent action of the Minister. I am not pressing this because I know very well that the Minister is not going to act in such a way as to make the Act unconstitutional. I would strongly recommend that, in future, instead of adopting what I think—and I am prepared to concede this—is the customary form here of saying that the Act shall come into operation on such day as the Minister may appoint for that purpose, that draftsmen should be careful, in Bills where offences are being created—and it is only on these ones that my argument is relevant— to include some phrase such as is suggested in this amendment, that the Act shall come into operation on such day after the passing of the Act as the Minister shall nominate.
Mr. O'Malley: I think the amendment is not being pressed very strongly. As Senator O'Higgins has said, I have absolutely no intention of doing this. In any event, I am precluded by Article 15, section 5, of the Constitution. If I were to do it, the order I would make would be null and void. Purely as an academic point, I do not think it would follow from that that the Act would be ipso facto unconstitutional. I think it would simply be the order. The method of rectifying it would be to go along subsequently and make another order that would be intra vires the Constitution.
Amendment, by leave, withdrawn.
Mr. O'Higgins: I move amendment No. 32:
To add to the section the following subsection:
“(3) This Act shall remain in force for three years from the date of its coming into operation, and shall then expire.”
This is more to recommend the idea to the Minister. I suspect that he will not be prepared to accept the amendment.  It occurs to us that legislation of this sort, which is frankly being introduced by the Minister to deal with a situation which has arisen in recent times and which may be, and would appear from the evidence available from our knowledge of what is going on in the country to be, merely a passing phase, could be regarded as emergency legislation, and legislation which at the same time has become very highly controversial and contentious. It would take a certain amount of steam out of the situation if the Minister were prepared to set a limit on the time of operation of the Act.
I expressed the view to Senator Kelly, and I think he agrees with me, that it might possibly have been better to frame this amendment on the basis that the Act shall remain in force for three years from the date of its coming into operation and shall then expire unless previously renewed; in other words, that the option to renew it should be contained in it. I certainly would recommend it as a practice for the Minister to consider in future if —and I hope there will not be—there should be other Bills of this nature. It would diffuse feeling to a great extent if a time limit for the operation of the Act were included in it.
Mr. O'Malley: This amendment assumes that the problem of forcible entry and forcible occupation which the Bill is designed to control would disappear within three years. The Government cannot accept this assumption. I, therefore, would suggest to the House that they do not accept the amendment.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Title agreed to.
Bill reported without amendment.
Tomás Ó Maoláin: Would the House agree to take the next Stage now?
Mr. O'Higgins: Might I suggest a fortnight, but not before Wednesday of next week in any event? I am not in any great difficulty as regards  Report Stage amendments because I have drafted a number, but some Senators will want to look up the debates in connection with Report Stage amendments which might need to go in. I would say not before Wednesday of next week.
Tomás Ó Maoláin: The only thing I am worried about is to bring this Bill to a conclusion. We had an excellent debate on Committee. Every section has been taken to pieces. I do not see much that could be done on Report Stage.
Mr. O'Higgins: Would the Leader of the House like to give us more time to consider what can be done?
Tomás Ó Maoláin: No. I have in mind the unfortunate people who really need to consider their wives and families for whom they have made arrangements for holidays and the staff of the Houses of the Oireachtas who have already made arrangements. I would not like to see this lasting beyond, at the very latest, next Wednesday or Thursday.
Mr. O'Higgins: I think it is manifest that there has been no obstruction or filibustering from these benches in relation to the Committee Stage discussion of this Bill which mainly occupied this week. It would seem to me to be at least a reasonable hope that Report Stage would not occupy more than two days. I do not give any undertaking in that regard; I am just trying to look at the matter sensibly. If it was ordered for Wednesday, there would be a fair chance of Report Stage being finished by Thursday. As I say, I do not give any undertaking, but we are entitled to adequate opportunity for considering amendments.
Tomás Ó Maoláin: Could we not meet earlier on Wednesday than the usual time? Instead of 3 p.m. could we meet in the morning?
Mr. O'Higgins: No, I think we should meet at 3 p.m. on Wednesday as usual.
Tomás Ó Maoláin: That really only gives you half a day.
Mr. O'Higgins: We might go on a bit later, if you like.
Tomás Ó Maoláin: We will meet at 3 p.m. on Wednesday on the understanding that we finish Report Stage.  Report Stage ordered for Wednesday, 25th August, 1971.
The Seanad adjourned at 4 p.m. until 3 p.m. on Wednesday, 25th August, 1971.
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