Wednesday, 25 August 1971
Seanad Eireann Debate
An Cathaoirleach: Before we take up consideration of the Report Stage of this Bill, I should like to indicate that I have ruled amendment No. 8, in the names of Senator Boland and Senator Kelly, and amendment No. 16, in the names of Senators Horgan and Robinson, out of order. Amendment No. 8 involves a new matter of substance which was not effectively before the Committee and amendment No. 16 is the same as an amendment rejected on Committee. The Senators have been notified accordingly. Amendment No. 2 is an alternative to amendment No. 1. Amendments Nos. 10 and 13 together form an alternative. Therefore, amendment Nos. 1, 2, 10 and 13 are to be debated together.
Mr. O'Higgins: I am just trying to get my mind attuned to this. I have no objection to discussing amendments Nos. 10 and 13 together but they are not really consequential on either 1 or  2. They could stand regardless of Nos. 1 or 2.
Mr. O'Higgins: I do not want to delay in arguing about it. It may become clear later. The point is that even with the Minister's definition of “owner” in the Bill-it would be possible to write No. 10 into the Bill.
The Minister and the House will recall that on Second Reading and during the Committee Stage discussion considerable doubt was expressed, from these benches in particular, with regard to the definition of “owner” which has been included in the Bill. Objection was raised in particular because the definition of “owner”, which is included in the Bill, includes any person having an estate or interest in the land. It was made quite clear, and was accepted during the course of the Committee Stage discussion, that the result of that definition would be that many people who had only a remote interest in land and who probably would never be entitled to actual occupation of the land—using the term “land” in the genetic sense of including  premises, buildings and so on—or to possession of land, would, nevertheless, obtain exemption from the provisions of this Bill by reason of the extended definition of “owner” included in the Bill. Many examples were given as to what that might lead to. The point was made very effectively that with a definition of “owner” such as is included in the Bill the possibility existed of this legislation being regarded and held by the courts to be unconstitutional. The effect of it might well be that of two people committing the same act, under the terms of this Bill one would be committing a criminal offence and the other would not be committing a criminal offence at all.
I do not want to labour this at any great length but the House will recall that during the Committee Stage discussion the Minister gave an undertaking to the House that he would look at this problem again between Committee and Report Stages. I am disappointed to note from the list of amendments before us that whatever consideration was given to the matter by the Minister has not resulted in his changing his mind with regard to the definition of “owner” contained in the Bill. That makes it all the more important that we should press the amendment now before the House. I suggested during the last discussion that the Minister's difficulties would be largely resolved as regards the matter of ownership if he altered the definition of “owner” so that it would mean what we all intend it to mean in relation to this Bill, namely, the person who is lawfully entitled to occupation of the land. Amendment No. 1 makes precisely that suggestion, that instead of the extended definition of ownership contained in the Bill we should alter it so as to read that “owner” in relation to land means the person lawfully entitled to occupation thereof.
I do not think that there is any doubt in the mind of any Senator that what was intended from the start in relation to this Bill was to protect the person who is lawfully entitled to occupation from disturbance or from being ousted by persons who are not  lawfully entitled to possession. If the simple definition that is contained in amendment No. 1 is accepted by the Minister, it will meet the Minister's difficulties. The Minister pointed out, and I think quite rightly so, during the course of the Committee Stage discussion that not alone are landlords exempt from the provisions of the Bill but that there is a balancing exemption in favour of tenants, even of those who overhold after the expiry of their tenancy. I made the point, as did other Senators, that it was not really a balancing that was taking place, because so far as the tenant was concerned he was a person who had an immediate interest in possession. Even a tenant who was overholding after the tenancy expired and was in actual possession was at least a person who had an immediate interest in possession of the premises. On the ownership side it would only be the landlord, or the person who would be entitled to possession immediately the tenancy of the tenant had expired who would or could be regarded as having a more or less immediate interest in occupation or possession.
The pyramid of interest, of which we spoke last week, that is, people with remote superior interest in the premises, could not be regarded as having a genuine interest in possession or occupation. The Minister pointed out that some of these superior interests would have the right to occupation in the event of a breach of any of the terms or conditions or covenants in the instruments under which the subinterests were created. The subinterests stand between them and the immediate right of occupation.
I concede quite freely and without any hesitation that that may be so. However, it is not always so. In some cases, even in cases of leases, forfeiture for a breach of covenant may not necessarily be one of the penalties involved, except in the case of nonpayment of rent. Even in that case there will certainly be a right of redemption vested in the lessee should an order for possession be obtained against him. My approach to this Bill and to this particular definition is that the two classes of people who should be  catered for in the Bill are the landlord who in the immediate future, or in the reasonably foreseeable future, may be entitled to possession and occupation on the one hand, and on the other hand the tenant in occupation. The amended definition of “owner” which I am now suggesting with all diffidence would meet the difficulties which the Minister foresaw, and would meet the difficulty which he emphasised on the last occasion that he did not want to make the criminal law the dominant theme in landlord and tenant relations. Under the definition which I am suggesting now, that owner in relation to land means the person lawfully entitled to occupation thereof, it would still be a matter for determination by the civil courts as to who was the person lawfully entitled to occupation. The criminal law would not, therefore, enter into that at all, but would only begin to apply under this particular Bill, when enacted. It would only begin to apply when a person who was not lawfully entitled to occupation acted in contravention of the provisions of this Act. It is open to the civil courts to give a determination on the question as to who is lawfully entitled to occupation.
Mr. O'Higgins: As we are discussing them together, may I say that amendment No. 2 is something of an extension of the idea contained in amendment No. 1? If amendment No. 1 does not suit the Minister, we offer him amendment No. 2 which is to amend again the definition of “owner” and under the second amendment the owner would mean “the lawful occupier, or any person lawfully entitled to the immediate use and enjoyment of land whether occupied or unoccupied, or any person formerly so entitled”.
I prefer amendment No. 1 which is a simple, clear-cut definition and which has the effect of removing the matter out of the criminal law so far  as the question of determining who is legally entitled to occupation is concerned. If the Minister feels that in seeking after clarity and simplicity the definition in amendment No. 1 misses out some contingencies which he would prefer to have covered in the Bill, amendment No. 2 might meet with his approval.
The other two amendments, Nos. 10 and 13, can stand regardless of whether the new definition of “owner” which is being suggested is accepted. It should be possible to limit the exemptions which are being granted from the provisions of this Bill by acceptance of amendments Nos. 10 and 13, even if the extended definition of “owner” is accepted, if we provide in section 2 that “owner” in that section is the owner lawfully entitled to occupation. Again, in the next section the Minister's own definition would not be interfered with but the vast area of exemption which is opened up by the Minister's definition under the definition section of the Bill would be curtailed considerably and the exemptions then would not be granted to people with remote interests in the property, who would never occupy them, but would be granted only to an owner who would lawfully be entitled to occupation. That would cut out a consideration in relation to exemptions, the pyramid of interest we were talking about on the last occasion.
These amendments are not, in any sense, intended to weaken the provisions of the Bill. They are not intended to open up loopholes. Quite the contrary. They are moved for the purpose of getting uniformity in the application of this measure when it becomes law and to get uniformity so far as the applicability of the measure is concerned and also to cater for the layman of whom Senator Nash spoke who should be able to understand the legislation which is going through. These amendments would simplify the measure and make it more understandable both to lawyers and laymen and would eliminate, to some extent if not entirely, the possibility of this legislation on these grounds being ruled unconstitutional.
Professor Kelly: I only want to add a few words to what Senator O'Higgins has said. During Committee Stage I outlined the pair of dilemmas in which the Minister found himself by reason of the present condition of this Bill. It is a declared part of his policy, with which I do not disagree, that the criminal law should be kept, so far as possible, out of what are primarily civil law relationships and that, as he put it graphically, the Guards should be kept out of the typical landlord-and-tenant case.
The result of the Bill as it stands is as follows. The word “owner” is defined in such a way that, as Senator O'Higgins stated, it can include people whose interest in the property is wholly non-beneficial and will never be anything else, for example, that of a trustee. It can include persons whose possibility of ever being entitled to possession is so remote as to make it possible to describe the chances against it as astronomical. Reducing it to its simplest terms, it includes persons who, at any given time, have no more right to step across the threshold of a premises without the tenant's permission than has somebody who is absolutely unconnected with the premises. Therefore, the situation arises that as between two persons, both, under the existing law, equally disentitled to enter the premises, both doing something equally unlawful under existing law, if they enter on the premises— the fact that one of them may have a remote superior interest or a trustee does not render it, in existing law, any more lawful—under the law as now proposed, one of these persons will be liable to a criminal prosecution and the other person who enters simultaneously with him will not. We think that is potentially unconstitutional. Even if we are wrong about that, it is most unfair. The Minister's only defence to this anomaly, and Senator Nash admitted that there were anomalies in this Bill, was that he had no option but to leave this definition as it was, otherwise he would be, as he put it, importing the Garda into a landlord-and-tenant relationship. He obviously felt that if a mortgagee or a remote landlord or trustee did commit a forcible entry, it should be left to the  ordinary civil processes of injunction, et cetera, at the suit of the tenant, to put him out again.
The Minister was weighing up two separate values. On the one hand the unfairness, the anomaly which we have pointed out; on the other hand his desire, with which I do not basically disagree, to keep the Garda Síochána out of private relationships. But, as we also pointed out, something will have to give. We cannot have an unfairness as basic as this in our law and expect to be able to hold on to the other rules of thumb. In other words, if the Minister insists on giving priority in his scale of values to keeping the Garda out of this relationship, he is going to allow this legislation to give rise to a very serious unfairness.
After the Committee Stage debate it was stated in an editorial in one of the Dublin papers that we had pointed out a flaw in this Bill which demonstrated once again that the Bill was intended to favour landlords. Naturally, I appreciate being commended by the Press, but, in a sense, that comment was not doing complete justice to the Minister's side of the case. It is not only landlords who are being exempted from criminal liability here. It would be unjust to suggest that this unfairness in the Bill is intended to advantage only landlords. It is not only landlords. There are people like trustees who will never, until the seas run dry, be beneficially entitled in any respect to occupation, use or enjoyment of the property; and these people are also exempted. That is a very serious unfairness, possibly unconstitutional, and our view is that it should have taken precedence over the retention of any rule of thumb in regard to keeping the Garda out of private relationships. That is one horn of the dilemma.
It is to meet both these difficulties that I have put down amendment No. 2 which I think will meet them neatly. The other horn is that if the Minister wishes to keep the Garda out of what should be private relationships, either landlord and tenant relationships, or relationships reasonably analogous to them, he cannot leave in the part of the definition relating to an  owner the words “including the person who remains in occupation of land after the determination of his tenancy therein”. That is an artificial extension of the notion to include an overholding tenant, but an overholding tenant is only one instance of a whole series of cases in which a typically civil relationship can result in somebody wrongly denying possession to the person entitled to it. The overholding tenant is the one and only instance that the Minister has put into his Bill.
We have said before that a permissive occupier whose permission is withdrawn, who barricades himself in and refuses to get out, is not within this protection. He will be committing a criminal offence even though he is not in any way connected with a subversive organisation and he is, therefore, not in the typical case the sort of person at whom this Bill is essentially aimed. I am not trying to imply that that is not genuine. I believe it is aimed at subversives. But this kind of person is not in the ordinary case a subversive; neither is a licensee, let us say, a longstanding guest of a family, a paying guest, perhaps, who refuses to move out when the tenant dies and when the landlord wants to resume occupation. That sort of person is not in the typical case a subversive or connected with subversive organisations. Perhaps, it may be an old cranky man or woman who says: “This is my house and I am damned if I am going to move out. You can shoot your way in if you have to.” That type of person should not be treated by this Bill as a criminal but that person is outside the exemption which the Minister has provided for in the definition of “owner”. In other words, in this case so far as the persons in situations analogous to an overholding tenant are concerned, the gardaí are going to be brought into the relationship. The criminal law will be applied in this situation which basically should be a private or civil law situation.
We have said before, and I do not wish to weary the House by repeating it again, that the Minister is in an absolutely inextricable dilemma here from which nothing will free him except the votes on his side. The purpose of this  amendment is to try to straighten out both these problems. Something will have to give. My own view is that discrimination or injustice should be avoided even at the cost of bringing the Garda into relationships, some of which may be of a purely landlord and tenant kind. Subject to correction both the problems which I have outlined would be adequately dealt with if the Minister saw fit to accept amendment No. 2. The effect of the amendment is to equate “owner” in the first part of this paragraph with
That implicitly cuts out trustees. It cuts out the Earl of Pembroke and ground landlords. It cuts out any kind of landlord. It also cuts out at the other remove the possibility that people like overholding permissive occupiers are going to be criminally liable because the words “any person formerly so entitled” are intended—by me, at any rate—to make it clear that if anybody at any stage was in lawful enjoyment of the premises—let us say a paying guest, an elderly man or woman who will not get out after the tenant dies—somebody like that undoubtedly is liable to the civil remedies of the landlord but should not be treated as a criminal.
The effect of amendment No. 2 would be to solve both these difficulties—at a price, of course. The price will be one the Minister clearly is not willing to pay, namely, that in certain cases where a landlord or somebody with a remote interest takes it on himself forcibly to enter or occupy premises to which he has no right in possession, a crime will be committed. That is the price that would have to be paid. But that price, high though it may be, seems to me to be preferable to the inequity and anomaly which will otherwise result if this part of the definition section is allowed to stand unamended.
Mr. Alexis FitzGerald: I should like to support the spirit of these amendments. There is an unreal  dilemma here for the Minister. If I am correct, the present position is that nobody with any interest in property is entitled to make forcible entry into that property other than the person entitled to the immediate use and occupation of it. This amendment which will exempt all such persons— and they are even more extensive than those which have been enumerated, including as they do the mortgagees of all the interests that have been mentioned in the pyramid, the beneficial or legal owners of rent charges that may have been charged on any interests in the premises—who now have no right to make forcible entry to do so without being criminally liable. The Minister has provided— and having so provided it seems to me necessary to have the point made in debate here that in doing so they will be acting without lawful authority— that no right is being altered which at present exists. That is correct. If they do make this entry they will be civilly liable to the persons who are damaged as a result but they will be free and exempt from criminal liability by virtue of this Bill where at this moment they are liable.
Assuming that there was nobody at home when the landlord or his agent went to demand possession he got into possession. Then the tenant discovers this an hour or two later and is very perturbed about it. The normal thing for the tenant to do would be to go back into his house. That is what most tenants would do in the particular circumstances.
The Minister stated that if he accepted these two amendments in the names of Senators Robinson and Kelly the position would be that that tenant would thereby commit an offence under the Bill. The position would be that that landlord would have committed a criminal offence under the law as it stands at this moment. There seems to me to be a misunderstanding that is basic to the Minister's whole approach to this. He thinks that if there is a forfeiture clause in a lease or if there is a right arising to serve a notice to  quit and if the notice to quit is served properly in accordance with legal documents, it is then open to the landlord or the person with the right formally under the documents to go into possession. It is not. He will be committing an offence if he does so. Only one person can give him possession, that is the sheriff acting under a proper order of the court.
This is most important for an understanding of what lies at the root of this. It is worth telling the Minister, if he does not know it, that it is extraordinary how people can misunderstand the nature of their interests in property. People have talked to me about the gross corruption of some agent who made a letting of a property in a certain street and only got £115 or £80 a year for it and said that steps should be taken immediately to recover possession. When I examined the documents I found it was a lease for 150 years which means they have no interest whatever which would entitle them to terminate prematurely the interest created. But they have the idea that this is their property because they have a right to get some fractional return on the investment which was originally made and which was renewed by the negotiations which the allegedly corrupt agent brought to a successful conclusion.
The very persons who are now going to be exempt under this Bill when it is enacted are the persons who are most likely to think they have a right to entry. It is most important for society that legal processes be applied in giving them any right to entry, that they should have to go to the court and establish to the court that they have a right immediately exercisable. They then get a court order which preserves, incidentally, in most cases the right to the defendant in question to clear the plaintiff off by payment of whatever is in arrears and the costs of the proceedings. If they get this order, then the sheriff, the lawfully appointed authority, is the only person who can make forcible entry and give possession. That is all going to be changed if I understand the present position in terms of criminal law.
The civil liability still remains and  although my colleague, Senator Kelly, seems to understand what the Minister means when he says he does not want the police brought into civil proceedings—none of us wants that—I do not understand how the inclusion of all these persons as persons who will be liable for criminal offences if they make forcible entry will bring the police into civil disputes any more than they are in at the moment. If the Minister will tell me how extending the exemptions which do not exist now, or failure to create the exemptions, will bring the police into civil proceedings that are not liable to be brought now, I should be illuminated in my understanding of what is proposed in this Bill.
If I had to make a selection between the two amendments that immediately arise, I should choose the second because it seems to preserve the whole position in regard to dominant and servient tenements. If the Minister is at any stage going to amend this legislation he will make his own draft but a licensee would not necessarily be either a person entitled to immediate use or occupation or be a person who once had it because one of the points about a licensee, if you want to prevent him having a tenancy interest, is that you have got to deny him the exclusive right of use. The licensee, which term would take in a vast number of persons, would really have to be included here to make the foundation of this Bill a satisfactory one on which to ground a criminal law which is just as between persons who should be treated as equal. To adopt Senator Kelly's point on this, I should have no more right to break into my neighbour's property and be criminally prosecuted for it than my neighbour's ground rent recipient. Under this new law the receiver of the ground rent can go in and will not be criminally liable, but if I make forcible entry I will be criminally liable. We will not be equal before the law in terms of criminal liability, or, indeed, as far as I understand the term, civil liability, but certainly in terms of criminal liability.
Mrs. Robinson: I should like to support amendment No. 1. I should like  to support it in a qualified sense in that it relates to the definition of the word “owner” and I prefer this definition of the word “owner”. The logic of my further amendments would be that I should only be concerned with the definition of the word “owner” in so far as it related to compensation to the owner under section 6, that is, under the criminal and civil liability with regard to damage to property that would be paid to the owner. The relevant “owner” in the context would be either under amendment No. 1 or No. 2, the person lawfully entitled to the occupation. It would be his interest in the property which would be damaged in the circumstances. The reason I say this is, as Senator FitzGerald has said, in having any other definition of “owner” in the context of the Bill we are making a most unwelcome departure from the existing law. We are exempting anybody either with an estate or interest in the land or someone with the permission of such person from criminal liability for forcible entry.
I should like to refer briefly to the Committee Stage of the debate in the House. On 18th August, 1971, at column 310 of the Seanad Debates, the Minister described what he sees as the problem in relation to the definition of “owner” and that it would mean the extension of the criminal law into the field of civil liability. On that occasion the Minister said:
Try as I might and try as people a lot more learned and experienced than I did, we simply could not come up with a solution to this difficulty, if difficulty you can call it, because it is really only a political difficulty rather than a legal one. The reason we could not come up with a solution was that if you make people who have an estate or interest in land subject to the provisions of this Bill, you bring the criminal law into the private relationship between the landlord and tenant, mortgagor and mortgagee or indeed any other two groups of persons. Their rights as against one another, if they are in dispute, are a matter to be solved or settled by a civil court. That is one of the fundamental  principles underlying this Bill. I want to ensure that they will continue to be solved or settled by a civil court. If I were to accept these amendments here or the similar amendments proposed in the Dáil, it would mean that the private relationship of landlord and tenant, mortgagor and mortgagee, lessor and lessee or any other two similar relationships of the dozens that are possible, all of those would become subject to the criminal law. If a dispute were to arise in the future between any of these two private individuals in their contractual relationship or their relationship of tenure, to describe it more accurately, the Garda, the Attorney General and the State in general would be dragged into the solution of that problem.
I hope the Minister is blushing as I read that. With respect, it is a great load of rubbish. It is quite obvious from the terms of the Forcible Entry Bill, from the definitions of forcible entry and forcible occupation we are defining in the Bill that it has nothing to do with the contractual relationships between landlord and tenant, the relationship of the mortgagor and mortgagee and could never have had. We are talking about forcible entry and occupation, entry on a building by force of arms, or in numbers that terrify the occupant. We are talking about “going with multitude of people to enter”. We are not talking about relationships between landlord and tenant and we never would be. Therefore, I cannot understand the Minister's problem if he is aware of the law as it is, as I assume he must be. I just follow his next sentence and it is from this that I take a mandate to continue discussing this. He says: “It would be very pleasant for me to knock out these words.” Quite honestly I align myself here with Senator FitzGerald. I cannot see why it is not possible to knock out these words. I cannot see why in 1971 in Ireland we must give exemption to owners. Although this point was touched on to some extent on Committee Stage, it is necessary to state what the existing law is, because we have it from the Minister, since the  Committee Stage in this House, that the earlier Forcible Entry Acts are still operative although I agree with him that they are old and unlikely to be implemented. Nevertheless, they do operate, they are the law.
The law under the Forcible Entry Acts is that forcible entry by an owner, even if he has the right to possession on land, is a criminal offence. The Minister on the last occasion was quoting from Russell on Crime and I should like to quote from the 10th Edition of Russell on Crime, chapter 22, on forcible entry and occupation. He talks about statutes of forcible entry and says:
Whatever may be the true doctrine on this subject at common law, the statutes which have been passed respecting forcible entries and detainers are clearly intended to restrain all persons from having recourse to violent methods of doing themselves justice; and it is the more usual and effectual method to proceed upon these statutes, which give restitution and damages to the party aggrieved.
Where the person who has the legal title to land is in actual possession any attempt to eject him by force falls within the statues of forcible entry. The rule applies even if the possession has only just begun or has been acquired by forcing open a lock, and even where the ejector sets up a claim to possession.
A man who forcibly enters into a tenement of which he is the sole and lawful possessor, e.g. 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 the bare custody of it, is not guilty of a forcible entry or detainer within the statutes.
This is the idea which the Minister mentioned the last day of the person who has mere custody, who slips in  between five o'clock and six o'clock in the evening. There might be, and there appears to be, some problem in this connection.
The definition of “owner” that we are setting out under this statute is much wider than that; it is not confined to the owner having the right of lawful possession of the property. The problem that we are faced with is that we are trying to depart from what has been the law to date, trying to introduce a new principle of exemption, and trying to do so without stating that this is what we are doing. The Minister at no stage, as is normal, I think, in introducing a new principle of law, has actually stated that he is departing from the position under the existing law. After a very long and involved debate on Committee Stage, he eventually conceded that he would repeal the earlier statutes.
I think there might be an argument that, unless this is done in an amendment which I have proposed, they might be repealed implicitly because the principle under these statutes is different from the principle that we are putting forward under the Prohibition of Forcible Entry and Occupation Bill. Like Senator FitzGerald, I cannot see where there might be this danger of introducing the criminal law fairly and squarely into landlord/ tenant relationships or mortgagor and mortgagee relationships, because we have the example of a jurisdiction in Britain where the criminal law prevents forcible occupation by an owner of his property and yet the courts are not besieged by criminal actions. The normal landlord and tenant remedies are taken and the criminal statutes are confined to the very rare circumstances of forcible entry.
My final argument on this is that it does not seem to me that we should at this stage permit an exemption to any person who has an estate or interest in the land, or any person on behalf of the owner, or any person with the permission of the owner, to forcibly enter a building. I do not think that is a principle that we ought to condone; I do not think it is something we should welcome in Ireland.  We should keep the relationship between landlord and tenant in the civil courts and we should punish as a criminal offence any forcible departure from the normal channels —in other words, any forcible entry, even if a person who is forcibly entering either claims to be the owner, claims to be entering on behalf of the owner, claims to be entering with the permission of the owner, or claims some remote estate or interest, some right to the ground rent or something like that, in which case he could not be proceeded against.
That is not an answer. Nobody is saying they have been conferred with any civil rights; nobody is saying that the civil position is being interfered with in the slightest. What we are saying is that this section creates exemptions to owners and that this is an exemption from criminal liability which did not exist before. It is one that we do not welcome and, therefore, to the extent that this amendment cuts down on the definition of “owner” for the purposes of this Bill I support the amendment.
Mr. Nash: I have listened with interest to the debate and I must say it would be a beautiful thing if all law could be absolutely symmetrical, as in dealing with the physical sciences. If you want to produce something absolutely perfect in the physical sciences you do it by machine. You can multiply it by the hundred or the hundred thousand and have so many hundred thousand articles absolutely identical with each other.
In dealing with the social sciences one is dealing with people, and people are not the same. The rights, the duties and the obligations of people are not the same. In certain countries this is acknowledged. To take the most  obvious instance, in Belgium where there are two different nationalities, two different traditions, two different backgrounds, one needs separate types of law to apply to each. The same is the case in the Swiss cantons. That is just taking it on the general background.
I can see the logic of what Senator O'Higgins and Senator Kelly said. I find, however, some difficulty in agreeing with what Senator FitzGerald said. He said that heretofore if a man, a landlord, got a decree he was not entitled to possession and that before he would go into possession the sheriff was the only person who could give him possession. To quote his exact words. He said: “This is all now going to be changed”.
Let us start off with the facts. That is not so; that is not being changed. If a landlord still gets a decree, if he wants possession, he can get possession only through the sheriff. If he endeavours to get it in any other way he is subject to the same law, the same liability, to which he was subject up to this moment. There is no change whatever in the obligations upon him.
Mr. Nash: I found it difficult to follow Senator Robinson's arguments. On the one hand she agrees that there should not be an importation of criminal law as between landlord and tenant, between mortgagor and mortgagee, between any two people who have, or claim to have, rights in the same property. She says these should not come within the criminal law. Then she goes further—I do not know whether it is intended as support of the amendment before the House at the moment—and states that there should be civil remedies only in any case of forcible possession. We are dealing here with a completely different matter. We have decided that this Bill is necessary and important for the protection of public order.
In succession there are so many interests, perhaps hundreds, involved in title to property that it is very, very  difficult to discriminate between them. One even has interests which seem to overlap, such as where the interests of one party, who has had title to property, seem to overlap the interests of another party, who has a different title to the same property. If the force of the criminal law was introduced for enabling those people to decide what were their legal interests, how their legal interests should be discriminated and how their legal interests should be proved, it would be entirely wrong.
In my opinion a Bill on these lines is absolutely necessary but I feel that criminal law should only be brought into effect to the minimum extent. The necessity for criminal law is almost an evil in itself. When one must have a criminal law the fewer people to whom it will apply, that is within the principle of applying it so that the law does not discriminate against anybody, the better.
There is an enormous difference between the person who has a legal title to property and a complete outsider who can defend himself if he so wishes by showing, in accordance with section 5, that he has a bona fide claim to ownership. He should have some bona fide claim otherwise the criminal law could, should and, in my opinion, must apply to him. Within those limits I do not think it should apply. Furthermore, if one introduces this limited meaning for ownership one really takes the teeth out of the Bill altogether. One of the main purposes of the Bill is to prevent damage to property by people who have forcibly taken possession of that property or who are remaining forcibly in possession of that property. That enables the owner, as defined in the Bill, to make a complaint to the Garda. It enables the Garda to call upon the person in possession to leave the property. If he does not leave with all reasonable speed he is committing an offence. It also precludes the owner from being liable for damages if he, with the assistance of the Garda, endeavours to regain possession of that property. If damage is done to the property in the course of regaining possession from the people who have  forcibly possessed it those people must pay the damages.
The acceptance of the amendment would also take the teeth out of section 9 of the Bill where “owner” is again referred to. The owner can represent to a member of the Garda that “the member proposing to make the arrest reasonably believes” that as a result of the continuance of the offence serious damage will be done to the land. One can visualise hundreds of circumstances and hundreds of cases in which all of the teeth would be taken out of those sections if the definition of “ownership” were de-limited. A person may have possession of his or her flat forcibly taken by a group of people, aided or unaided by semi-political organisations or semi-military organisations. That person may say: “All right. The rent which I was paying for the flat was fairly steep and I certainly will not risk my neck in having criminal proceedings brought against these people who took forcible possession.” Who then will risk his neck? Should not the owner of the property be entitled to take criminal proceedings, or at least to start criminal proceedings, to make the necessary complaints, to see that possession is handed back or even to go to the extremes stated here? Should not the person who has a mortgage on the property, perhaps a mortgage to the full value of that property, also be entitled to report to the Garda and take all the necessary steps to regain possession? The Bill would be severely limited in its power to prevent criminal injustice if this definition were altered.
My second point is that there will be an introduction of the criminal law into spheres of private relationships where they should not exist. For those reasons I strongly support the view that the definition in the Bill should be retained. Retaining it will not create an injustice to anybody. It creates a crime applying to certain people where that crime heretofore did not exist. Much as we regret having to make a state of affairs criminal one must admit that what has happened in this country, and particularly in this city,  over the last 12 months or two years has made it essential that we do so if we are to have any regard for the normal rights of people.
Minister for Justice (Mr. O'Malley): The four amendments which we are discussing are essentially the same as similar amendments discussed at very great length on Committee Stage. I said last week that I would have a look again at the basic point out of which these four amendments arise to see what we could do. The position is precisely as I found it last week. The consequences of accepting any one of these amendments, or something similar to these amendments, would be out of all proportion to whatever might be gained. I am not at all satisfied that anything would be gained by accepting them but if anything were to be gained the consequences we would create would be enormous in the effect that they would have on the whole basis of our landlord and tenant law in particular and our property law in general. Senator Alexis FitzGerald confesses his inability to see why this should be so.
Mr. O'Malley: I accept absolutely that it is genuine but I am sure if he read and considered what I have already said, both in this House and in the other House—those comments were quoted at some length by Senator Robinson today—he must be able to see that if we introduce the criminal law into the area of property law, and in particular landlord and tenant law today, in 1971, the social consequences of it will be enormous. They are consequences that I do not want to see come into effect.
Mr. O'Malley: I did not interrupt the Senator while she was speaking. I should like to be allowed to make my own speech. There was a very great deal in what the Senator said on which I could have legitimately interrupted but I refrained from doing so. If the Garda are to be put in the position to  decide whether or not a person is “lawfully entitled to occupation” of land, quoting the words in amendment No. 1, or they have to refer it to the Attorney General to decide it, I ask Senators seriously to ask themselves what the consequences of that will be. There will be delays, and the Garda and the Attorney General will have the duty of adjudicating in all sorts of small private disputes that the existing civil law is perfectly capable of deciding.
Undoubtedly, if these sort of disputes are to be brought within the ambit of this Bill people will avail of the fact that it is not they who will have to make a move in court but rather the State and they will throw the onus over on the State, on the Garda, on the Attorney General. This type of private dispute, arising out of a landlord and tenant or similar relationship between two private individuals, should not be a matter that should concern the Garda or the Attorney General. I have to resist any effort to make it a matter that should concern the Garda. I, quite genuinely, cannot see why Opposition Senators should wish to make the matter the concern of the Garda. They say that some people will be treated unfairly or there will be inequity if this is not done. I cannot see that there will be inequity.
Senator Kelly made the point that two people could forcibly enter a house, one of them being the owner and the other not the owner. Therefore, under the Bill one of them would be committing an offence and the other would not. This is an example that Senator Kelly gave us but I ask the House to ask itself if it is a reasonable example. Do you get situations in which people try to commit a crime against their own property? Can you honestly envisage a situation in which a man will go along deliberately, in concert with somebody else, to break into his own house, to damage his own property?
Mr. O'Malley: I suppose it is possible in every Bill that comes before the Oireachtas to concoct or think up  some sort of situation like that and then say that because it is possible— and, of course, I suppose it is possible —that a man wants to break into his own house and smash it up, he could physically do it if he wants to.
Mr. O'Malley: If we are to concoct or think up points of that kind, I am sure that similar points could be thought up in regard to any Bill that comes before the Oireachtas. You have to accept, when you are legislating, that human beings, for the most part, will act as human beings and in a reasonable and rational way. When points of this kind are made, it is then said that because the Bill does not cover them the measure is all wrong and will be declared unconstitutional. I have no way of anticipating what sort of decision the Supreme Court might give on any section of this or any other Bill. One simply cannot foresee that. To a great extent one now has to take one's life in one's hands as far as a decision on constitutionality is concerned. But I cannot reasonably feel that I should be expected to amend the Bill, or ask the House to amend it, in order to meet a kind of ludicrous concocted situation of that kind.
Were I to amend the Bill the Garda would have to decide whether or not a man was lawfully entitled to occupation of a particular house or of land. It is difficult enough for the Garda to try to acquire sufficient knowledge of the criminal law without expecting them to operate this. Criminal law covers a very big field. One could spend many years of one's life studying criminal law and still not be a great criminal lawyer, but the law of property is notoriously difficult. The great majority of solicitors who might spend their entire lives dealing for the most part with property would probably, after 30 or 40 years practice, still say, if they were honest about it: “I am not a great property lawyer.” It is the most notoriously difficult and complicated branch of the law because of its feudal beginnings and its long and rather torturous development from  feudal conditions, which were so totally different from our own.
At the moment not only are the Garda and the Attorney General not expected to adjudicate on such matters but, indeed, one of our courts is to a great degree excluded from deciding matters of this kind. With certain exceptions, the district court has no jurisdiction to try title actions or to decide on the question of title to land. When the district court was set up in 1924, it was apparently felt that questions of title to land were so complicated that it would be better if the district court did not have a general jurisdiction with regard to it. That, with certain exceptions, is more or less still the position today.
Notwithstanding that kind of situation, the Senators who tabled these amendments seek to create a situation in which the gardaí on the spot would more or less have to make up their minds as to whether action on their part is justified or not. They would have to try to decide there and then whether or not a person involved in some sort of incident was lawfully entitled under the law of property to go into the premises in question. I think that is quite unreasonable. It expects far too much of the Garda.
Apart from its effect on the Garda, it creates a situation that I have spoken about time and time again. One of the dominant themes in our property law and in particular in our landlord and tenant law would then become the criminal law. To say that landlords had been bound by this as against tenants since 1381 is, of course, ludicrous because the relationship of landlord and tenant in its modern concept did not exist at all at that time. It was never thought of or contemplated.
Mr. O'Malley: ——one of the remarkable things like copyholds. But to say that landlord and tenant in the sense in which we know it from Deasy's Act onwards—it was essentially created by Deasy's Act and developed in our 1931 Act—existed 600 years ago and that landlords were prevented from doing certain things 600 years ago is quite ludicrous because they did not exist 600 years ago. In the course of his speech today, Senator Kelly referred to a leading article in a Dublin newspaper: I cannot remember which one——
Mr. O'Malley: I glanced at the article at the time. He said that it sought to commend him for some point that he made but that it did not get the point accurately. I certainly agree with him that from my reading of it it did not get it very accurately. It sought to put across the fiction that this Bill in some way sought to assist landlords as against tenants.
Mr. O'Malley: I differ strongly with Senator FitzGerald on that point. He must appreciate that he is wrong because this Bill as it stands, without the amendments now being urged on us, puts landlords and tenants in precisely the same position.
Mr. O'Malley: It gives them no rights whatever and it gives them no more immunity than has any other person involved in the land concerned and that includes the tenant above all. It is a pity that people who speak about this definition and this section, and who write articles to the effect that landlords are being given some extra immunities that are not given to  anyone else would not take care to read the Bill and to understand it. They would then realise that a tenant is at least as much an owner within the meaning of this definition as the landlord himself. The outstanding example of it is—and it is by no means the only one that could be given —the question of the overholding tenant, and the giving of immunity to him. This definition quite clearly gives him that immunity at lines 29 and 30.
What I found difficult to follow today was Senator Kelly's rejection of those words in brackets, at lines 29 and 30, which give this exemption to an overholding tenant. These words were inserted by me in the Dáil at the suggestion of Deputy O'Higgins and Deputy Fitzpatrick during their speeches on Second Stage.
Mr. O'Malley: Today I clearly heard the Senator objecting to these words. I find it very difficult to follow his reasoning because he says now that he wants to extend these exemptions. His whole speech on these amendments was to restrict the exemptions, in other words, to make more people liable to the criminal law. It is perhaps worth bearing that in mind. My anxiety with regard to the criminal law, especially in a matter of this type, is to have it extend to as few people as possible in order to avoid bringing the Garda and the criminal law into property relationships and landlord and tenant relationships. The effect of these amendments would be to decrease drastically the number of exemptions and therefore increase, correspondingly, the number of people who would be subject to it. It would also increase correspondingly the duties of the Garda and the influence of the criminal law in regard to private relationships and the law of landlord and tenant.
Last week I gave a number of examples and Senator Robinson sought to sneer at them. I am not going to repeat them now but I should like to regard them as having been repeated. I gave examples from column  309 onwards in Volume 71 of the Official Report. They are all perfectly valid. I have re-read what I said on that occasion, every word of which is correct. The examples given there are true ones. A limited number are examples of the consequences that would flow from accepting these amendments or amendments of this type.
One of the effects of the definition of “owner” as it stands is to allow people to act on behalf of those who cannot act for themselves. The amendments which are proposed here would seek to delete, inter alia, that provision that people who are unable to act for themselves should have someone act for them. When these amendments are so facilely put down and moved I wonder do the proposers and supporters of them realise the consequences of those amendments? Quite apart from the fact that they do not seem to realise that they would be bringing the Garda in a very big way into landlord and tenant law, and into the private affairs of private citizens, they also do not realise that they would effectively be preventing limited companies from dealing with their property.
Mr. O'Malley: There are cases where people are legal entities, or quite clearly are incapable or unable to act by themselves. That is perfectly clear. The first amendment, which seeks to delete the whole definition, would prevent anybody acting on behalf of another. There is the ludicrous consequence where in the present day situation where limited companies own a very great deal of property, the effective owners, or owners in popular terms, of all that property would be precluded from protecting or looking after their own interests and property.
Mr. O'Malley: As far as I understand the purpose of amendment No. 2 it would seem to seek to include in the exemptions persons who were formerly permissive occupiers but who are people from whom the licence to reside in a particular premises has been withdrawn.
I have already explained at some length the difficulty in regard to that. The proposal to exempt a licensee or an invitee from whom permission to be in a premises has been withdrawn will give an immediate out to defendants who might be prosecuted for forcibly occupying some premises such as a shop. In addition, there appears to me to be the extra difficulty, arising out of amendment No. 2, that “owner means the lawful occupier, or any person lawfully entitled to the immediate use and enjoyment of land  ... or any person formerly so entitled”.
From a drafting point of view it would seem that, under the amendment, any former owner, in the sense of somebody who has assigned his interest in the property and no longer claims any interest, would be exempted from any offence under the Bill. Whatever argument can be put up against those who presently have an interest in the premises, no conceivable argument can be put up for this amendment, which would seek to give exemptions to those who on some former occasion had an interest. Amendments Nos. 10 and 13 have the very same effect as amendment No. 1. Whatever remarks can be made about amendments Nos. 1 and 2 equally apply to amendments Nos. 10 and 13, because the consequences of accepting amendments Nos. 10 and 13 would be the same as the consequences of accepting either amendment No. 1 or amendment No. 2. If I had originally drafted this definition on the basis of the amendments now proposed, it would be so obviously anomalous and would give rise to such immense difficulties and put the Garda and the criminal law into positions for which they were never intended, that I have no doubt I would have been strongly criticised by the Opposition. They cannot have it both ways. They are always entitled to criticise my proposals, whether they be right or wrong; they are not entitled to seek to insert into this Bill, and therefore, to impose on our law and on the private relationships between landlord and tenant, a most ludicrous proposal which they would be the first to criticise. They would be failing in their duty if they failed to criticise it. One cannot in all honesty oppose something just for the sake of opposing it and suggest that something which would create enormous difficulties which they themselves would criticise, should be inserted in its place.
An Leas-Chathaoirleach: No. Once the House has agreed to take the amendments together, there can be only one right of reply. If the House had decided to debate the amendments separately, there would have been a right of reply on each.
Mr. O'Higgins: The Minister has been dealing with this Bill for a long time; there was some discussion on the Bill in the other House and there has been some discussion here. It is a pity, after all that, that the Minister seems to have become so stale that he has apparently forgotten what is in his own Bill. I should like now to deal with some of the points made. The Minister seemed quite indignant that his judgment on this should be questioned and he bluntly made the case that if amendment No. 1 were to be accepted it would immediately cut out the right of anyone to act on behalf of the owner. He cited as an example of that the particular case of incorporated bodies and limited companies. He asked: “How can they act?” This was the effect of what he said, that we were going to cut out in the definition of “owner” the right of any person acting on behalf of the owner. That particular illustration of the Minister's with regard to companies is utter nonsense. How does a company operate? It acts through its officers and agents. The company is a legal entity but the manner of its operation is through its officers. Even if that were not so, the Minister, in making that kind of case against amendment No. 1 obviously overlooked subsection (3) of section 1 which was inserted into this Bill, not by the efforts, so much derided by the Minister, of anyone on these benches, but by the Minister himself.
I am not seeking in this amendment to alter the wording of subsection (3). If neither of these amendments is accepted, then I will move an amendment later on which will seek to amend subsection (3), but only if these  amendments are not accepted by this House. If amendment No. 1 is accepted by this House, changing the definition of “owner”, then subsection (3) of the Bill as drafted would stand. Does the Minister realise what is in subsection (3)?
Mr. O'Higgins: If the Minister would pay attention: I have already told the Minister that, if amendment No. 1 is accepted, then subsection (3), so far as I am concerned, will remain in the Bill. I have an amendment down to subsection (3) which will be moved in the event of neither amendment No. 1 nor No. 2 being accepted, and only in that event. I did consider the point, when I was suggesting completely amending the definition of “owner”, that the extended definition, included in the Bill as it stands, goes not merely to the remote interests we have been talking about but to anyone acting on behalf of the owner of any of these estates or interests. I was conscious of the fact that the definition I suggested in amendment No. 1 cuts out all that. I was also conscious of the fact that there was no possibility of any danger whatever of an agent for the owner being precluded from acting on his behalf because of the provisions of subsection (3) of section 1. The Minister must have overlooked that when he was making—I do not wish to be rude—the particularly nonsensical point he did make.
The Minister used as one of his main arguments against these amendments the argument that, if the amendment were accepted, the Garda would be put in the position of deciding who was lawfully entitled to occupation. He thought it wrong that we should try to  impose that kind of obligation on the Garda. What obligation will the Garda have under the Bill as it stands? Whatever obligation they would have under the amendment, if it were accepted, in deciding who was lawfully entitled to occupation, they must still decide, as things stand at the moment, who is an owner under the provisions of this Bill. Surely the task being imposed on them under the definition, as suggested in the Bill, is far greater than under the simple definition suggested in either amendment No. 1 or amendment No. 2.
Under the definition suggested in the Bill, the Garda must be satisfied that the owner is a person who has any estate or interest in the land. He has got to be in a position not merely to regard the owner, as you or I would regard him, as the person lawfully entitled to occupation, but he has to take into account also the most vague remote superior interest imaginable; and, not merely that, but under the structure of the Bill as it stands at the moment, he has got to be careful that he does not put a foot wrong by excluding a person who has got the permission of a person who had a vague remote interest in the land, or a person who was acting on behalf of such a person and who gave another person permission to enter. The number of computations is endless so far as the present definition is concerned. Whatever difficulty a garda might encounter under a simplified definition, it will be an exceedingly onerous decision for the garda to take if the extended definition of owner suggested by the Minister remains.
The Minister argued at one stage with regard to amendment No. 2 that, by deleting the first words in brackets under the definition of “owner” as it stands in the Bill, “including a person who remains in occupation of land after the determination of his tenancy therein,” this amendment was limiting the position so far as an overholding tenant was concerned. When the Minister made that argument he had obviously overlooked the last few words in amendment No. 2 but the Minister spotted that before he concluded and then he argued on other lines. He also made the case that it  was unlikely, to put it mildly, that we would get a position in which a person would commit a crime against his own property. Clearly, when the Minister was speaking in that way, he was referring to ownership in the normal sense. A person obviously is unlikely, adopting the Minister's phrase, to commit a crime against property of which he is the owner in the normal sense. I should like to put it to the Minister that, if we accept his extended definition of ownership, having regard to these new crimes which are being created, it is not out of the question that an owner under the extended definition of ownership in this Bill may act in circumstances which will now be made a crime under this Bill.
I should like to tell the Minister what I have in mind: if an owner of a fairly remote head interest in property objects to the particular use to which it is intended to put that property, or if the owner of an estate or interest in a particular property in a Dublin street, objects to the demolition of that property, objects to the general facade of the street being altered, that person, remote though his interests may be, is under the Bill an owner of the property and is exempt from the provisions of this Bill. That is made quite clear in the Bill. Not merely is he exempt from the provisions of this Bill but any person who acts with his permission is also exempt.
It is agreed that one of the matters which sparked off this Bill was squatting, not merely squatting or forcible entry by organisations which the Minister would regard as subversive, but squatting in order to prevent a particular user of property which would alter the face of this city. The squatting which took place in Hume Street would be a crime if it took place after the enactment of this Bill. Supposing one of the owners of a remote superior interest in that property, or any other property which was similarly classed for development or redevelopment, objected to the fact that the property was going to be demolished, or that the face of the building was going to be altered in a way which did not conform to the pattern in the remainder of the street, that person would be  entitled, without committing a crime so far as this Bill is concerned, forcibly to enter that property and forcibly to remain in occupation of the property. Not merely would that person be immune, so far as this particular bit of legislation is concerned, but any person who obtained his permission forcibly to enter the premises or forcibly to remain in occupation of the premises also would be immune so far as this particular bit of legislation is concerned. This legislation would not have the slightest effect on that person. He would not be a criminal and anyone acting with his permission would not be a criminal, although his interest, so far as occupancy or possession of the premises is concerned, would be so remote as to be properly and completely disregarded. That is one of the exemptions the Minister's definition, which we are seeking to alter, is granting to people under this Bill.
The Minister objected to any suggestion that the Bill was assisting landlords against tenants. It is true to say that the Bill does not give landlords any rights which they had not got heretofore against tenants. But I do not think it can be contradicted that, in an oblique way, this legislation could operate very effectively to assist landlords against tenants. It could operate to assist, not the decent type of landlord who respects his tenant's interest, but the landlord who is prepared illegally and forcibly to evict his tenant and to take possession himself of the premises and to remain in forcible occupation. It could assist that kind of landlord because, if this Bill, as it stands, is enacted, the Legislature is giving clear notice that, if that kind of landlord acts in that way, he will be immune from the provisions of this Bill, while another person, acting in that way, will be regarded as a criminal, will be committing a crime and will be amenable to the disciplines enforced by this Bill. But a landlord who illegally and forcibly evicts his tenant and remains in occupation will be immune so far as this Bill is concerned. Because of that, it is not an exaggeration to say that this Bill could operate to assist landlords against tenants
Mr. O'Higgins: It has often been the favourite ploy of Ministers, and others supporting Government legislation, to taunt the Opposition with being destructive in their criticism and to ask the Opposition: “What is your alternative?” If an alternative is not provided, then the ploy is to say: “There is no alternative. We have made a proposition and there is not a single Deputy or Senator who has had the guts to provide an alternative although they criticise what we are doing.” We are providing in these amendments constructive alternatives to the definition proposed by the Minister. It may be perfectly legitimate and perfectly valid. There may be a difference of opinion as to which is the right line to travel, whether the Minister's definition or the alternative suggested in amendment No. 1 or No. 2 would be the best or, at least, which would be the least damaging. I do not cavil with the Minister because he feels there are criticisms to be made of the amendments we have proposed, but I am at least entitled to take the view, as I do take it, that either of these suggested alternatives would be infinitely better than allowing the position to remain under the definition proposed in section 1. To put it at its  lowest, either of these suggested new definitions would be less damaging than the proposals made by the Minister in the definition section of this Bill.
I have referred, because the Minister did so in the course of his remarks, to the exemptions granted by this Bill to certain classes of persons. I do not propose entering into the controversy with regard to earlier Forcible Entry Acts, but it is necessary to do what Senator Kelly did earlier, namely, refer the House at least to the potential unconstitutionality of the Bill if the ownership definition remains unaltered and is allowed to go from this House in such form that people will not be treated equally before the law. That seems to me to be the effect of it.
It is necessary also to refer the House to Article 40 of the Constitution which provides that the dwelling of every citizen is “inviolable and shall not be forcibly entered save in accordance with law”. It can be said that, if we legislate, as it is proposed we should legislate in this Bill, then we are closing our eyes to forcible entry by certain classes of people. That seems to me to call in question whether or not we would be acting in contravention of that particular paragraph of Article 40 of the Constitution which declares that the dwelling of every citizen shall not be forcibly entered save in accordance with law. We are not legislating now to allow forcible entry except in accordance with law. We are not legislating now to allow forcible entry; we are legislating to prevent forcible entry. We certainly have the blessing to that extent of that Article of the Constitution. At the same time, we are exempting from the provisions of this Bill a category which, having regard to the definition of “owner” in the Bill, can be endless. I do not think that is good enough. It is quite clear we are not going to make any impact on the Minister in regard to these amendments and I think that is a pity so far as the House is concerned.
My final word on this is in relation to amendments Nos. 10 and 13 which the Minister claimed would have the  same effect as the earlier amendments. I simply want to point out that that really is not so. Even if the Minister's definition of ownership remains in the Bill, as presumably it will, amendments Nos. 10 and 13 could be accepted. What is suggested in amendment No. 10 is an amendment to section 2, paragraph (b). Section 2 provides:
he shall do so. With regard to the enjoyment of the land or vehicle by the owner, it is suggested that the owner in that sense would be the owner entitled to occupation. That can stand on its own feet, notwithstanding the retention of the definition of “owner” in the definition section. The same exactly applies to amendment No. 13.
An Leas-Chathaoirleach: In order to allow separate decisions to be made, if necessary, on amendments Nos. 2 and 3, it is necessary to put the question on amendment No. 1 in the general form: “That the words proposed to be deleted stand.”
In page 2, line 34, to delete “owner, and ‘ownership’ shall be construed accordingly”, and to substitute “owner, as hereinbefore defined, shall be regarded as an owner; and ‘ownership’ shall be construed accordingly”.
I do not want to exasperate the Minister, or anybody on the other side of the House, but I cannot help thinking, the more I listen to this debate and, in particular, the extremely fine speech that Senator O'Higgins has just delivered, that this Bill is a succession of bottomless absurdities, the like of which, in my short experience here, I have never seen.
I will give an example of what I mean. The “owner” definition, as it stands, can be regarded as fitting a badge marked “owner” on several different categories of people. For the purposes of what I am going to say I am going to leave out questions of easements and profit a prendre. Apart from that, the following categories are entitled, once they march up and present themselves to the garda or to the courts, to have a badge affixed to them bearing the word “owner”: (1) “the lawful occupier”; he marches up,  he is presented with a badge marked “owner” and he stands to one side; (2) “every person lawfully entitled to the immediate use and enjoyment of unoccupied land”; he marches up, gets a badge marked “owner”, and stands down; (3) “any person having an estate or interest in land”—and, as has been said, there may be numerous such persons in respect of the same piece of land—all these present themselves, are given their badges and stand aside; (4) “persons who remain in occupation of land after the determination of their tenancy”—overholding tenants—if there is such a person in issue here he marches up, he is given a badge marked “owner”, pins it on to himself and stands down. I am skipping the references to easements. The last part of the definition says:
In other words, any person acting on behalf of any of the people I have enumerated is entitled to walk up, demand his badge marked “owner” and pin it on to himself. He now is an owner for the purpose of this definition and that straight away entitles him to delegate somebody else, who in his turn can march up and demand to be labelled “owner”, and in his turn can do the same thing again. Through sheer shoddy drafting, this definition makes it possible for an endless progression, an endless delegation of “owners” to take place. I know perfectly well that is not what the Minister intended or what his advisers intended.
I am sorry if I am speaking more heatedly than a mere drafting amendment might justify, but we have been as good as told that no amendments, whether substantial or formal, will be accepted. I feel entitled, therefore, to draw the attention of the House to the absurdity—a marginal absurdity compared with other absurdities in this Bill—which this form of words admits. It is possible, as I read this definition, for somebody acting on behalf of one of the categories which I have enumerated to demand to be labelled as an “owner”, and once he is labelled “owner” he himself by this  definition can delegate further people who can in turn by labelled “owners”.
Although I admit that the situation might not often arise, I have to point out the theoretical absurdities that will follow. If “A” who is what you or I would describe as an owner, who, roughly speaking, is, perhaps, a tenant in lawful occupation, delegates somebody to act on his behalf, that person may delegate somebody else totally unknown to the tenant and that progression can, as far as I can see, be infinite. This underlines what I said here the other day that a lot of the trouble and heat in this House, and I suppose in the Dáil, would be removed if there were some way whereby the Opposition could consult with the administration, not behind the back of the Minister but in his presence or in the presence of somebody nominated by him, before these Bills get on to the floor of the House.
Why we should have to waste time here debating a drafting flaw—and I am certain that it is a flaw, and even if I am wrong on that I am certain that any counsel or solicitor in the country would have a good day out on it, if it ever arose—when the whole thing could be quickly settled with no heat or contention if an opportunity were provided at an earlier stage to do so, is beyond me. If debates in this House were arranged in such a way that amendments could be considered on their merits and accepted on their merits and disposed of without the feeling, on either side, that minds were closed we would all feel very much happier about it.
The effect of my amendment—perhaps my drafting may be at fault— would be to replace the last words in the definition paragraph by the following words: “‘owner’ as hereinbefore defined, shall be regarded as an owner; and ‘ownership’ shall be construed accordingly”. In other words, the only person entitled through delegation to be regarded as an owner is somebody delegated by one of the persons previously defined in this paragraph but not by somebody who himself has been delegated. Perhaps, I have not achieved that purpose in the way  in which I have drafted the amendment, but I feel that the paragraph as it stands is open to the absurd interpretation that I have explained.
Mr. O'Higgins: I agree with Senator Kelly here but I will pause until the Minister is listening to me—perhaps what he is discussing at the moment is is of importance. In relation to what Senator Kelly said in connection with this definition, the case might be made by the Minister—as he made in dealing with some previous amendments— that the agency is necessary. When you couple subsection (3) with the wording of the definition of ownership as it now stands, Senator Kelly is entirely right in regarding this as a drafting flaw. It could not be the intention of the Minister to have an endless progression of people all of whom are entitled to be regarded, under this definition, as owners. I have no doubt that they would be entitled to be regarded as owners under the definition as it now stands, but as long as subsection (3) remains, under which people can act with the permission of the owner then, even if it was deliberate to allow this progression, it is unnecessary. I do not think it could have been deliberate because that would make the Bill a bigger farce than it is at the moment.
Mr. O'Malley: I think the net point that gives rise to the problem is whether somebody who is an owner for the purposes of the section, by virtue of the fact that he was a “person acting on behalf of the owner”, could himself delegate to some third party on the grounds that as owner he is entitled to have someone act on his behalf. Senator O'Higgins described this as an endless succession. There are two points I should like to make in regard to this matter. The first is that if that were so—I do not accept that it is so—I do not accept that Senator Kelly's amendment would prevent it or would cover the point. I cannot see the basic difference between the relevant part of the definition and the amendment. In any event, I am advised that this is not so because the use of the word “owner”, in line 34, is used in a more limited sense than the extended sense which that word would have  when the specialised meaning of the word is completed by the whole definition.
I think Senator Kelly appreciates that the word “owner”, when I refer to it there, is still within the definition. Therefore, I am advised that there is no possibility that there can be an endless chain in that way. In fact, all you can have is the owner, as defined, and someone acting on his behalf. The person acting on his behalf cannot himself create another “owner” by getting some third party to act on his respective behalf. It was not intended that you should have this sort of chain. In fact, under the relevant part of the definition it appears that you cannot have such a chain. For that reason the possibility envisaged by Senator Kelly could not arise.
Professor Kelly: We need not wrangle endlessly about this. With respect, I think the Minister is wrong. I entirely accept that his intention did not extend to the absurdity that I have outlined. I quite understand, and could not believe otherwise, that he does not intend to have an endless chain of delegation. The word “owner” in line 34 of the Bill as it stands is not restricted to the preceding classes of owner which is what my amendment seeks to do. In other words, the word “owner” in line 34 must relate to the entire paragraph. Anyone who has obtained some other kind of owner's permission, or is acting on his behalf, is placed for the purpose of the criminal law in exactly the same shoes as any other kind of owner.
The definition section draws no distinction between the owner and the person who is delegated. It is for that reason that my amendment sought by introducing the words “owner, as here-inbefore defined”—although I do not claim that it is a perfectly drafted amendment, but it seems to me that it would meet the point—to make it plain that only somebody delegated by one of the first four or five classes can be regarded as an owner, but not somebody delegated by a person who is himself a delegate.
This is an important matter. If I am right about it—I am not arrogantly  going to insist that I am right although I honestly believe I am right and I honestly believe the Minister is wrong —it throws into an even deeper confusion and into even more limitless absurdities the weaknesses which we have already exposed in the definition section. Let me illustrate what I mean. I should like to refer the Minister to section 6 of the Bill which discusses criminal and civil liability for certain damage to property. We are told in section 6 that:
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 and may have regard to whether or not the defendant has compensated the owner in respect of that damage.
Which owner is he to compensate? Is it enough if he compensates a delegated owner in terms of the definition section? Is it enough if he compensates somebody who, for the purposes of the definition section, is an owner by reason of having some interest in the property of the kind that a trustee or a superior landlord or mortgagee has? The section does not say otherwise.
Professor Kelly: It might be that somebody who was merely told to go and try to clear people out of a house and who himself did not suffer pecuniary loss, was not out of pocket and had not been physically injured, could not claim compensation. That is true. He would have no cause of action. But suppose that was not the case. Suppose somebody delegated sustained some kind of damage, either personal or otherwise. Section 6 is not specific. It just says “compensated the owner”. If somebody who is not the person principally damnified does sustain some loss and is compensated by the——
Professor Kelly: Good. Suppose the person delegated under one of the definitions in section 1 sustains damage to his property and is compensated by the person who has caused that damage, what about the person principally damnified, the person who I would call in non-technical language the owner, the tenant, the person with the beneficial interest?
Professor Kelly: Which “owner” are we talking about? I have tried to point out to the Minister and to the House that the result of the definition section is that there is a large range of people entitled——
Professor Kelly: But who is the “owner” of the house? The whole point about this, and which we do not seem to be able to drive into the Minister's mind, is that he does not distinguish between these people.
Professor Kelly: The Minister, as we have repeately pointed out, has provided us with a definition section in which there is an unlimited number of people entitled to be labelled “owner”. The definition section draws no distinction between them and does not erect any system of priority as between  them. If it did that there might be something to be said for it.
Professor Kelly: I know that is what the Minister intends. I know that is the common sense of it. I know that if the Minister had his chance over again he would make sure that this objection would not be raised. But the objection is there. What the Minister has said does not answer it. The number of people capable of being described as “owner” under this Bill has no theoretical limit. They all stand, as far as I can see, on an equal footing. No priority is constituted between them. If more than one of them suffers loss of a property type, of the type envisaged in section 6, the section does not say to which of them compensation is to be paid. I only give that as an instance of the absurdities to which the definition section will give rise.
I wish the Minister would admit that in his heart he knows this Bill is a “bags” from beginning to end and that he would far prefer to withdraw it now and bring it back to this House, which is a more peaceful house than the Dáil is, in the autumn in some other form. We would do our best with it then. In the meantime, if he wants to avail of the services of Senators FitzGerald, O'Higgins or myself, we will willingly provide them, at no public cost and without making political capital out of it. I have no hesitation in saying—I may be wrong of course but it is my honest belief—this definition section, as well as other parts of the Bill, is a disaster. It is a drafting disaster. It is a logical disaster. The Minister knows this in his heart of hearts The plain people who will have to go through the farce of getting the Garda, whom they are paying, to enforce this law, are the ones who will be paying the price for it. The Seanad divided: Tá, 26; Níl, 19.
|Brennan, John J.
Cranitch, Mícheál C.
Eachthéirn, Cáit Uí.
Honan, Dermot P.
Nash, John J.
O'Callaghan, Cornelius K.
Ó Maoláin, Tomás.
Ryan, Patrick W.
Dooge, James C.I.
Lyons, Michael D.
|McDonald, Charles B.
Mannion, John M.
O'Higgins, Michael J.
Owens, Evelyn P.
Prendergast, Mícheál A.
Robinson, Mary T.W.
Professor Kelly: I think the point is a related one. The object of amendment No. 19 is to enforce something which is quite familiar in the civil law whereas if I understand Senator Horgan's amendment its object is to exempt certain media from the application of the Bill. That is a rather different point. It would be more satisfactory if they were taken separately.
An Leas-Chathaoirleach: This is a matter for the House to decide. In relation to amendment No. 19, the only suggestion from the Chair was that it was related to the other amendment, not that it was identical.
I should be grateful for the comments of those on the other side of the House on what I have to say. In the first place I should like to explain how this form of words in the amendment was arrived at. As I have said in earlier discussions on this Bill, I am very much opposed to the whole idea of exempting classes of people from the provisions of the criminal law. Many of the attempts to amend this Bill  satisfactorily in so far as the Press, radio and television are concerned fell into the trap that they adopted as their own the very principle of exception which the Minister was writing into this Bill in this extraordinary fashion. They laid themselves open to criticism by the Minister that they were seeking to put various people and institutions above and beyond the scope of the criminal law. As we have decided already on the question of whether, at the Minister's option, certain classes of people should be above and beyond the scope of the criminal law, I tried to frame this amendment and to put it specifically in the definition section to avoid at least part of the kind of accusation which has been made by the Minister on other occasions against people who tried to safeguard the position of the Press in this matter.
Earlier today the Minister said that his whole approach to the Bill was governed by the fact that he wanted to exempt as few people as possible. I should like to think that this amendment falls in line with that, admittedly, imperfect principle, in that it is an amendment which is related to statements rather than to persons.
It is important to realise, when we look at the amendment and think of its possible effects, what these effects would be. Some of them are, unfortunately, bad but inevitable. The others are good. My reading of this amendment is that it would provide the kind of protection that we need for the organs of public opinion faced with the dangerous and difficult provisions of this Bill as a whole. I hope I am correct in thinking that one of the Minister's intentions in introducing this Bill, and it is a very inadequate vehicle for his intentions, was to curb fascist-style attempts to take over and otherwise interfere with property. The kind of situation which the Minister had in mind and which I had in mind is a mass meeting of some description where people's emotions are being inflamed by rhetoric and by demagoguery and which lead, all too easily, to a breach of the peace. It is obvious that the kind of social and political climate we have recently been living in  makes it more likely that this kind of occasion would be used by people anxious to promote fascist-type solutions to various social problems. This is the sort of situation the Minister had in mind when he organised the drafting of section 4 of the Bill to which this amendment somewhat relates.
If this amendment were accepted, people who, at public meetings of this kind in this very volatile, social and political atmosphere, made statements calculated to lead people to commit offences under sections 2 and 3 of this Bill would be liable for prosecution under the Bill. The amendment, if accepted, would exempt from prosecutions under the Bill persons making statements published in any printed form and statements made on radio and television. This amendment imports the distinction which is found in the civil law between writing, which, in the civil law as far as I know, includes both radio and television, in cases of libel and speech. This amendment attempts to use this distinction to protect the Press, radio and television from the possibly invidious operation of the Bill.
The Minister on many occasions has asked why the Press should be in any special position in this regard. As I stated in this House last week, I am not always satisfied about the role of the Press in this country. The original sin of the Press, radio and television is to be very solicitous when it comes to defending their own freedom and, unfortunately, rather less solicitous when it comes to defending other people's freedom. Yet it is true that for all their weakness, self-centredness, being hedged around by the influences which press on them, the media in general are essential to the proper functioning of any modern, democratic society. They have a particularly important role in modern societies in which power is becoming increasingly concentrated.
We witnessed during the past few years the way in which the power of Governments has tended to be withdrawn from Parliaments to Cabinets. We have witnessed the concentration of economic power and, indeed, we cannot ignore the concentration of the  power of the media themselves which are becoming increasingly difficult and expensive to run. All these forms of concentration of power and the growing complexity of modern society make it imperative that we should look at the role of the Press not just in relation to any particular piece of law but in relation to its function in the social situation.
It may well be the case that the Press may find itself in the position of acting as the only form of responsible and even authentic opposition to an increasingly centralised and perhaps even dictatorial Government. The role of the Press in pre-Gomulka Poland was an example. At the elections which brought Mr. Gomulka into power the editor of one of the leading newspapers in that country, which had opposed the Stalinist government at the time, received more votes than any of the popular candidates in that election. There are many other things to which one could point to show that the role of the Press has never been that of a mere recorder of facts. It has always been inserted in the structure of society that it behoves a government if they are really interested in democracy and in the promotion of a vital and adequate public opinion not only to protect the Press against any encroachment from outside but even to give it in some respects a slightly privileged position. I would go so far as to say that in our highly technological and complex society any democratic government who deserve the name will eventually have to find themselves sub-sidising dissent by showing in their attitude, specially to the media, that they believe dissent to be an important part of the decision-forming process.
The final and perhaps the main reason why I am advocating here a special role for the Press in relation to this Bill is that the newspapers which were the principal instruments of the media were one of the important parts of the foundation on which this State was laid. I was reading the other day Dorothy Macardle's book The Irish Republic and took the trouble to count the number of periodicals mentioned by her in the period leading up to and including  the war of independence. There were no fewer than 29 of them. These were the mosquito press of the day, the antigovernment papers of the day, the papers which provided a mental and psychological lifeline for the people who were fighting against injustice and these papers were continually subjected to harsh action by the authorities of the day. Miss Macardle says at page 130 of her book:
I am not suggesting that this Bill is tantamount in the present situation to the Defence of the Realm Act as it was then. What I am saying is that this Bill, if not amended, could all too easily assume the proportions of a piece of legislation like this, especially when it is realised that law, like politics, is very often just war by other means particularly when it is realised the extent to which politics can and do figure in the law of a country. It is not so long ago since President de Valera unveiled a plaque to Seán Mac Dhiarmada and to the two newspapers Irish Nationality and Irish Freedom which he founded and ran. It would be true to say that during the War of Independence, and indeed afterwards, the President's relationship with the media was a very positive one.
Miss Macardle states again at page 465 of her book that he had occasion more than once to put his safety in the hands of reporters of newspapers and “not once did he find this confidence misplaced”. I find it very strange that people who pride themselves on being the political successors of those men should be introducing this kind of legislation which could be used in a most Draconian fashion and in such a way as to make it possible for an Irish Government to adopt the same attitude towards dissent as the British Government did at that time. I am not, for obvious reasons, comparing the situation then and now and saying they are identical. Of course they are  not. But anybody who fails to read the writing on the wall, as shown in this Bill, and fails to read the lessons of history is being, in my opinion at least, less than fair to history.
Ruairí Brugha: I have a great deal of sympathy with Senator Horgan's views and I agree with him entirely. He seems to be under the impression that the Press is under attack and needs to be defended. He has given some very interesting references as to how the Press performed a very essential function in the earlier years of this century as indeed it did.
Speaking on the same question on Committee Stage I said my view was that there seemed to be a complete misunderstanding of the wording of section 4 which was being interpreted in such a way that nobody could comment or report on any action or words used. I know that in dealing with this amendment we are dealing with definitions and therefore it would not be proper for me to refer to section 4 except indirectly.
Senator Horgan suggested that people might make statements at meetings and if they were published it could be an offence. He also referred to the need to provide freedom for the organs of public opinion. I cannot see anywhere in this Bill where that freedom, in which all of us believe, can be infringed by even a Minister who wanted to infringe upon it. The present Minister certainly does not.
Senator Horgan commented on what could be described as the weaknesses of the Press. Perhaps it is no harm to comment on them but in doing so one needs to emphasise that the Press is free to do a lot of things that all sorts of people do not like to see them doing but nobody is going to stop them from committing minor indiscretions. For instance, we get quite a lot of what many people regard as a sort of selectivity in the publication of news but it is done discreetly. We get a considerable amount of taking out of context in the headlining of minor pieces of information in such a way as to mislead one as to what is and is not important. I will give one illustration  which comes to mind. A few weeks ago I read a headline in one of our national papers which said that 2,000 priests defect annually because of the regulation in connection with celibacy. Knowing that there are only something between 6,000 and 7,000 priests in the whole of Ireland this sounded rather startling until one read the finer print and found that 2,000 priests represented considerably less than half of one per cent of the number of priests in the world. This is not a surprising situation. I do not suppose there is any vocation in the world in which more than 99½ per cent of the people are quite happy to be doing what they are doing. I know of very many people who would rather be doing anything else than what they find they have to do in order to earn a living. That is merely an example of how one can convey an impression which is misleading.
Ruairí Brugha: Before we adjourned I was referring to misleading statements. The Press is free to transgress in selectivity of news reporting and, of course, to mislead. It should, however, have regard for its responsibility to the community. In that respect I should like to refer again to the European Convention Rights Declaration of December, 1969, in which it says:
It is the duty of the Press and other mass media to discharge their function with a sense of responsibility towards the community and towards the individual citizen. For this purpose it is desirable to institute where this has not already been done:
(2) a professional code of ethics for journalists. This should cover, inter alia, such matters as accurate and well-balanced reporting, rectification of inaccurate information, avoidance of calumny, respect for privacy, respect for the right of a fair trial  as guaranteed by Article 6 of the European Convention of Human Rights;
This amendment arises from anxiety on the part of Senator Horgan and others and I think that the anxiety which they manifest is an example of the way in which people can be or may be misled. Most of us received a letter from the National Union of Journalists in which the following appeared:
for anybody found guilty of charges which could arise from the investigation, reporting, photographing, commenting on, or otherwise editorially dealing with, for publication or broadcast, specified activities, in a hitherto legitimate manner.
To me that is a completely misleading interpretation of this Bill. I acknowledged the letter and said that I would keep an eye on that side of it when the Bill was going through the Seanad. I then read a copy of the Bill to see what exactly was being referred to. I could not find any reference in the Bill to what the journalists were referring to. Yet, following that, we had a large number of leading articles in many newspapers. A small section of one I should like to quote:
If this Bill is pushed through the Dáil, as the Government majority ensures it will, despite the unanimous opposition of the Fine Gael and Labour Parties, it will be illegal for a newspaper to report the holding of a protest about a matter which is regarded as being outside the law. That protest cannot be referred to before it has taken place or reported on after it has been held.
Ruairí Brugha: It is a leading article in The Kerryman of 24th July, 1971. This, again, is an example of  people misleading themselves. Senator Horgan, when he was speaking, said that he was against the exempting of any classes. I agree with him, but the amendment is intended to exempt newspapers, radio and television. I do not think that either the Press or the radio or television are claiming the right to encourage—the next word will be “incite”—offences such as the taking over of other people's or local authority property I do not see any need for the amendment because there is no reference in the Bill to any prohibition on comment or on reporting. We are a free society and the Press is free to act responsibly or irresponsibly, as it chooses, in regard to the manner in which it reports on activities.
Recently, I had a young visitor in my home who first discussed the Forcible Entry Bill and subsequently discussed pop festivals. I have never been at a pop festival myself but he commented that he attended them and that most of them are very well run. However, he said if the slightest thing goes wrong at a pop festival you will find it headlined in the newspapers the following day. He regarded such reporting as being unfair. That is just another example of the type of complaint one hears about the Press but, as I have already said, the Press is free to comment on matters and to headline matters in whatever way it chooses. There is no need for this amendment although the discussion on it is useful in order to draw attention to the fact that the Press is completely free to report whatever it thinks fit.
Mrs. Robinson: I understand the amendment we are discussing is being taken with amendment No. 18 which attempts to amend section 4 by providing that: “The word ‘group’ in this section shall not be construed to include the Press, radio or television.” Although I reluctantly drafted one amendment and supported the other amendment put forward by Senator Horgan I will explain both my reluctance and the necessity, in my view, for these amendments. The reason why I did not define the word “group” in the definition section but rather in section 4 is that it is not really a definition of “group.” It just  makes it clear that the word “group” will not include the organs of Press, radio and television. My reason for doing so is that in section 4, there is no attempt to outline what is meant by the word “group”. Section 4 (2) reads:
Where a statement in contravention of subsection (1) of this section is made by or on behalf of a group of persons, every person who is a member of the group and who consented to the making of the Statement shall be guilty of an offence under that subsection.
Subsection (3) goes further in stating that even if the person is so associated with the group he could be found guilty unless he satisfies the court that he can give an adequate explanation, so that his consent will not be presumed. My great problem is that that gives rise to a legitimate fear on the part of the Press. I take issue with much of what Senator Brugha said when he quoted from articles in various newspapers. It is not necessary that the writers of articles or the editors who have expressed concern are right. The point is that the wording here is so general that they have very good cause to be worried. My reason for bringing in this amendment is to remove that worry. There are two factors in relation to expression of that sort in the Press, or radio or on television. There is the fact that an editor, or a writer of an article, or a broadcaster or the maker of a statement, may risk prosecution. Even worse still, there is the blanket effect of a censorship in that it may prevent freedom of expression on the grounds of the fear of a possible prosecution.
One of the points I wish to make in moving this amendment comes up under amendment No. 15 so I will not dwell on it at any great length now. It shows the extraordinary wording of section 4: “Where a statement in contravention of subsection (1) of this section is made by or on behalf of a group of persons.” In my view a statement in contravention of subsection (1) means a statement which provides the negation of subsection (1). A  statement providing the negation of subsection (1) would say “a person who encourages or advocates the commission of an offence under subsections (2) or (3) of this Act shall be guilty of an offence”. The wording just does not hold together.
I am not going to pursue this point because I know that Senator Kelly raised this on Committee Stage and that he has an amendment down which I shall support very strongly. However, it shows the extent to which we are making the “consent to a statement” the basis for guilt and that we are not defining the meaning of the word “group”, unless the amendment which I have put forward is accepted, so that membership of a group which consents to the making of a statement would leave a person open to the possibility of a prosecution for a criminal offence for which the penalty could be as heavy as three years imprisonment. In making that statement I should like to re-christen this Bill “The Farcical Entry Bill” not the Forcible Entry Bill. It is a farcical Bill in which by debating it we are finding more and more loopholes and illogicalities.
In deciding to define the word “group” by excluding the organs of Press, radio and television, I was encouraged by finding an attempt in the Offences Against the State Act, 1939, to define the word “organisation”. In section 2 of that Act the word “organisation” includes:
That is not a very helpful attempt at a definition. It is a definition which includes, but I would like to have a definition, in section 4, which excludes, so that the word “group” cannot be construed, as has been done by editors, writers and persons involved in Press and television and by the Dublin Branch of the National Union of Journalists, as including newspapers, radio and television. The reason why I would reluctantly come to the point of trying to exempt them is that I feel that under the Constitution they are  guaranteed a freedom which is greater than that under section 4.
I should like to emphasise the reluctance with which both Senator Horgan and myself bring in amendments which try to grant exemptions to the provisions of a criminal Bill. We do so in the face of the refusal of the Minister to modify the Bill. He has said—and I welcome this statement, as I am sure other Senators do—that he will change the wording of subsection (1) from “encourages and advocates” to “incites”. I welcome the fact that he will even though I dispute his reasoning when he says that the words are the same. I do not agree at all. The word “incite” has a much more definite meaning and has a much more precise mens rea.
I shall have to discuss, very briefly, the mens rea of “incitement” in order to show what sort of mens rea will be attached to a group and why it is necessary specifically to exclude the organs of Press, radio and television from this. The mens rea of “incitement” has been dealt with at some length by the criminal courts and is discussed in one of the leading criminal textbooks. Smith and Hogan's Textbook on Criminal Law, second edition, page 149, states:
As in the case of counselling and abetting, it must be proved that D knew of (or deliberately closed his eyes to) all the circumstances which render the act incited the crime in question. To constitute an incitement there must, however, be, in addition, an element of persuasion, which is not necessary in the case of counselling or abetting.
Among the circumstances is the mens rea of the person incited. If D believes that the person does not have mens rea for the crime in question, then he intends to commit that crime through an innocent agent, but he is not guilty of incitement.
In Regina v. Curr, 1967, the defendant was acquitted of inciting women to commit offences under the Family Allowances Act, 1945, because it was not proved that the women had the guilty knowledge necessary to constitute that offence. The real question,  it is submitted, should have been not whether the women actually had the knowledge but whether the defendant believed they had. In that event he should have been guilty. But if he believed that they did not have the guilty knowledge he was not guilty of incitement whether they had it or not. In other words, to convict, to have the essence of the mens rea of incitement and I assume that we cannot speak about incitement——
Mrs. Robinson: I am about to relate it genuinely. If it is accepted then that the mens rea of incitement involves persuasion and involves the circumstances of the mens rea of the person going to commit the offence, then a member of a group must have that mens rea or else we are creating an utterly new offence, the offence being the mens rea of consenting to the making of a statement. I cannot see how any civilised society would agree that it was a fair penalty to consent to the making of a statement and risk three years imprisonment. This is incredible.
I have again checked in the Offences Against the State Act, 1939, which I consider to go about as far as any society might be prepared to go in the protection of the State, and I find that neither in the offence of the usurpation of the functions of Government nor in the offence of obstruction of Government nor any of the other serious offences under the Offences Against the State Act, is there this guilt by consent to a statement which is what is envisaged in section 4.
The problem is wider than these amendments, obviously. We have tried to have subsections (2) and (3) removed. We have failed to do so. What we are doing—and what we have to admit we are doing—is trying to exempt certain persons from this possibility of a prosecution for consent to  a statement made by or on behalf of a group. I would prefer to see it done by narrowing the meaning of “group”. “Group” would be a very difficult term to define except in the rather meaningless terms in which “organisation” was defined in the Offences Against the State Act. I would prefer to limit it by exclusion rather than define it by trying to set out all the cases it would include. I think it is fair to exclude the organs of Press, radio and television because they are our organs of public opinion. As I said on Committee Stage on section 4, our liberty depends on the freedom to express, to argue and to counterargue, and to speak against false doctrines if false doctrines are spoken, not to bring in repressive legislation and put in jail those who speak contrary to what the majority of citizens or even a certain number of citizens might feel.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
These, then, are the limits on freedom  of expression. Unless the Minister is arguing—and I think it is a possible argument—that the incitement of an offence under subsections (2) and (3) of this section would “undermine public order or morality or the authority of the State”, then he is not constitutionally entitled to curtail freedom of expression. My own view on it is that, because of the very general wording at the moment, this goes beyond the undermining of public order and morality or the authority of the State. We are not in a situation in which there is a State-wide treason, sedition or an attempt to undermine the authority of the State. If there is this element, it certainly is not being made very clear.
The Minister agreed on Second Reading of the Bill in the Dáil that the problem had diminished a good deal since the original drafting of the Bill. There is an argument for exemption here which is nothing like as acceptable to me certainly as the entire deletion of subsections (2) and (3) of section 4 would be, but it is a plausible argument. It is a good second best. It would have the effect of assuring the organs of Press, radio and television that they do not have to fear the possibility of a prosecution with the risk of punishment of up to three years imprisonment if it was a prosecution on indictment. This is important in order to encourage freedom of expression. I do not hold any brief for the total monopoly of wisdom of the newspapers in this country. They compare reasonably favourably with newspapers in other countries but they are not certainly organs of wisdom and total rightness. Nevertheless, I believe not only in their right to express views but even in their right to be wrong in certain circumstances—and I think it is as bad if they fear that a curb is being put on their freedom of expression as if it were legally so.
That is my argument. If they honestly believe it is so, the effect is as bad as if it is genuinely legally so. The Minister, if he accepted this amendment, would go a long way towards reassuring the organs of public opinion and he would not undermine the teeth of the Bill which he has said is directed  against subversive groups. On that point, the Minister has said that this Bill is not directed against squatting but at subversive groups. If he is going to repeal all the other Forcible Entry Bills and have this as the only statute of forcible entry, then it deals with all forcible entry whether squatting or organised groups encouraging squatting or whatever the particular problem may be, and if in his pursuit of the subversive groups he is so enthusiastic that he overlooks the effect it may have on the isolated cases of squatting, this would be very regrettable. There is a great danger of this both in the definition of ownership that we discussed and in the provisions of section 4.
I support the amendment put forward by Senator Horgan but if called upon to choose, I would prefer the definition of “group”. We are both trying to achieve the same object which is to reassure the organs of public opinion that they are not being censored in advance and that they are not risking the possibility of prosecution under this Bill. We will probably come back to this whole subject very forcibly when we are discussing amendment No. 15 which shows that unless there is a drafting amendment to this then it really is—as I said at the beginning—the “Farcical” Entry Bill.
Mr. Honan: When I read these amendments, this was the amendment that attracted my attention more than any other one. What we are asked to do here is to give a right to the Press, radio and television which I doubt very much if any other citizen in the country would be likely to have.
If any of the groups mentioned here were to conduct a libellous campaign, would they be excluded from the law by this? We in the Houses of the Oireachtas have considerable privileges in this field. I am not quite certain but I think if one perpetrates a libel or something akin to libel against a particular person, whether he is inside or outside the Houses of the Oireachtas, there is certain machinery that can be put into effect here. You are at least responsible to somebody. I could not see myself agreeing to a  suggestion that the Press, radio and television should be put above the law.
I am a member of a number of local authorities and it was once believed that in a local authority you have the same immunity from the law as you have in the Houses of the Oireachtas. This belief proved to be wrong on a few occasions. You are liable there to the law of libel and if you do an injury to somebody or provoke somebody to do something, you are liable. Therefore, I cannot see why the Fourth Estate—I do not know to which estate television and radio belong —should be set up on a pedestal to libel, to traduce, to incite, to encourage or advocate. As I understand the Press, television or radio, I believe that they should be people who report accurately and they should not colour their reports in any way. I notice that if anybody makes a statement in the Seanad, in the Dáil, in a county council or an urban council, and if an editor sees anything relating to such statement going through that might be libellous, he will consult his law adviser about it before publishing it.
Mr. Honan: I am against exemptions when certain people are to be given rights of expression that are not available to other people. If I made a statement at a county council meeting in which I damaged a person's character or property, I have no doubt that I should possibly end up in the Supreme Court. The Press, radio and television media embrace professional people and their duty is to report things factually, without colouring them, or without adding to or subtracting from them. If this was put into any Bill, instead of being the Fourth Estate, they would probably end up by being the tenth estate and we should never catch up on them at all. I understand what was in the minds of those who tabled this amendment, but you cannot have a situation in which you isolate one group and give them rights far beyond the rights of anybody else. I cannot publish in a newspaper anything that I wish to say  and if I could I should possibly be putting in all kinds of news. I have experience of the type of reporting that goes on at public meetings, whether they be county councils or urban councils, and when I read the report in the newspapers I often wonder if I was present at those meetings at all.
My common sense tells me that you could not write into an Act a provision that gives exemption to these three groups, thus giving them precedence over Members of the Oireachtas in the matter of expressing opinions. Members of the Oireachtas can be brought before the Committee on Procedure and Privileges, but before whom could you bring members of the Press, television and radio, because you have written into an Act that they have a prior right to say what they like?
Dr. West: I should like to say a few words in support of this amendment. However, I assure Senator Honan that I certainly would not support it if by so doing I was helping to put a loophole into the law of libel. I would certainly not support any move by which, if the Press published a statement which was libellous about me, I could not have the normal recourse to legal procedures and deal with it in the usual way. I do not think that we are doing this. I agree with Senator Robinson that it is unfortunate to have to exempt a particular group or groups from a specific provision in any Bill. I can see the necessity for doing so in this particular case.
I am sure that there is not a politician anywhere who has not had hard feelings about the Press or the broadcasting media. The converse is true: the news media obviously have hard feelings about politicians and are not afraid to express this fact. I fear that we cannot ever achieve a raising of standards by legislation. The news media have a great responsibility for the standards in political life by their quality of commentary, by their objectivity or selectivity. There is no such thing as objective reporting. Everybody knows that a report is written by  an individual; it is bound to be subjective in some sense, subconsciously or consciously. There is no such thing as subjective reporting, but the Press has a responsibility which is a responsibility to a nation as a whole. The Press can help very concretely to raise or depress the standards of our political life. In this country perhaps we get the politicians we deserve and, similarly, we get the pressman and the Press coverage that we deserve. Both politicians and pressmen can combine to work for raising standards in both sections.
I feel very strongly that we as legislators cannot achieve a raising in standards by any piece of legislation. When legislation is specifically directed against the Press—it happens only in totalitarian regimes and, thank goodness, we do not have these in this part of the world—we cannot help to maintain standards or improve them by enacting legislation which restricts the freedom of the Press. This freedom is tremendously important and I feel that an amendment of this type is worthy of support not because the present Minister is suddenly going to take into his head to put the newspapers out of business. There has been much comment in the media and in the Oireachtas of an irrational nature on this but, as has been said on many occasions in connection with this Bill, one of the things that we on this side of the House are most worried about is the fact that another administration, which may not have a very benevolent view of the media, may seize on the rather loose provisions which this Bill gives them and may interpret the section we are dealing with in a completely arbitrary way and because the section is so worded there is a good deal of rope for doing such a thing and they may, therefore, use this particular piece of legislation to act in a very repressive and arbitrary manner against the media.
For that reason I should like to support amendment No. 18 in the names of Senator Robinson and Senator Horgan. I feel that as the section is worded the legislation before us is open to unusual interpretations. This amendment, although it is not  satisfactory in that nobody likes to write in exemptions of this type, would create a better situation than would be created by the section as it stands.
I reiterate that we will never be able to improve media standards by legislation. We can improve their standards by encouragement just as they can improve ours and I should like to support this amendment.
Mr. Nash: This Bill creates a crime which it has been found necessary to create in order to protect public order and morality and the common decencies of life. Its object is to prevent people, by the exercise of force, fear, by weight of numbers or otherwise, forcibly taking possession of a building or of lands or of other property to which they have no right whatsoever and to the occupation of which someone else is entitled. I do not think anybody present will disapprove that principle and if such rights are being interfered with and if people are being deprived of such rights, by force, by fear, by threats, by numbers, they should be protected. It is the duty of the State to protect them.
Having agreed upon that, the next point that follows, as a natural corollary, is that anyone who advocates, encourages or incites these people to do these things, to commit this type of heinous crime, is guilty of an offence. They would be guilty of such an offence if it were never written into this statute. It is written into this statute to put the matter clearly to the type of people who commit this offence so that they will have no justification for saying that they were ignorant of the law, they will have no justification for saying that they had no funds to employ a lawyer to advise them, they will have no justification for saying that while all men may be equal before the law——
It is, therefore, clear, and nobody can reasonably disagree with it, that anyone who incites or encourages  people to commit these offences is guilty of an offence. Very often the people who incite and encourage are the real criminals. The receiver of stolen goods is a greater criminal and a more despicable criminal than the person who steals the goods. The person who encourages others to commit a crime which, perhaps, he has not the courage to commit, or because he is too fond of his own skin, is a worse criminal than the person who commits the crime. The person who does the encouraging, who takes young people and trades on their generosity and their impulsiveness is a greater criminal than those youths who act through the impulsiveness of generosity and the impulsiveness of youth.
The effect of the amendments which we are now discussing is to make an exception of this. What it really means is this. No one can encourage others to commit a crime of this nature other than the Press, the radio and the television.
Mr. Nash: That is the construction of this amendment despite the interruption of Senator Robinson. It still remains the only construction. Can anybody in their sane senses say that that is a practical or a sensible application of our criminal law? If it applies to our criminal law, why does it not apply to our civil law? Why not say, as regards slander and libel: “All right, no one can slander you, no one can libel you, except the Press, the radio and the television”?
Mr. Nash: This privilege may be abused but let me follow my argument. We might as well say that as regards the civil law anyone is liable in damages for slandering a person, defaming him, libelling him other than the Press, the radio and the television. Is there any reason why such should be our civil law? Would it be fair if that were our civil law? The common law, which is the distilled wisdom of centuries, has imposed a special obligation where you have libel over and above slander, because more damage can be done by libel, ten times more, hundreds of times more than can be done by slander. Therefore, under the common law, if a person slanders another, except in very special circumstances, that other may not recover damages unless he can prove a special loss. But in the case of libel he does not have to prove any special loss, the reason being that the common law, which is the distilled wisdom of centuries, realises that the mere fact of publishing in a newspaper, in print, something that will stay there, not for the moment, not for today, not for tomorrow, but which will still be in print next year or the year after can do infinitely more damage.
The same thing applies to the criminal law. We will agree that there should be no exception regarding the civil law. If we are going to make an exception of this why should there not be an exception in the civil law? Senator Horgan said that somebody can stand up at a meeting, make a most emotive speech which will rouse young people's feelings, cause them to do something rash or unwise or perhaps criminal, and that should be prevented. But it should not be prevented if a person on the radio does likewise. A person writing in the Press can do more damage with his pen than the other man can with his tongue; he may be a better writer than the other man is a speaker but if he does it on paper it should not be a crime.
If one of these organisation have a  pirate radio station they are not liable, according to this amendment. If one of them stands up on a platform and incites people to crime he is liable. They can spread it over the whole nation with pirate radio stations and they are not liable.
This amendment would produce a similar type of situation to that which you would have if you made it a crime for a man to have a pea-shooter or an air pistol but no crime to give him a machine gun. That is the exact analogy to what is suggested by this amendment, To say that the Press have to be reassured is utter nonsense. The Press know their rights. They also know their obligations. I must say they do comply with their obligations just as all other citizens do. They are a reasonable cross-section of the people who discharge their professional obligations with that same spirit of dedication and integrity that we all, in our own humble ways, endeavour to apply in our own professions. They are no better and no worse than the rest of us. There is no reason why they should need reassurance, any more than anybody else does. Any person knows that if he incites another to commit a crime he has got to take the consequences of his act. The Press can publish factually everything that happens. They also can publish their own views if they like. They are quite entitled to their views. They are quite entitled to express their comments, be they as subjective as they like, but they are not entitled to incite any person to commit a crime, whether it is this crime that is made a crime under this Bill or larceny, perjury, robbery or any other. They do not have to be reassured in that respect.
It is a popular thing to speak out on this and stand up for the freedom of the Press. There is nobody denying the freedom of the Press. But those people who would discriminate in a matter of this nature and put the Press in a position over and above the ordinary citizens of this State are denying the rights and liberties of those citizens.
These are the governing words, the right of the citizens to express freely their convictions and opinions. That applies to me, to you, a Chathaoirleach, to each one of us in this House and to each citizens of this State, as well as to the Press. It does not say the rights of the citizens to express freely their convictions and opinions but also the right of the radio, Press and television to express their opinions and views even though they may offend public order and morality. There is no such provision in the Constitution. Why should there be? Senator Robinson in quoting that Article of the Constitution has expressed what, in my view, is one of the strongest arguments against this amendment. There is nothing in any section of this Bill which refers to the Press as such. There is something in it which refers to the citizens of the State as such. No citizen of this State is entitled to incite another to commit a crime.
Mr. J. Fitzgerald: I rise to support the amendment not because I wish to put the Press on a pedestal or above the law but because, in common with the Senators who have put down the amendment, I think there is a lot to be said for the freedom of the Press. The Press, radio and television have been mentioned here. As far as one can gather it would appear as if a number of speakers are more concerned with what the Press, whether national or provincial, may do in the circumstances of this Bill than they are with how the law can catch up with the Imported Press coming into this country day after day, Sunday after Sunday. How do we propose to get at the editors or at the reporters of those papers, if they encourage or incite? How do we propose to get at the BBC, UTV or Welsh television that is received in thousands of homes in this country? Are they to be exempt by reason of their inaccessibility from the penalties of this Bill?
I agree with Senator Robinson when  she states that the Press in this country has enjoyed freedom down the years to express its opinions. They had not to be looking over their shoulders to ensure that everything that passed through the editor had first passed through their legal adviser. The same will apply to the reporter.
This is a very dangerous piece of legislation. The Minister or the present Seanad may not be here in 12 months time. I would not be surprised if we were not. We certainly will not be here in ten years, but this piece of legislation will be on the Statute Book. We might not have a Minister for Justice as lenient as Deputy O'Malley although very few would agree with that viewpoint, particularly from this side. We might have somebody more ruthless who would ensure that the piece of legislation given to him by Deputy O'Malley would be used against the Press and the other media to deprive them of freedom of expression. For that reason I would support the amendment in spite of the case made against it by Senator Nash because I believe he went very far afield to make the case and justify the Minister in not accepting the amendment.
Mícheál Cranitch: Is main liom cúpla focal a rá mar gheall ar leasú a 4. Luaigh an Seanadóir Nash an chuid is mó de na pointí a bhí i gceist agam agus, ar an ábhar sin, ní bheidh ach cúpla pointe le lua agam féin.
When I opened the envelope this morning and saw the list of amendments, I had to read amendment No. 4 quite a number of times before I actually believed that such an amendment would be tabled. It states:
This Bill is an excellent piece of what I would call protective legislation even though for some reason or other it has been described by a number of Senators and others as repressive legislation. To my mind, and this view is shared by the vast majority of the citizens of this State, it is a piece of sound protective legislation.
 First of all, it protects our homes from forcible entry and forcible occupation. It must follow from that that anybody who incites others to forcibly enter or occupy a premises or a home not belonging to himself must be guilty of an offence. It is stated quite clearly and plainly in section 4: “A person who encourages or advocates the commission of an offence under section 2 or 3 of this Act shall be guilty of an offence”.
This amendment essentially means that if accepted we will create a privileged class, the Press, radio and television, who will have a licence to advocate and encourage the commission of an offence. That is an extraordinary power to give to any group. If we advert to that point in its naked simplicity, we cannot consider the acceptance of this amendment for one moment. I think that the Press, radio and television authorities would be most reluctant and would not even consider asking for such a licence. It is not the liberty of the Press or television authorities which is at stake. It is giving a licence to people to advocate and encourage the commission of an offence. I do not think that under any circumstances this amendment could be considered favourably by any Senator.
A false analogy was drawn earlier by some Senator when he was dealing with the Press between what was euphemistically called “the time of the Troubles” and the present day. I am sure he will be first to admit that the principal newspapers of the time took a directly opposite view to the smaller provincial newspapers quoted by the Senator when he was referring to extracts from Dorothy Macardle's book The Irish Republic.
At the present we are inclined to refer to the Press as organs of public opinion. They are not organs of public opinion. Public opinion quite frequently runs contrary to the opinions expressed in those newspapers and that has been shown time and time again. The opinions given in the newspapers are the opinions of a small number of gentlemen, the majority of whom are sincere in their views and quite honest  about them. But, as I pointed out when I was speaking on Committee Stage, many of those people regard themselves as having an authority and wisdom which they actually have not got. I compared some of them to the philosopher Kings of Plato. They are presumed to have an extraordinary amount of knowledge and wisdom but I can assure you that in the opinion of the public of this country they have very little such knowledge or wisdom. I hope there will be an overwhelming rejection of amendment No. 4 which has nothing to commend it and which is trying to give extraordinary powers such as licence to advocate the commission of an offence.
Mr. O'Malley: I was prepared to reply to the points made by the Opposition Senators on this amendment but I scarcely think it is necessary for me to intervene because the five speeches from this side of the House more than adequately do so. Anything I might say would hardly add to the overwhelming case they have made for the rejection of this amendment—in fact, it might take away from it.
I do not seriously see how any Senator from whatever side of the House could support the amendment. It is probably one of the most outrageous amendments that could be proposed because, as Senators Nash, Cranitch, Honan, Brugha and others have pointed out, very clearly it seeks to give an exemption from a very important part of the criminal law to a very small but, nonetheless, important part of the community, the part which has the loudest voice. It is not necessarily the truest voice but because it has the loudest voice its words are heard more widely than that of any other group of the community.
It seems to me quite outrageous to seek, as this amendment does, to allow people in the Press, or people appearing on television or radio to incite or encourage or advocate crime while ordinary citizens are expected to observe the law. This amendment is the same, in effect, as an amendment which we had on Report Stage in the Dáil. I thought that I had adequately pointed out not just the ludicrousness  of the proposal but the outrageousness of it. I did not expect to see it renewed in this House but it has been. I do not think it needs any great argument from me to refute it, but, once again, in order to keep the record right I want to make it clear that at the moment Press, radio and television are subject to the law of incitement with regard to crime. I cannot see any conceivable reason why they should be exempted from the crime or offence of incitement to commit crimes, under this Bill and, at the same time, remain subject to the law which prohibits incitement to commit any other type of crime.
There is an enormous number of crimes under our law. The law has always been, and is now, that to incite the commission of any of those indictable crimes is itself an offence. The Press, radio and television have always been subject to that law as they are now. The variety of crimes must be truly enormous but I have never heard them complain that this law had interfered with them in any way. Considerable sections of the Press every day carry reports about crimes of one kind or another. I do not recall, certainly in recent years at any rate, any newspapers being prosecuted for incitement to commit any of the hundreds of crimes they report from time to time. I do not see why the position is different with regard to this. I do not see why an exemption should be allowed to newspapers, radio and television to incite people to commit crimes under this Bill. If the proposers of this amendment and its supporters are logical, surely if the Press are allowed to incite people to commit crimes under the Bill, equally they should advocate that they be allowed to incite people to commit other crimes.
Senator Nash made the point that these were criminal offences and that the proposers of this amendment were seeking to give an exemption which would allow the Press, radio and television to incite or encourage people to commit these crimes. He made the point that the laws of libel and slander are laws to which the Press are subject but he thought it would be outrageous if anyone suggested that the  newspapers and television should become free from the laws of libel and slander.
I think that is a very good example, but the Senator could quite legitimately have brought it a good deal further by pointing out that libel and slander—or defamation as they are called together—are not crimes. They are serious matters, but they are not crimes. They are simply torts, they are civil wrongs against an individual person or small group of people. Surely the Press or the proposers and supporters of this amendment do not advocate that the Press should be allowed to commit libel at will or to be exempt from the law of defamation? I assume that that is so, and if it is so, surely it is all the more so if the very much more serious matter such as crime should be exempted.
It is unthinkable that the Press should be exempt from libel and slander and it is unthinkable that they should be exempt from civil torts like that. It is a hundred times more unthinkable that they should be exempt from their liability not to encourage crime, which is a liability that is simply the same as that of any other citizen in this country. This amendment——
Mr. O'Malley: I am talking about amendment No. 4 at the moment. The basic effect of the two amendments is much the same. Amendment No. 4 would appear to have the effect of suggesting that it should be lawful for the Press, radio or television to advocate crime, that their freedom of expression under Article 40, section (6) of the Constitution should be read in such a way that the encouragement of crime by the Press would not be, or could not be, regarded as undermining public order and morality. While Senator Robinson did not say so in so many words, she seemed at least to imply—and imply quite clearly—that the incitement of offences under sections 2 and 3 of this Bill by the Press would not, in fact, undermine public order.
Mr. O'Malley: I accept that the Senator did not intend to imply it. At the same time, if Senator Robinson makes the case that the Press is to be allowed to incite the commission of crimes under sections 2 and 3 by exempting them from the provisions of section 4, she must, by implication, therefore, accept that the encouragement or the incitement of those crimes does not undermine public order. Quite clearly, if she felt it did she could not suggest that the amendment could stand up constitutionally since there is a specific prohibition in the Constitution about undermining public order. Since I think that this can fairly be implied from what she says, it seems to me an extraordinary attitude on the part of a Member of the Oireachtas that she should, in effect, be advocating this sort of thing.
I wonder if members of the Press themselves as individuals want this exemption from the ordinary criminal obligations or liabilities of a citizen in this country? I rather think they do not. I should be horrified to think they did. I should be extremely worried to think they wanted a situation created for them whereby they were not subject to the ordinary law. I sincerely hope that that is not so because if it is not so I find it difficult to understand the mentality of those who put down and support amendments of this kind. If the Press do not want this exemption from the ordinary law of the land, I think that the people who put down and support amendments of this kind leave themselves open to the charge that they are simply playing up to the Press and that they hope that this effort will pay dividends in some way or other. I am afraid that they leave themselves open to that because the alternative would appear to be that the Press are anxious to get an exemption to give them a licence to encourage the commission of crime. Any point that could arise out of this amendment has been fully covered by the five Senators on this side who have spoken so ably on it.
In conclusion, I want to repeat once  again—simply for the record—that this Bill is not aimed at the Press. When the Bill becomes law, the Press will be in exactly the same position in relation to the question of incitement, the question of crime and the question of comment, and they will be bound to the same extent—no more or no less—by this Bill as they are by the existing law on incitement. The freedom of the Press will not be restricted to any greater extent than it is at the present time. Although the contrary was argued at an earlier stage in this debate—not so much in this House as the other House—I think it is now accepted that this is so. It has been accepted not before time. I would hope to see private acceptance that this is so, in all graciousness and in all honour, being publicly acknowledged and accepted.
Mr. O'Higgins: I wish to make a few remarks about these amendments. Before doing so, I should like to say that the Minister is the last person who should feel any sense of outrage that these amendments have been put down. Quite frankly, I think I could not support the amendments as they stand but I appreciate, nevertheless, the motives which moved the proposers of these amendments. I further appreciate that these amendments, or any amendments on these lines, would not be necessary were it not for the framework of this Bill and, in particular, for the wording of section 4.
The Minister when making his case against these amendments—I do not know whether it was deliberate— seemed to me to emphasise that what is involved here is the question of inciting. A great deal of apprehension grew out of this section simply because of the refusal of the Government when they were drafting this legislation to use the word “incite” instead of the phrase “encourages or advocates”. Amendments of this type are put down for consideration with a view to ensuring that the freedom of the Press and the news media generally will be unfettered in so far as fair comment and reporting are concerned. I understand that to be the motive behind these two amendments. If the  Minister and his colleagues in the Government from the very start had decided to use the word “incite” I think a lot of the difficulties which have been encountered since could have been avoided.
The only part of the Minister's contribution which appealed to me was the case he made when saying he did not believe the Press wanted to be exempt from obligations and responsibilities which are imposed by law on other sections of the community. I believe that is so. All the fears which were created in relation to this section — and I believe they were fears which were genuinely felt—were created simply because of the way in which this section has been framed. Not only the news media but others have thought, and still think, notwithstanding the concession which the Minister has undertaken to give, that this section introduces into our criminal legislation an undesirable and unwanted principle of guilt by association. Whatever is to be said against amendments which are as wide as these amendments are, I consider the framework of this legislation has made them necessary.
The Minister seemed to wax very indignant, as did some other speakers on the other side of the House, about the idea that there could be any exemptions from this legislation. The burden of the complaints from this side of the House on earlier sections of this Bill has been because the Minister in one of the definitions in this Bill, has given widescale exemptions from the provisions of the Bill. I feel I could not support these amendments but I certainly would not reject the amendments on that basis. If the Minister allows widescale exemptions from the provisions of the Bill, surely it is open to any Senator to argue that other exemptions should be granted from other provisions of the Bill. The Press and the news media, generally speaking, show a sense of responsibility. They were genuinely apprehensive that their legitimate freedom would be curtailed by this Bill. I hope those fears have been allayed, at least to some extent.
While I am sure the Minister did  not intend it in this way, the Press probably thought that there were some grounds for fear arising out of the remarks made by Senator Brugha in connection with these amendments. He commented on what might be described as presentation of the news by headline. He seemed to be making the case that while the headline taken on its own was correct, there was a different picture given when you got the whole facts or read the whole article.
Mr. O'Higgins: The Senator said they were quite free to do that and, of course, they are quite free to do so. I would be nervous, however, when that kind of argument is used in rebuttal of amendments which are motivated by a desire to see that the freedom of the Press in such matters should remain unfettered. There is ground for nervousness when it is argued by a prominent Senator on the Minister's team that this kind of news presentation by headline, possibly misleading, is something that is undesirable. When one is in the seat of power it is very easy to decide something is undesirable and must be crushed. That is the kind of approach which seems to justify the type of concern that was expressed in relation to this section on behalf of the news media.
Mr. Horgan: I honestly feel I have very little to offer by way of apology for the weaknesses of the first amendment in the names of Senator Robinson and myself. As Senator O'Higgins has ably pointed out, when one is trying to amend a Bill that is as fundamentally rotten as this one, it is almost impossible to escape the contagion. The contagion in this case is a principle of exemption to the criminal law which was introduced by the Minister.
As I have said time and time again, we do not believe in the validity of this principle of exemption but if the Minister is going to insist on introducing it, it is only logical, and he has  to accept, that other persons may see themselves as having at least as much right to the same kind of exemption as he has granted to certain classes of persons in this Bill.
The exemption which the Minister has granted to certain classes of people is on the grounds that they have an estate or interest in the land or vehicle which may be occupied. It is my contention that the media have an estate and interest in the freedom of speech which is far more tangible, far more realistic, than some of the crazy interests enumerated in the definition section under the general heading of “owner”.
Nobody, to the best of my knowledge, on the Government side, and certainly not the Minister who simply described the two amendments as identical, made any attempt to answer the second amendment in our names, which attempts to enact a definition of the word “group” and which would have very much the same effect as the amendment which we are discussing. On mature consideration I am inclined to think that the second of the two amendments is the more substantial one and if offered a choice this is the amendment I would support. Nobody on the other side really attempted to answer the arguments Senator Robinson made in support of this amendment. I was astonished and horrified at her quotation from the Offences Against the State Act and the extent to which any number of people can be construed within the meaning of that Act as a group. It seems to me under the definition of “group” which the Senator read out one could include anything from two people speaking together in the backroom of a pub to practically the entire Irish nation with the exception of the ruling party and their supporters.
Mr. Horgan: I should like to refer to a very basic point that was touched on by Senator O'Higgins. He was quite right in pointing out that throughout his speech on this amendment the Minister used the word “incitement”,  yet the fact is we are not now discussing a Bill which has to do with incitement. We are discussing a section of a Bill which has to do with something called “advocating and encouraging”. The Minister has promised to change this terminology but until he changes it we are stuck with it. As long as we are stuck with it we have a more than adequate reason for feeling alarmed at the kind of thinking behind this Bill.
Senator Nash said that if this section were not in the Bill at all the media could be prosecuted for incitement. When I asked him why then is it being inserted in the Bill he gave an answer which, to me, did not appear to have any rationale at all. He said it was put in to make it clear to people that they could not break the law with impunity, that they could not incite people to break the law and get away with it. With due respect to Senator Nash we can agree that Bills and Acts of the Oireachtas are only very marginally exercises in public education, nor does he need to be informed that ignorance of the law is not a good defence.
I argue most strongly that Senator Nash and the Government cannot have it both ways. Either this section means the same as incitement or it does not. If it does there is no reason for it to be here. If it does not one is entitle to put on it the construction put on it by the newspapers and by very many responsible commentators in both Houses of the Oireachtas. One has the right to take fright at the possible implications of this section.
Senator Brugha quoted the objection which has been voiced by the National Union of Journalists. He described it as misleading. I would love to believe Senator Brugha but unfortunately, as he knows, as the Minister knows, and as I know, his opinion is no more likely to be right than that of the National Union of Journalists and I suspect it could quite possibly be wrong. In the end it would be left to the courts to decide whether the NUJ or Senator Brugha was right, and the amendments in our names are a deliberate attempt to remove this onus from the court by drafting legislation which could not be  used in a repressive way and which could not be the reason for any sort of a spurious Government campaign against newspapers.
Senator Honan seemed to be under the impression that if either of the amendments was accepted somehow the newspapers would thereupon be guaranteed freedom from libel. Senator West who replied to him was, if anything, unduly mild in his reproof. Senator Honan also seemed to be under the illusion that there is something called accurate or objective reporting, reporting without toleration ever seen in my life anywhere is contained in the official journal of the Houses of the Oireachtas or indeed of Houses of Parliament generally. Even these may not be totally objective in the sense that the written word cannot always contain the nuances, the gestures and the grimaces that take place in assemblies like these.
When people on the other side of the House complain—and they have been complaining this evening—about inaccuracies or coloured reporting what they mean in plain language is that for some extraordinary reason the prejudices of the reporter do not happen to conform with their own prejudices. For people even to imply that this kind of reporting on behalf of the newspapers is adequate justification for the kind of legislation we are bringing in here now is very alarming.
Senator Nash drew a particularly lurid picture of the kind of situation that would arise if these amendments were to be accepted. In doing this he adopted a tactic which the Minister for Justice has been accusing us of adopting in our approach to this Bill and, in particular, on the first section. The Minister accused us of making far too much capital out of something that could only potentially happen at some time in the future. He accused us of pushing the situation to a ludicrous extreme, in order to defeat what was basically a common-sense piece of legislation. We do not accept this contention by the Minister.
I am now accusing Senator Nash of doing precisely the same thing. He is attempting to defeat an amendment by  drawing the most lurid and far-fetched picture of its possible consequences that it is possible to draw. I would go so far as to say that I would be prepared even to accept the picture that Senator Nash has drawn, bad as it is, because it would be better than passing the Bill in its present form. Even accepting Senator Nash's words at their face value, it might provide a better situation than if we were to pass this Bill as it is.
I shall conclude by going back to what I said earlier. We have had a long history of an independent and fearless Press, a Press that often broke the law of the land for the very best of reasons, and which was, and I hope still is and will be, one of the pillars of our democratic freedom. I should like to refer the House to a resolution of the Irish House of Commons on 5th April, 1784. The reference is: The Irish Parliamentary Register, Volume 3, page 144. The newspaper under discussion was the Volunteer's Journal. This resolution read:
Resolved, nem con, that the said paper is a daring, false, scandalous, seditious libel on the proceedings of this House, tending to promote discontent among His Majesty's subjects to create groundless jealousies between this Kingdom and Great Britain, to alienate the affections of the people from His Majesty's Government, and to excite an opposition to the laws of the land.
I ask the Minister and Senators on the other side of the House do they see themselves in this tradition? I should be very sorry if they did because it is a repressive and alien tradition and one that we should reject.
Mrs. Robinson: I was out of the House for a few moments when it was decided to take amendments Nos. 4, and 18 together. Although we have debated them together, I should be grateful for the right to reply briefly. They are substantially different, although the Minister replied to them together. There are one or two points that I should like to make.
An Leas-Chathaoirleach: Amendments Nos. 5 and 11 form a composite proposition, and amendment No. 6 would seem to be an alternative to amendment No. 5. Accordingly, amendments Nos. 5, 6 and 11 should be debated together, and one decision on amendment No. 5 should suffice to determine the questions involved.
Mr. O'Higgins: They should be discussed together, but a decision on No. 5 should not necessarily govern No. 6, which is to delete portion of the words but not all. If there is any great difference of opinion among the Fianna Fáil Senators on this it will become relevant, otherwise it is not.
An Leas-Chathaoirleach: The question can be raised again after the decision on amendment No. 5. Does Senator O'Higgins wish to have the question on No. 5 put in such a form that a separate decision could be taken on No. 6?
The purpose of this amendment is to tidy up what appears to us to be defective drafting. I do not pretend that any point of serious substance hangs on this amendment. However, that is no reason for not considering it seriously. The fact that a piece of defective drafting can be recognised as such but that no substantial evil obviously seems to fall from it at the moment is no reason for treating a proposal to amend it lightly. My view is that subsection (3) of section 1 belongs to a different stage in the drafting of this Bill, if one were able to track the historical layers involved in the history of its origins from the former part of the definition section.
Subsection (3), when measured against the rest of the Bill, fulfils virtually no purpose at all. If it does fulfil a purpose, that purpose is not met, unless the recital in subsection (3) is made complete. Unless subsection (3) makes it clear that it exempts from the application of the statute not only persons who enter in the exercise of lawful authority—and these persons are, as the Minister said early on Committee Stage sheriffs or gardaí with a search warrant—not only people who enter with the permission of the owner, then the owner himself ought to be exempted, if the section is to make sense.
I asked the Minister, through the Chair, when I was speaking on this  subsection on the last occasion if he would tell the House what purpose this subsection fulfils. I cannot accuse the Minister of a breach of duty simply because he thought fit not to answer that question. He has not answered it and it is not clear to me what purpose this subsection fulfils that is not adequately fulfilled by other parts of the Bill. It is further evidence of scrappy, slack drafting, supervised by a Minister with too many other things on his mind.
The Bill would not suffer if that subsection were to disappear. Anyone entering in exercise of lawful authority seems to me to be somebody who, above all others, would be entering in pursuance of a bona fide claim of right as described in clause (c) of section 2. and anybody entering with the permission of the owner seems to me to be by definition already included in the description of “owner” in the earlier part of the section.
The subsection, as it stands, adds nothing to the Bill. In case it might be desired to lend special standing to an entry in pursuit of lawful authority of the kind which the Minister described as “a sheriff entering with a warrant to execute or a guard entering with a warrant to search”, I put down a further amendment, amendment No. 11, the purpose of which is to add a further clause to section 2 taking in that particular type of entry, namely, a clause which will make it clear that somebody forcibly entering land will not be guilty of an offence if “he enters in the exercise of lawful authority”. In other words, if subsection (3) fulfils any purpose what-ever—I am not satisfied that it does and I should like the Minister to explain what is its purpose—that purpose could be more neatly fulfilled by dropping the subsection and adding, if it is thought necessary and I am not satisfied that it is necessary, a further exemption in section 2.
On the other hand, if the subsection fulfils some purpose and if the Minister sees some point in having a subsection beginning “Nothing in this Act shall apply”, et cetera, then I cannot see why we should not have a full recital of the persons whom that subsection proposes  to exempt. Why should we only have “the lawful authority people”, “the permission of the owner people” and not also the “owner himself”, if he can be distinguished from somebody entering with his permission? I do not press the point as having any obvious effect of a substantial kind but I cannot foresee what effect this kind of thing may have in the future. It may possibly have a substantial effect. Where there is a bad piece of drafting, particularly in a section or a subsection which adds virtually nothing to the Bill, it is a sound principle to cut it out because one cannot foresee what purpose, hostile to the objective of the Bill it might subsequently be used.
Mr. Alexis FitzGerald: I should like to say a few words to help my halting friend in the proposal of his amendment. I do not like the expression “Nothing in this Act shall apply”. I completely agree with Senator Kelly. It seems to be absolutely otiose and his amendment No. 11 cleans up the matter in a tidy way. When you say “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”, does that mean that certain sections of the Act, which are, in fact, designed to aid people bringing prosecutions, will not be available where the entry is in the exercise of lawful authority or with the permission of the owner? If you have a prosecution then because of the phrase “Nothing in this Act shall apply...”, the benefits of section 5 free the prosecution form the burden of proving ownership will not apply. Does it mean that section 6 will not apply? I am trying to understand the phrase “Nothing in this Act shall apply ...”. I do not know what it is intended to catch by this phrase.
Take section 6, for example, does “Nothing in this Act shall apply...” deprive a person who has made an entry by the exercise of lawful authority or with the permission of the owner of the benefits of section 6 or  does it deprive him of the assessment of the benefit with regard to compensation under section 6? I should like to know what the phrase “Nothing in this Act shall apply...” is intended to mean. What in this Bill does not apply? You would expect to see exceptions in section 2 and 3 of the kind which are intended to be made by subsection (3). The only thing missing from section 2 would be provided for by the acceptance of amendment No. 11 in the names of Senators Kelly and O'Higgins.
Mr. O'Malley: The first of these amendments seeks to delete subsection (3) of section 1. Amendment No. 11 seeks to put back the main part of what would be deleted by amendment No. 5, but to put it back only in relation to section 2. I do not see the point of taking out subsection (3) if you are going to put back most of it. Then, if you are going to put back most of it, I do not see the point of putting it back in relation to one section only and not to the other. If it is valid under section 2 it is, in theory anyway, valid under section 3.
My understanding of the words “In exercise of lawful authority” are that they apply to gardaí, sheriffs, customs officials, et cetera. The words “or with the permission of the owner”, which are sought to be deleted by amendment No. 6, which is presumably on the assumption that amendment No. 5 is not accepted, were inserted by me. By an extraordinary coincidence almost all the phrases which Senator Kelly seeks to delete are either Fine Gael amendments in the Dáil or my amendments put down at Fine Gael suggestions.
Mr. O'Malley: The words “or with the permission of the owner” were inserted by way of an official amendment in the Dáil as a result of an amendment which Deputy Cooney was suggesting to try to cover the situation of existing permissive occupiers. I think Senator Kelly inquired as to the difference between those who were acting on behalf of the owner under subsection (1) of this section and those who were acting with the permission of the owner. The difference is that I put down this amendment in fulfilment of the case made by Deputy Cooney who said—probably rightly, though possibly it is a bit obscure— that a permissive occupier did not come within the long definition of “owner” in subsection (1) and, therefore, such a person was liable to commit an offence. He inquired if that was my intention. He assumed it was not and I agreed with him that it was not. He then suggested the addition in subsection (3) after the words “lawful authority” of the words “or with the permission of the owner” to make it clear that permissive occupants and licensees or invitees, whose licences had not been revoked, would be included. That is the reason for it.
Mr. O'Malley: I suppose the words could have been added on anywhere you like. They are as well there as anywhere else. I do not see anywhere else where they could be added on more beneficially. In the context it is the right place to do it. Senator Alexis FitzGerald made the point about “nothing in this Bill shall apply...”.
Mr. O'Malley: It is a common  drafting phrase. It is as valid in subsection (3) as in subsections (4) and (5). I do not think the Senator would be correct in trying to extend it to sections other than sections 2 and 3 because these are obviously the ones to which it is intended to apply. It goes on specifically to refer to “entry or occupation”. The Senator inquired what the position would be with regard to section 6.
Mrs. Robinson: I should like briefly to support the amendment which deletes subsection (3) for the reasons given on Committee Stage and again on Report Stage by the movers of the amendment. Much of the difficulty in subsection (3) would be removed for me if the Minister could clarify the wording of it. The subsection states:
If it was clear that this does not apply to forcible entry or occupation, that subsection (3) is not continuing the exemptions which could possibly occur under the definition of owner, but is confined only to a non-forcible entry, a great deal of my objection to that subsection would be removed because I do not think it is part of the same argument. It is what Senator Kelly would call “woolly drafting” and I would, therefore, not have the same fundamental objection to it.
Mr. O'Higgins: I am glad the Minister has given the explanation he did with regard to the last seven words in subsection (3) because, frankly, but for the explanation which the Minister has given, that it was deliberately intended to cover permissive occupants by the  addition of these words, I would have felt there was something entirely wrong and obscure about the drafting of this. The fundamental defect in this whole operation is still in the definition of “owner” in section 1. If it were intended to exempt permissive occupants from the operation of this legislation the place to do it was in the definition section. Even though it may have been done in response to Opposition suggestions, to try to protect the position of permissive occupants, in fact what the Minister has done by incorporating these words “or with the permission of the owner” in subsection (3) of section 1 is to create a fantastic situation. I do not think there is any doubt about this. Remember, part of the extended definition of “owner” in subsection (1) of section 1 is that the owner can be any person acting on behalf of the owner; the owner can be any person having any estate or interest in the land.
I do not wish to travel over again the arguments we had on Committee Stage, but it is borne in on all of us that the phrase “any person having an estate or interest in the land” can include all sorts of very, very remote fractional interests. We now have the fantastic situation, by reason of the combined effect of subsections (1) and (3) of section 1, in which persons acting on behalf of other persons with a very, very remote and very, very fractional interest are themselves owners and can, under subsection (3), give permission to others forcibly to enter and secure for them exemption from the provision of this legislation. That is my quarrel with it. I do not quarrel with the principle of exempting permissive tenancies of permissive occupants. Clearly the Bill should not have been framed so that, even accidentally, it could apply to permissive tenants or permissive occupants. The way to remedy it is not the way that has been chosen by allowing the addition of these words in the general exemption section of subsection (3) of section 1 because, by doing it in this way, the door is being opened wide for wholesale exemptions from the application of this Act to all sorts of people. I do not think it is necessary to emphasise this further. I am glad that the Minister has given the explanation  he did. Had he given it on Committee Stage discussion my mind would have been directed to the particular problem of permissive tenants and I would have sought to see if the Bill could have been amended in another way so as to protect their interests and, at the same time, close this extraordinarily wide gap opened in subsection (3).
Professor Kelly: I do not wish to hold up the House, but let me say again that this subsection, like so much else in the Bill, is at best a poor piece of legislation even if it is not positively damaging to the public interest. I do not want to do the Minister an injustice. He did not, perhaps, say this in so many words but he seemed to be not far away from saying that if the subsection was weak it was partly Fine Gael's fault. I have here a copy of the Dáil Debates in which the Minister introduced the amendment which has left this subsection in the state in which it is now. It is Volume 253, column 328.
The Minister, in introducing his own amendment, the content of which was exactly the same as the subsection as it now stands, said: “I think this would cover this point.” That was the point raised by Deputy Cooney and he went on to say:
I accept the Minister is trying to do his best for the permissive occupier in this way. However, as Senator O'Higgins has very clearly said, the right place to do that and the right place to put all such cases is somewhere in the definition section. That was the reason why I was anxious to delete, for the purpose of extending the compassionate exemption which the Minister already has in subsection (1) and which again was in response to Fine Gael pressure to extend the overholding tenant clause to include any kind of overholding person, if I may speak in broad language, who in the typical  case is not associated with a subversive organisation. That was the place to do it and I am going to make that quite clear by quoting, if I am allowed, from the Dáil debate that he was not, in fact, though he may have wished to do so, meeting the point which Deputy Cooney wanted him to meet. Deputy Cooney replied to the Minister:
That is a point that we have made here repeatedly. I concede that the Minister is anxious to protect, although I think he has gone the wrong way about it, a permissive occupier. What he has not done is protect someone who has been a permissive occupier but who ceases to be by reason of the fact that his permission is withdrawn. Somebody like that, although he is certainly on the wrong side of the civil law, ought not be at the receiving end of the criminal lawstick. We have said that several times. I cannot really make it any plainer. The Minister knows perfectly well that people of that kind are not in the same situation as a typical, or even a miniscule, minority of cases associated with subversive organisations.
While I am on the subject, let me say that the Minister's arguments, although I accept that they are honestly intended in regard to the difficulty of dealing with bogus invitees and licensees, are simply not well grounded in law. Somebody who is a licensee or an invitee under false pretences, or holding himself out to be doing something which he is not really doing, is basically a trespasser. I do not think there is the slightest substance in the Minister's reluctance to accept amendments to this Bill along the lines we have suggested simply on the grounds that he will be in trouble with the idea of an invitee or a licensee providing a loophole or an escape route to people who come on to premises pretending to do business but really with the intention of taking them over. All that ought to have been done in the definition section.
Mr. O'Malley: I do not want to interrupt the Senator, but he should read my remarks at column 335 of the same debate when I moved the following amendment. I know it is a bit difficult to do when the Senator is on his feet.
Professor Kelly: Running my eye as quickly as I can over what the Minister said, I see his point is the one he has made here, but I simply wanted to rebut what the Minister seemed to be saying. If he did not say it, I will apologise, but he seemed to me to be saying that the section as it now stood corresponded with the wishes of the Fine Gael Party in the Dáil. That, as I hope I have shown, is not the case. If the Minister had the welfare of his own party at heart—I put it no higher than that—he would withdraw this Bill, take it away, look at it again and clear the rubbish out of it. A great deal of it is rubbish, as the Minister knows perfectly well.
Professor Kelly: I am not going to fall into the trap of uttering exaggerated criticisms of it, but there are many things in it which are wrong, unworkable, illogical, otiose, contradictory, incongruous, impractical and unconstitutional. To put it at its lowest, leaving the plain people out of it, as they usually are left out, the Minister would be doing his own party a good service if he took my advice in that regard.
Amendment No. 7 and amendment No. 21 are designed in the light of the debate on Committee Stage to insert a schedule of repeals of earlier legislation. I would have preferred if the Minister had done that but, in the absence of his willingness to do so, I am moving this amendment now. The effect of it is to insert a new section. The Acts enumerated in the schedule —I do not claim that this is a completely exhaustive list—seem to be adequate in the light of both the Minister's own learned treatise on Committee Stage and also from what I have read in Russell on Crime and in Archbold. It repeals four earlier statutes, the Forcible Entry Act, 1381, Statute of Forcible Entry, 1391, Forcible Entry Act, 1429 and Forcible Entry Act, 1786 which applied, as the Minister told us, peculiarly to the city of Dublin. I would like to refer fairly briefly to the debate which led to the decision on the part of Senators Horgan and myself to move this amendment.
First of all, in relation to the existence of the Forcible Entry Act, there seemed to be some doubt in the Minister's mind in the early part of the  Committee Stage as to the effectiveness of these statutes under our present law. When I quoted them to him in the debates of Wednesday, 18th August, at column 324, I stated:
I am tired quoting recent prosecutions in England and there were prosecutions much more recently in Ireland, not in this century. It is possible to prosecute under such statutes and I would be prepared to submit that they are the law at the moment. The Minister is not creating an entirely new pattern.
Mrs. Robinson: If the Minister is not repealing them then why admit that a landlord is liable under the Forcible Entry Act and not make him liable under this Act? I do not understand. If the Minister admits that position and if he admits that under the Forcible Entry Act the landlord is liable——
I pursue the line of argument that this is departing from the general prohibition of forcible entry under the old Acts and to the creation of an extraordinary number of exemptions under the more recent legislation.
He goes on to describe the Acts as “old cod” and “a lot of rubbish”, et cetera. At a later stage of the debate, on Committee Stage, the Minister went into great detail on the statutes on forcible entry, traced their history, admitted that they existed under the law, quoted the Minister for Justice in 1955 who got the opinion of the Attorney General that it would not be either easy or wise in the Irish context to prosecute under these Acts. That is something I would not dispute.
With regard to the six Forcible Entry Acts which may or may not be in force, my view of them is that if and when this Bill is passed whether they are in force or not is even more academic and I would propose to have them repealed in a Statute Law Revision Bill which is the appropriate place to repeal provisions of that kind. My view about them is that they are so archaic, that they are subject to such bizarre requirements and the penalties in them are so grossly excessive that I would not encourage the Attorney General to use them and the Attorney General, as well as his two or three predecessors, has already decided that he would not use them. I understand that has been the direction given in 1955 and agreed by subsequent Attorneys.
At a later stage, on other amendments, I shall be pointing out that, if the decision is taken in principle, whether or not this be the Bill under which we do it, to repeal these earlier Acts then, effectively, the only statute prohibiting forcible entry would be this statute and, like other Senators on this side of the House, I am very unhappy with the statute we are creating as the modern and only statute prohibiting forcible entry and I am very unhappy with the wide exemptions we are allowing to a criminal statute and I am very unhappy with the general tone of the Bill.
 I am convinced from looking at other statutes, particularly the Criminal Justice Bill, which I quoted, where many older and more obscure statutes were listed for repeal, that the Minister does not have to wait until some indefinite date in the future to bring in a Statute Law Reform Bill, that the appropriate place to repeal statutes on forcible entry, which he describes as “old cod” and which he says are inoperative, and which he wishes to get rid of, is in the present statute on the Prohibition of Forcible Entry and Occupation Bill. I would submit that if sufficient time and care had been taken over it, the Minister would not have had to evolve so dramatically during the Committee Stage, as he did, first of all, to recognition of the existence of these old Acts, and then to a decision that he did not like them and, thirdly, to a decision that he would ultimately repeal them.
I put it to him that the amendment here is a constructive attempt to clarify the law relating to forcible entry in Ireland and that, apart from the procedural tidiness of repealing earlier statutes in a statute relating to a particular subject, it makes it clear to lawyers that there is only one Act on forcible entry once this Bill is passed and that the principles in it are the principles which govern. I say this because there is the underlying point that there is a conflict in principle between these early Acts and the present Prohibition of Forcible Entry and Occupation Bill. Unless we are prepared in this Bill before the House to carry out the Minister's intention and to repeal the earlier Acts, there will be the possibility of two conflicting types of statutes—the early Acts which, in my view, were on a much sounder principle in fact and this present Prohibition of Forcible Entry and Occupation Bill. You will have a situation where a landlord who forcibly enters property—let us not hammer the landlord all the time—a person with an estate or interest in the land who might not necessarily be a landlord; he might be somebody with any sort of estate or interest in the land, or even possibly with a right to possession but, for the sake of the  argument, let us say that he did not have an immediate right to the posession, who forcibly enters the land: he is clearly not committing an offence under the present Prohibition of Forcible Entry Bill. I would say that under the earlier Acts he is committing an offence.
Are these Acts still operative or not? The reason that this is relevant is that, if he came to his solicitor to know what sort of action he could take, if the Prohibition of Forcible Entry and Occupation Bill is the only piece of legislation on forcible entry, it is much easier for the solicitor to say: “You might be in danger of incurring civil sanctions and there might be action taken against you if you use unreasonable force, but I can safely say to you that you would not be committing a criminal act if you and others on your behalf helped you and you forcibly entered that property.” It is bad for the clarity of the law and bad for the understanding of the law that we have a modern Bill which runs against other earlier legislation, unless we are prepared to clarify that position and to repeal the earlier legislation. Therefore, I put it to the Minister very strongly that it is in line with his own statements on Committee Stage, that it is a logical conclusion from the debate that we have had on Committee Stage. I repeat again, this is something that did not come up directly in the Dáil and his mind was not formed on it in the Dáil and he did not apply himself to this particular point. I would ask him then to accept this amendment and to include the schedule of earlier statutes and to repeal them.
Mr. O'Malley: The first thing I should like to say about these statutes and Senator Robinson's attitude to them is that it is difficult to see the logic of her position because, in every contribution in which it would be in any way relevant, she keeps referring to these Acts of up to 600 years of age. I got the impression from her over most of the debate that she was very keen on these Acts, that these medieval concepts were much superior to our modern concepts and that she thought that things in these Acts were much better than what is in this Bill. I found  that point hard to reconcile when she constantly refers to the fact that there is a potential penalty of three years imprisonment in this Bill when, in the latest of the Acts which she has advocated so strongly, the minimum penalty, rather than the maximum, is three years penal servitude and the maximum is seven. Notwithstanding her keenness on the Acts, she puts down these two amendments, Nos. 7 and 21, for the purpose of repealing them. I find it difficult to follow her logic because, if the Acts are superior to the present Bill, presumably it would have been more logical to leave them there. What I said on 19th August at column 435 was:
——my view on them is that if and when this Bill is passed whether they are in force or not is even more academic and I would propose to have them repealed in a Statute Law Revision Bill which is the appropriate place to repeal provisions of that kind ...
Then I went on to say they were archaic and the Attorney General, as well as his predecessors since at least 1955, had decided that, even if they were in force, they should not be used. Since that debate I have come across a further opinion of the Attorney General, in September, 1960, in which he advised the gardaí in a particular case not to use these statutes. He also said in the course of his remarks that it had been the view of “this office”—as opposed to the then holder of the office presumably—for many years past that if those statutes were in force they were unenforceable.
Mr. O'Malley: No. The phrase was that for many years past they had  been regarded as archaic and unenforceable. The view of the Attorney General is that it is not clear they are in force but even if they are in force they are rather pointless. I shall read the extract for the benefit of the House. The opinion is dated 6th September, 1960, and reads:
For future guidance I might add that in this office the line has been taken for many years past that the charge of forcible entry ought not, generally speaking, be used as a means of assisting in the enforcement of the civil right to possession of property.
If it were found necessary, desirable or appropriate to repeal those Acts in this Bill, I think the sensible thing to do would be to repeal them all together rather than to repeal some of them and to leave the remainder in force, if they are at present in force. Senator Robinson, in her amendment, has omitted the Forcible Entry Act, 1634, which, being a pre-Union Irish statute and having been enacted in this country, is more likely to be in force, if any of them are in force——
Mr. O'Malley: The earlier Acts were English Acts which were simply applied to Ireland by Poynings Law. I should imagine that the probability is —in fact it is a certainty—that the Act of 1643 is in English, unlike any of the other Acts. I might also say that there is a high possibility that we could read a copy of it somewhere, unlike any of the other Acts.
 If they were to be repealed I feel that should be one of the Acts to be repealed. It is significant that the draftsman of the Criminal Justice Act, 1967, sought only to repeal the 1786 Act. I do not know why he did not seek to repeal the other Acts. He may have formed the opinion that they were not in force or that they had already been repealed.
Mr. O'Malley: Amendment No. 21 is not complete and I think it would be unsatisfactory, even if one felt that it could be inserted in this Bill. I do not accept that it should be included. I said the last day that the place to repeal such enactments was in a statute law revision Bill. They would be more appropriate to such a Bill than they are to this Bill. I find it particularly difficult to follow Senator Robinson's reasoning in now seeking to repeal what she has for a long time lauded as something superior to this Bill. If those Acts are in force I do not see any difficulty in reconciling their existence—because they are unenforceable anyway—with the existence in law of this Bill. The Bill before us is designed to deal with conditions and situations existing in 1971 onwards. Acts of 1381 or 1391 were designed to deal with conditions at that time. They are not necessarily the same type of legislation nor could they be.
Mr. O'Higgins: I support these  amendments. However, I should like to clear up one point. I think the Minister inadvertently misled himself with regard to the extract he quoted from the Attorney General's office. It seemed to me, when the Minister read the quotation, that the advice given there was not an opinion one way or the other as regards the enforceability of those Acts but advice as regards the undesirability of using those Acts in relation to civil disputes. However, that matter is not particularly important except that I would be interested to know if I am correct in my view of the advice that was given.
Mr. O'Higgins: The weight of the Minister's arguments against acceptance of these amendments seems to be that this was not the appropriate Bill in which to carry out these repeals and that these repeals should be carried out in some other form of legislation. I cannot think of anything more appropriate than a Prohibition of Forcible Entry and Occupation Bill in which to repeal a Forcible Entry Act, a Statute of Forcible Entry, a Forcible Entry Act and another Forcible Entry Act. The only understandable reason —although I do not accept it as a valid reason—for not accepting these amendments would be reluctance on the part of the Minister to bring this Bill back to Dáil Éireann.
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