Seanad Éireann - Volume 85 - 01 September, 1976
National Emergency: Motion (Resumed).
The following motion was moved by Senator M.J. O'Higgins on 31st August, 1976:
Go mbeartaíonn Seanad Éireann leis seo le rún, de bhun fho-alt 3º d'alt 3 d'Airteagal 28 den Bhunreacht,
(a) nach ann a thuilleadh don staid phráinne náisiúnta arbh é an coinbhleacht faoi arm dá dtagraítear sna Rúin a rith Dáil Éireann  agus Seanad Éireann, de bhun an Airteagail sin, ar an 2 Meán Fómhair, 1939, faoi deara é, agus
(b) go bhfuil ann, de dheasca an choinbhleachta faoi arm atá ar siúl anois i dTuaisceart Éireann staid phráinne náisiúnta a dhéanann difear do bhonn beatha an Stáit.
That Seanad Éireann hereby resolves, pursuant to subsection 3º of section 3 of Article 28 of the Constitution,
(a) that the national emergency created by the armed conflict referred to in the Resolutions, pursuant to the said Article, of Dáil Éireann and Seanad Éireann of the 2nd September, 1939, has ceased to exist, and
(b) that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.
Debate resumed on the following amendment:
Na litreacha “(a)” agus “(b)” a scriosadh agus na focail go léir i ndiaidh “(b)” a scriosadh agus an méid seo a leanas a chur ina n-ionad:
“ag féachaint don fhoréigean leanúnach i dTuaisceart Éireann agus do chor an dlí agus an oird agus na slándála sa Stát a bheith ag dul in olcas, go n-ordaíonn Seanad Éireann don Rialtas leorphearsanra agus leor-achmainní a sholáthar agus a úsáid chun sábháilteacht agus dearath gach uile shaoránach a áirithiú, agus gach beart is gá agus is iomchuí a dhéanamh chun treascairt a chomhrac agus a chloí mar aon le gníomhaíochtaí eagras neamhdleathach”.
To delete the letters “(a)” and “(b)” and delete all the words after “(b)” and substitute therefor the following:
“having regard to the continuing violence in Northern Ireland and the deteriorating law and order and security situation  within the State, Seanad Éireann directs the Government to provide and to utilise in full, adequate personnel and resources to ensure the safety and wellbeing of all the citizens, and to take all necessary and appropriate steps to combat and defeat subversion and the activities of unlawful organisations”.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: A Chathaoirleach, last night I began by examining what is meant by this motion resolving that there is a national emergency. I emphasised that this is not to be regarded as a statement of how serious or how urgent the situation in Ireland is today. That can be done, and is being done in various other ways, and there is nothing to stop a Government Minister, or the Taoiseach, either on television or in either House of the Oireachtas, from saying this and emphasising it. I am sure many people feel there is a very urgent situation. The resolution before us is a technical legal device, specifically provided in an amendment to Article 28 of the Constitution, to allow the Government to come before the Oireachtas and ask for power to bring in legislation which would otherwise be unconstitutional. Therefore I believe the focus of our discussion, and the focus of our questions to the Minister, should be to elicit from the Government why, in responding to a serious problem and a serious situation, they want power which would otherwise be unconstitutional.
There is a very substantial onus on the Government to spell out fully the specific details related to the type of power contained in the Emergency Powers Bill, to say why this power is deemed to be necessary to meet the precise threats, or urgency, or difficulty in the country.
In his opening speech the Minister did not do this. He has indicated that he would be willing to make his views more specific and to deal with the provisions of the Emergency Powers Bill. I propose this morning to spend some time identifying the precise nature of the legal powers the Minister is looking for which would otherwise be unconstitutional,  the precise situation this would leave, and then to pose very searching questions to the Minister about the necessity for this, and the desirability of extending the scope of our law in a way that infringes the fundamental rights and civil liberties of citizens but comes within this technical device of proclaiming a national emergency.
This is a very grave type of step for the Oireachtas to take because any such legislation is immune from constitutional challenge. That is the effect of Article 28. It cannot be challenged in our courts. The individual is without the protection of the courts in relation to that legislation and, therefore, we must be very careful, indeed, in taking any decision and we must be fully aware of the implications of it. I pointed out last night that the problem in identifying the nature of this motion declaring a national emergency is that we have cheapened the concept and devalued the concept of our fundamental law, of our civil liberties, and of the exceptional nature of a national emergency, because there has been a latent declaration of national emergency proclaimed in 1939 which has remained there and has never been revoked by the Houses of the Oireachtas. Successive Governments bear a very substantial measure of deep responsibility for this, because they employed political attitudes and excuses which do not carry any weight to continue latent powers which go beyond what should be acceptable in a democratic society. This has resulted in a cheapening of the quality of our democracy, the quality of our structures, our concern for civil liberty. We are all the poorer for that. We now pay a price for it, even in debating this measure, because it is hard to find meaningful words to express concern about what is meant by declaring a national emergency.
I should like to turn to the amendment to the motion before us proposed by Senator Lenihan and Senator Eoin Ryan on behalf of Fianna Fáil. The net effect of this amendment would be to delete the part of the Government motion declaring a new emergency but to retain the terminating of the 1939 emergency and to add a hortatory formula  calling on the Government to use every means to ensure order and security in the State. I have now been seven years in the Seanad and I think this is where I reach the lowest ebb of cynicism in my reaction to the amendment put forward by Fianna Fáil.
The effect of it is that Fianna Fáil now ask both Houses to end the state of emergency declared in 1939 which they left on the Statute Book during 30 years of being in a position to do something about it. The way in which they have come to this decision has been commented on sufficiently. Whatever else Fianna Fáil may be accused of in relation to the state of emergency and, indeed, in a whole range of civil liberties, they cannot be accused of consistency. They cannot be accused of having a firm position which they will identify and stand over.
I do not propose to deal at any length with this amendment. I regard it as a cynical political piece of nonsense. The only reason Fianna Fáil put down an amendment to a motion which brings to an end the state of emergency is that they know it will be defeated. It is as cynical as that. It is not worthy of consideration or examination in any detail.
I should like to return instead to the implications of the motion before the House.
Before looking at the particular sections, both of the Emergency Powers Bill and the Offences Against the State Act which are relevant to the nature of the power the Government are looking for, I should like to develop a little bit the theme I had just started on last night when the House adjourned. That was the question as to whether these sort of measures, the package the Government are bringing forward, in isolation, are the appropriate response to the very serious and critical situation here. I mean that not only in relation to the use and the threat of violence, and the increasing incidence and evidence of violence, but also the serious economic situation, the serious social and cultural challenges that will face this country. There is a need for an imaginative political initiative to fill  a gap which will only get worse if the response is one of meeting force with force face on, as the Minister said in his introductory speech. That, without any political attempts to break deadlocks and create possible political solution to the problems in this island North and South, could be a very bankrupt policy of continuing confrontation and violence, breeding further reaction from those who are prepared to resort to violence.
I should like to see more willingness, not just by the Government but by the people of this country, to consider the sort of political initiatives which can be a real response to the women and now the men of Northern Ireland—the ordinary people who are getting out on the streets and marching. They are entitled to more than this type of package legislation to meet the specific security problems. They are entitled to ask all of us to think much more seriously and much more openly about political initiatives on this island which can resolve the crucial problems and which can allow us to build and to stop destroying the country.
As well as the need for a better political response, I believe there is also very grave need here in the South to fortify and to make respectable our institutions and our administrative processes. We should not allow, however regretfully, continuing erosion of our civil liberties, increase in penalties, increase in this type of legislation, without the strong complementary introduction of increases reinforcing our democratic institutions and our administrative processes which must continue to attract the allegiance of the citizens of this country. Our structures must be attractive to the people and evoke their loyalty and respect.
In this regard, I would ask the Minister to consider the absolute necessity to introduce an independent police authority so that there cannot be an alienation of the Garda from the people of Ireland, so that there cannot be rumour built on rumour of either actual abuse or allegations of abuse. Rumours are nearly as bad as the reality. Justice must be seen to be done. Allegations of brutality must be  seen to be impartially investigated. The people who will need evidence of this are the young—the 17-, 18-, 19-year-olds a significant proportion of whom will be unemployed, who will have to face personal crises and difficulties over the next few years. We need institutions and administrative processes that bind them in loyalty and trust to our State. The Government, by meeting force with force face on, are not building the sort of structures which will reinforce the allegiance and trust of our people. That is a very significant danger.
We must also ensure that the morale of the Garda is at a high level. It is my understanding that the morale of the Garda at present is at a very low level. I do not know enough about the details of this to be able to comment authoritatively on it. There is substantial unease, frustration, and there is even the possibility of the Garda deciding, in the absence of having the right to strike, that they will go on sick leave for a single day to demonstrate this bubbling frustration and discontent. This discontent is a discontent with personnel at the top, with conditions and with various other aspects. That undermining of morale is highly relevant to the ability of this State to maintain its democratic structures, to maintain the allegiance of the people of the State, to the ability of our society to resist the undermining threat of the bullet and the gun and those who are prepared to use force and violence. It is not easy for a democracy to maintain its equilibrium and its balance. This package alone is not a balanced response to the very serious threats to our institutions and to our State.
Another appropriate response would be to process a little more rapidly the establishment of an ombudsman type of structure for complaints against maladministration. The Government are asking for very extended power, State power, to cope with the difficulties before the country. They must compensate by ensuring responsibility, by accountability, by independent investigation, by accountability to an ombudsman type process. As well as that there should be in the economic  and social fabric of our country a great deal more participation and devolution in decision making. These factors are not unrelated to the current situation. They form part of a much broader response we should have to the difficulties of our country.
I should now like to turn to the specific details of the proposed power the Government are asking for, which would be unconstitutional if it were not for this technical device of resolving that there is a national emergency thereby making it immune from constitutional challenge within the terms of Article 28. I should like to turn to the Emergency Powers Bill, 1976, which is directly linked to the resolution of emergency. It need not be the only Bill in this category but it is the only one at present which we have to consider. By reciting in its Title that it is:
An Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a Resolution on the —— day of ————, 1976, pursuant to subsection 3º of section 3 of Article 28 of the Constitution.
it will have this immunity from constitutional challenge.
I should like to refer to its duration. Section 1 can be misunderstood, and has been, by some commentators on this Bill, as appearing to provide that the second section allowing for arrest and detention for seven days will lapse after 12 months unless extended by Government order. It has to be clear that this section will only lapse in the sense of not being operative, but it can be revived and reactivated again at any time, in ten years' time, in 15 years' time, in three years' time, by an order of the Government, not by these two Houses being recalled in special session but purely by Government order.
There is some control by the Oireachtas. In my view it is too little. There is the fact that the order will be placed before both Houses and a resolution annulling the order can be passed within 21 days. The order will  then be annulled without prejudice to anything done in the interim. All of us who have been in this House for any length of time know that this negative motion procedure is a very minimal control indeed. It does not involve the Oireachtas in an assessment of whether it is necessary to revive the powers of arrest, custody and questioning under section 2 of this Bill. It leaves that decision purely to the Government and then provides the power to table a motion annulling subsequently, knowing the very slim hope there would be of an actual possibility of such annulment.
It would be an improvement if the section would allow the Government, to lay the order in draft before the Oireachtas and so to need to come back to both Houses in order to revive this power. In those circumstances I would accept that it has, in a sense, a duration of 12 months, unless there is the legislative will for it to continue. I am trying to identify minimal safeguards which should be in this Bill if the Minister can satisfy us that he needs powers which would otherwise be unconstitutional. There is that onus on him, in replying to the debate, to try to so satisfy us.
Looking then at section 2, relating to arrest, custody and questioning of persons suspected of certain offences, this Bill provides:
A member of the Garda Síochána (on production of his identification card, if demanded, where he is not in uniform) may without warrant stop, search, question and arrest any person, or do any one or more of those things in respect of any person, if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence under the Offences Against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act, or if he suspects with reasonable cause that that person is carrying any document or other article or thing, or is in possession of information, relating to the commission or intended commission of an offence.
 That section is very like section 30 of the Offences Against the State Act, 1939, except that there is the substitution of the word “question” for the word “interrogate” which is used in section 30 of the Offences Against the State Act. Obviously it is not a nice piece of legislation. It is the sort of legislation that a society like ours is faced with and has had on its Statute Books, necessitated to counter the violence and threats of those who would use force to achieve their objectives. The section then goes on:
A member of the Garda Síochána (on production of his identification card, if demanded, where he is not in uniform) may, for the purpose of the exercise of any of the powers conferred by subsection (1) of this section, stop and search any vehicle or vessel ...
Again this is not a novel type of power. Subsection (3) is the one which necessitates a declaration of a national emergency because it would otherwise be unconstitutional. It provides:
Whenever a person is arrested under this section, he may be removed to and kept in custody in a Garda station, prison, or other convenient place for a period of 48 hours from the time of his arrest and may, if an officer of the Garda Síochána not below the rank of chief superintendent so directs, be kept in such custody for a further period not exceeding five days.
This provides for a person being kept in custody by the Garda in either a Garda station, prison or a convenient place for a maximum of seven days.
The first very substantial point of principle in regard to that sub-section is that it blurs a distinction which I regard as important between the investigatory role and powers of the Garda and the custodial function and powers of a prison officer. The Garda, in our system and our type of administration, are not custodians. They have very limited custodial powers, for example, in  relation to a person who is seriously mentally ill. They have some very limited custodial power before a person can be placed in proper custody. Indeed, there was a very undesirable abuse of the custodial power of the Garda in relation to holding juveniles in the Bridewell as the only appropriate place because there was no institution in our State to which they could go. That was undesirable for all sorts of reasons, not the least being that the Garda are not a custodial authority. They are the investigatory organ of the Executive. They investigate and decide if crimes have been committed. The DPP or the Attorney General then decides whether a prosecution will be brought. It is in our prisons and other institutions geared for formal custody that the necessary safeguards and minimal protections of the individual apply. I should like the Minister to elaborate in some detail on why he is going to give an extended custody power of seven days to the Garda.
I should also like to ask him why we have the formula “Garda station, prison, or other convenient place.” What is meant by “convenient place” there? To me it engenders a vision of a place which is, perhaps, not even known to the citizens of this country. Whether this would be a reality or not, it could certainly be the subject of a rumour that there was some “convenient place” somewhere where people could be held for seven days by the Garda. That is very undesirable and I would welcome very specific elaboration by the Minister on why he feels it is necessary.
Reference has been made to the fact that after the period of 48 hours, which is the present law, it is an officer of the Garda Síochána not below the rank of chief superintendent who can decide that the person can be detained for a further five days. This does not compare favourably with the position in another jurisdiction, namely, Britain where it has to be done by the Home Secretary, an accountable political figure. It again reinforces a possible suspicion that the Garda are  being given very dramatic powers in this section. For that reason too it reinforces the possibility of rumour, disquiet and alienation between citizens and the Garda.
There is no indication in the section as to whether a person so detained would have a right to a legal adviser. Unfortunately, this right to a legal adviser has not been clarified or resolved in our law. It is not something therefore on which one can give a very precise answer. If the Garda are to be given power to detain persons, it should be expressly inserted into any such provision that they would have a right to the presence of their legal adviser. Nor, indeed, is it in any way stated here—and therefore it is difficult to know whether it would be the fact —that relatives would know where the person was being held. Again a denial of that goes far beyond anything that would be necessary in our State in proposing to extend the powers of the Garda and thereby diminish the liberties of the individual.
It could cause great distress and apprehension and immense heartache to a family if they did not have the right of knowledge and access. There must be a right of knowledge of where the person was and access to that person. I should like the Minister to clarify whether habeas corpus proceedings would apply to persons detained in this way. If there was no reasonable ground for such detention, or if there was some malpractice in relation to extending the detention, would habeas corpus proceedings apply?
So much for the circumstances surrounding this power which the Minister is seeking. It is unacceptable that the Garda will be exercising this extended custodial function; that the venue can be a Garda station, a prison or “a convenient place”; and that there is no express provision guaranteeing access to a lawyer or even a doctor. If people have a particular illness or want their own doctor, will they have access to their doctor during this period? Will there be information given to a relative of where the person is?
Another basic question is what will  the Garda be doing in this extra five days that they are not doing in 48 hours? What are the powers of the Garda in this regard and in what way is 48 hours insufficient and seven days necessary to the discharge of these powers, and is it desirable that the Garda have seven days to discharge these powers? To answer that one has to look at the relevant sections first of all of the Offences Against the State Act, 1939, and then of the Criminal Law Bill, 1976, which is not actually before this House but which, I think, is relevant to trying to understand the scope of the power being requested by the Government.
Section 30 of the Offences Against the State Act, 1939, provides that:
A member of the Garda Síochána (if he is not in uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid.
So section 30, which has been on our statute book for a very considerable time now, since 1939, gives the Garda power, without warrant, to stop, search, interrogate and arrest any person on suspicion of an offence under the Offences Against the State Act, 1939.
Normally in our criminal law the police when arresting can question a person and the person is not required to answer those questions. There is what is called the right to remain silent, the privilege against self-incrimination,  the right to say “I do not wish to make a statement, I do not wish to say anything”, and our criminal law carries a presumption of innocence and says: “The silence of the accused will not be interpreted as in any way evidence of guilt, evidence of something to hide”. There is a presumption of innocence. In the normal processes of our law, in that careful balance between the forces of the State and the individual accused or suspected of a crime, there is the right to remain silent. However, that right itself has been seriously curtailed by another section of the Offences Against the State Act and that is section 52 which provides that:
(1) Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Garda Síochána may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence.
(2) If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the Garda Síochána, fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.
Therefore there is a very different position in relation to offences under Part IV of this Act, which includes offences such as membership of an unlawful organisation. The fact that any member of the Garda Síochána can require a person to answer questions, can demand a full account of such person's movements and actions during any specified period and all information in his possession in relation to the  commission or intended commission by another person of any offence, is very far-reaching legislation which has been on our statute books since 1939.
This section is very relevant to considering the extension of the time for which the Garda may hold a person from 48 hours to seven days. In the normal process one would say our law does not allow legal interrogation, and yet under the terms of section 52 our law allows prolonged questioning by any member of the Garda. One could presumably legally interpret that as being capable of extending to a succession of members of the Garda. There is a requirement that the accused respond. He cannot remain silent. If he refuses to reply or gives misleading information, he commits an offence and he can be convicted and get a prison sentence of six months. So there is as part of our law as it stands at the moment the right of the Garda to question extensively, to interrogate and to convict of an offence if there is a refusal to reply or misleading information given.
The Minister has a responsibility to clarify to this House to what extent the powers of section 52 support the proposed extension from 48 hours to seven days. Is it thought necessary that there be extensive questioning of an individual over a period of seven days by the Garda in a Garda station, prison or convenient place? Even if this is not the reason for wanting this extension of power, must it not be an accusation that will be levied that the police are interrogating over a period of seven days and are legally entitled to do that under our law at present if we pass this Emergency Powers Bill? What are the implications and what are the possible dangers that this might pose to the concept of civil liberties and to the protection of the individual?
There is one other measure which is directly relevant to the powers of the Garda and that is section 7 of the Criminal Law Bill, 1976. Again I am aware that this is not properly before the House but I think it is linked to the resolution and certainly linked to any attempt to identify what the powers of the Garda will  be. The explanatory memorandum to the Criminal Law Bill states explicitly that section 7 refers only to section 30 of the Offences Against the State Act, 1939, and the new sections of the Emergency Powers Bill, 1976. The explanatory memorandum says:
Section 7 gives the Garda Síochána certain powers in relation to persons in custody “under the provisions of any enactment ... under which persons may be arrested, kept in custody and questioned”. At present, section 30 of the 1939 Act, gives power of arrest, custody and questioning and such a power is also proposed in the Emergency Powers Bill, 1976. Section 7 of the Bill is intended to apply to persons in custody under either of these provisions. Subsection (1) sets out the proposed Garda powers. Subsection (2) relates to obstruction of the Gardaí when exercising such powers ...
Therefore the explanatory memorandum would lead one to believe that it would be stated expressly in the section that it was confined to section 30 of the Offences Against the State Act and the Emergency Powers Bill itself. However, when one looks at section 7, this is not the case. There is at least ambiguity, if not a more serious lack of clarity in the situation.
Section 7 (1) says:
Where a person is in custody under the provisions of any enactment for the time being in force under which persons may be arrested, kept in custody and questioned, a member of the Garda Síochána may do all or any of the following in respect of him:
(a) demand of him his name and address;
(b) search him or cause him to be searched;
(c) photograph him or cause him to be photographed;
(d) take, or cause to be taken, his fingerprints and palm prints;
 (e) make or cause to be made any tests designed for the purpose of ascertaining whether he has been in contact with any firearms (within the meaning of the Firearms Acts, 1925 to 1971) or with any explosive substance (within the meaning of the Explosive Substances Act, 1883) and for that purpose take swabs from his skin or samples of his hair;
(f) seize and retain for testing anything that he has in his possession.
Subsection (2) provides that any person who obstructs shall be guilty of an offence.
This constitutes a considerable extension of the investigatory powers of the Garda, both in a questioning sense and in a physical detection sense. The explanatory memorandum may have indicated they were confined to section 30 offences or to section 2 of the Emergency Powers Bill, but the particular formula adopted is open to the interpretation that it applies to the whole range of arrestable offences where persons are in custody under the provisions of any enactment for the time being in force “under which persons may be arrested, kept in custody and questioned”. There is a whole range of arrestable offences, a very broad range—anything that is not a minor offence is an arrestable offence for which a person can be arrested, kept in custody and questioned.
I think the Minister would try to make a distinction between such questioning and either what is called in section 30 “interrogation” or what is called in the Emergency Powers Bill “questioning”. I would submit that is not a valid distinction which can be drawn. Any accused arrested and taken into custody can be questioned by the Garda and therefore he can be classified as “arrested, held in custody and questioned”. This is clear from the Judges' Rules which apply to the whole range of criminal offences in this country. I would like to quote the Judges' Rules in this regard because they are not intended only for  the exceptional case, they are for the whole range of our criminal law. They are set out in a case reported in the 1972 Irish reports at page 312 called The People (at the suit of the Attorney General) v. Cummins, and I quote from page 317 of that report:
The Judges' Rules which are mentioned in the judgment of Walsh J. are in the following terms:
1. When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, for whom he thinks that useful information may be obtained.
2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such a person before asking him any questions, or any further questions as the case may be.
3. Persons in custody should not be questioned without the usual caution being first administered.
4. If the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words of such caution should be omitted, and that the caution should end with the words “be given in evidence”.
5. The caution to be administered to a prisoner when he is formally charged should therefore be in the following words: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.” Care should be taken to avoid the suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person making a statement which might assist to clear him of the charge.
That is enough reference to the Judges' Rules to make it clear that, when a person is charged with an arrestable  offence and taken into custody, then he can be questioned. Therefore you have an offence for which a person can be “arrested, taken into custody and questioned”. That formula applies to the whole range of serious criminal offences. To me the effect of section 7 of the Criminal Law Bill as it stands at the moment would be to open up the possibility of any such a person being searched, photographed, having fingerprints and palmprints taken and also swabs of skin and samples of hair taken from him. When we consider this Bill it will be necessary to put down and seek considerable amendment to prevent that type of intrusion.
The relevance of this section to my basic argument is that it defines the sort of power that the Garda have: power to investigate, power to question. In the normal range of offences the Judges' Rules allow a person to remain silent and limit strictly the powers of the Garda. I would like the Minister to clarify the limits on the powers of the Garda to question persistently over seven days. What are the checks on that power in light of the terms of section 52 if we allow detention by the Garda over that longer period? What are the legal checks, the constitutional checks? We are not concerned about the Constitution in this; it is outside the scope of the Constitution. What are the checks that will ensure that there is a protection of the individual in that position and that there are proper safeguards? To what extent can the Government ensure that the checks, if there are checks, are enforced? What power of supervision is there, what power of accountability from members of the Garda? What possible power of supervision on accountability will this House have over that activity? We know that the courts will not have judicial review because individuals cannot challenge the constitutionality. The courts might have some control if the individual can bring habeas corpus application, I should like clarification of that aspect.
These are very important questions because they identify the particular power which the Government are  seeking. The onus is a very severe one of justifying the exercise of that power, justifying whether it conforms to minimal standards of protection of the individual in our State. My difficulty is that nothing in what the Minister said or what the Taoiseach said bears in fact on the precise scope of this power. Their contributions have not as yet related to it, so I have to wait for the Minister's response to the questions I am putting. I would have thought that, if the Minister does feel it is absolutely necessary to have the power to hold a person for more than 48 hours, to hold a person for seven days then there are ways of doing it that would be less objectionable than the type of formula in this Emergency Powers Bill.
First of all, the type of custody should be custody in a prison and only in a prison. Members of the Garda in discharge of their investigatory functions could have access to that person; access for the purpose of questioning, access for the purpose of fingerprinting, photographing, taking swabs of skin, hair and so on; but at the same time the person would have the security of being in a place that is a place of custody, an equipped place with the safeguards of prison regulations, and an identifiable place, not a place of “convenience” somewhere.
The importance of this cannot be underestimated. The real battle is a battle for the minds and hearts and allegiance of the people of this country. If the people begin to believe, and begin to get rumours of the fact that people can be taken and kept in unknown places of detention for a period of seven days during which, legally under our system, they can be questioned by a succession of members of the Garda and are not allowed to remain silent but are supposed to answer these questions and commit offences if they give false or misleading information not only about their own activities but about the activities of others, it will lead to sharp alienation from the Garda. That is getting very close to what we would condemn in any country as going beyond the bounds of what is acceptable. It is  not possible to have a satisfactory definition of torture, but persistent questions over a sustained period must come within the possible definition of undue harassment and intimidation of an individual. We must ensure that whatever power the Government feel they need in this situation does not make that type of harassment legal and therefore create a climate where it is feared and apprehended it might be taking place.
I am concerned at two levels. Obviously there is a concern that harassment might in fact take place. I believe that there has been evidence of some brutality and intimidation by our Garda, that it is very small, but any element is regrettable. I am much more concerned about the apprehension or belief or rumour that these powers will be abused, and when I say abused what worries me is how far one can go and still be perfectly legal. One does not have to “abuse” in the sense that the individual Garda is authorised, apparently to question extensively over a period of seven days. That is very worrying.
Let me get back to what would be the very minimum that I believe this House should approve if in the event of the Minister justifying the need for a power of detention for seven days, which would be an unconstitutional power unless it were within this formula of a national emergency and an Emergency Powers Bill, the absolute minimum is that the person be detained in a prison with people whose function and duty and responsibility is a custodial function, not an interrogatory function; that access be allowed to the Garda to discharge their investigatory functions; that there also be right of access by the person's lawyer, the right of the person to have his legal adviser present, in particular in view of the scope of Article 52. If a person must answer the requisition — he must answer the questions, and commits an offence if he answers in a false or misleading way — he should have his lawyer present. That is again a minimum safeguard to the individual in the circumstances, and I see nothing  in the presence of the lawyer that will undermine the effectiveness of this power, whatever the reasons and the possible scope of reasons for this type of measure. A person should have his legal adviser present during questioning and it should be clear that a person would have right of access to a doctor and to relatives in the same way as any other person held in custody over a period would have. These are the minimal safeguards in what is not at all an attractive proposition, but which the Minister may be able to argue for and justify or try to justify: that a person be detained for a period of seven days instead of for a period of 48 hours. I cannot speculate usefully any further on that in the absence of any attempt, as yet, any effort at all by the Minister to justify precisely the need for that power.
I would like to conclude then by saying that to me the essence of what we are doing in this and the other House, in considering this resolution for a declaration of national emergency is this we are considering a proposal from the Government that they want power to bring in legislation which is beyond the bounds of our Constitution, for which our Constitution is supended, because of the urgent and emergency situation in the country. This is quite distinct and different from statements about the seriousness of that situation. It is a technical legal matter and our function is to try in as miserly and as careful and as cautious a way as possible to identify precisely what the power is, to ensure that we give only the power that is necessary, not a broad power that may be abused or may be thought to be going to be abused, so that it would undermine substantially the very structures and processes and respect for the law and for the courts system the Minister is concerned to protect and to strengthen at this time.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: I shall endeavour to make my remarks as brief as possible as I know a number of Senators wish to contribute from this side of the House on this important motion. I am also anxious to contribute rather early in the debate in so far as a number of Labour Senators  have spoken so far, particularly Senator Michael Mullen and Senator Roddy Connolly. In what appeared to be a carefully prepared text, Senator Connolly justified the present motion and the two proposed pieces of legislation which derive from it on grounds of rather narrow political pragmatism. The view he offered is his personal view, and in so far as I represent definite and substantial opinion within the Labour movement it is not my opinion. Senator Mullen spoke on some more technical implications of the legislation which derives from the motion as it might affect the trade union movement and this is something to which I will return in the course of my remarks. The fears which he expressed and the assurances which he reasonably sought are assurances which I would seek. The concern which he expressed is the concern which I feed.
I would like as well to say that I share very much the feelings of those who made an appeal for a debate which would not be a narrow, opportunistic, political debate but would be a good political debate in so far as we teased out all of the issues of what was involved in this legislation. I find myself unhappy however with those people who on the one hand in the early portion of their remarks have made such a plea and then proceeded to ignore it totally in offering what is a peculiarly simplistic analysis of this motion and the debate which surrounds it. For example, one Senator made a plea to keep politics out of the debate and later on suggested that this debate is really about those who pussyfoot with violence and those who want to stamp out violence. The suggestion of such a simple dichotomy that you are either in favour of the Provisional IRA, or want to stamp out or disapprove of their actions, or because you are opposed to the quality of a particular piece of legislation you are thereby somehow or another condoning their actions. This is not only simplistic but in so far as these speeches will be  reported in the public Press and will be commented on by the public at large, it is emotional blackmail of the worst kind.
I share the feeling expressed by Senator Robinson last evening when she said that for far too long in this country we have not articulated in a coherent fashion, in an open fashion, the necessity of ensuring civil liberties. Many of us who are concerned with civil liberties are very anxious that it be realised that we deplore terror, fear and violence, that we want in fact freedom to work for a decent and qualitively better life for all of our people, but that we are concerned that a democracy will be a democracy in its fullest sense. There are texts which can be quoted. Indeed, one distinguished writer, Professor John Maurice Kelly, suggested in his book that it is a crucial question for a democracy as to whether in certain circumstances it might in the name of a defence of democracy destroy democracy itself. These are the kind of questions which face us. It is becoming clear to me now, as people develop their arguments here, that the kind of suggestion that is being put is that institutions such as the State are being set up on one side as being absolutely necessary for defence, while their human content is being ignored.
Standing opposite the defence of institutions are the right of individuals. That is what this debate is about. My own view is that when a democracy seeks to defend itself it cannot so easily divorce the retention of the rights of individuals from the substance and development of institutions. It is a most important question in the history of political philosophy. It is a question which distinguishes conservatives from liberals. More importantly and more dramatically, it is the question which distinguishes both groups from socialists.
The questions which are crucial and need to be addressed in the debate are: what is the historical context in which a state of emergency is being declared? What are the  elements of the present atmosphere of violence and terror in this country in which that state of emergency is being justified?
If one agrees that there is a situation of terror and violence, and I agree that there is great uncertainty and fear, what would be an adequate response? That response has to be assessed by a logic which is not the narrow logic of political opportunism in present circumstances nor by anything which might derive from present circumstances. We must ask too: what are the philosophical implications of a response which asserts institutional sustenance above and beyond individual freedom and expression? Behind the response we must look for the political vision of the person who designs and drafts such a response — for example, what is the philosophy of those who suggest that the institutions of the State are in danger and need to be protected at any cost. I should like to refer to an intervention of the Parliamentary Secretary to the Taoiseach. He suggested that the people will pay a high price for the elimination of savagery. That was a most interesting intervention and a most interesting revelation in many ways, an acceptance that there is a price to be paid, an acceptance that the price is high, a correct analysis that savagery is afoot and that such will be used to justify legislation that will have a price in terms of civil liberties.
When one asserts that one wants peace and wants to eliminate savagery one must ask oneself the question: is one to defend the institutions of State at any price? Is one to eliminate savagery at any price? These are crucial questions. There are of course those who suggest that the State or its institutions at any time are in the process of change, or perhaps more imporantly, should be changed. Looking at the institutions of State and of their related institutions in economic, political, social and cultural life, many of us see them as being institutions which have served an elite within the society historically rather than the greater mass of the people. May I take the most extreme example, culture? Very often when people who represent the most institutionalised version  of culture speak of it and literature they are representing for the part a parasitical, non-dynamic, and static concept of literature itself which lives off the experiences of the great mass of people. Even within literary criticism and practice in this country at the present time there is a movement away from such a parasitical and static concept of literature towards a more dynamic one which will engage the critical contradictions of the period, the critical experience of the people who are described.
At a more mundane but more important and human level, the provision of housing, the operation of the procedures of government on many occasions do not have a wide popular participation, nor is there a wide popular discussion surrounding actions, decisions and suggestions which are made. What, then, does one do? One always realises that these institutions as such are in an imperfect state and are properly the subject of security, are properly the subject of a demand for change, and are properly replaced often by other and better institutions. We can assent that the institutional profile of the State should not and could not be acceptable in a static version; that such a profile is at its best when it is moving forward towards a more appropriate expression of human needs, of human assertions, hopes and aspirations. Given that, we pose the question: what is an appropriate critical response to the institutions of the State, given the circumstances in which life is lived? It is here that one of the classical dilemmas of the liberal position arises. When pushed far enough the liberal will immediately say that he needs the courts to introduce restraint, indeed repression, to sustain the circumstances in which liberalism will flourish. It is the central flaw of the liberal philosophical position that one must repress so that liberalism will be expressed probably given in its most dramatic expression in the later work of Herbert Marcuse, who speaks of a notion of limited tolerance.
Someone might ask: what has all this to do with those who are killing, maiming, knee-capping, threatening people and so on? May I make a  plea in response to that? Let this not be narrowly opportunist or political debate. Let us not indulge in emotional blackmail. This kind of consideration is necessary because, after all, the Seanad is responsible for the quality of law as well as being responsible for the immediate and short term and narrow implications of law. It is too easy to take immediate circumstances that are visible on the ground and suggest that they are a substitute for analysis. Unfortunately, it is also perhaps, one of the worst aspects of Irish political life as it has been expressed since the foundation of the State that very often to ask what are the philosophical assumptions, what are the political assumptions, that lie behind a particular political stance is regarded as an intellectual and rarified endeavour. It is nothing of the kind. It is crucial and it is necessary for someone, like myself, who cannot support this legislative package before us. I should like to make perfectly clear the reasons I am intellectually convinced of the necessity for the action I have to take.
I should like to make some comments on the points I made earlier. I address myself to the people who will be presenting this debate in the public media. Above all else, I should like to say that in the brief time I have been involved in politics here I have always said that life was more important than territory. I have said that social change was more important than territorial acquisition or integration. I have always said that the achievement of social aims was the most important aspect of political philosophy and of political purpose. For that reason I have been, I am and will continue to be a socialist. It is for the reason that I believe that politics is at its best when it speaks of the circumstances in which life will be lived that I have always opposed violence. I am not a person of violence; I have never condoned terror or the extension of fear in any part of this island. I say that at the same time as I can say that I  do not believe one can justify even one modicum of repressive legislation towards the person one seeks to deter from an act of violence itself.
I would remind the House of what I think was the most important sentence in Senator Robinson's speech. She said that the real battle was a battle for the minds and hearts and will of the people. Anybody who has studied the history of criminology, anybody who has studied the effect of the use of sanctions in society in different ways knows that harsh sanctions themselves are no deterrent. There is a question I hope the Minister will answer when he comes to reply to this motion. Is there any evidence that legislation and measures which as are proposed actually work and deter in any democracy? Deputy John Maurice Kelly interrupted a number of times Senator Noel Christopher Browne and asked was there any society that justified knee-capping or that justified murder. I ask a question: is there a society which shows that the taking of powers such as are proposed actually works, that it deters violence? I humbly suggest, in fact, that it does not. I agree rather with the spirit and implications of what Senator Robinson said when she suggested that the real battle is a battle for the minds, hearts and will of the people.
We have been evasive in dealing with the subject of violence. The very people who speak about defending the institutions of State, who present a case which defends in its most extreme form this kind of legislation, who speak about the necessity for an end to violence, refuse to speak of violence in general. I have said that I totally deplore violence in all its forms, and I would go much farther than they do. I would include within my general criticism of violence, the violence of the institutions which they seek to protect at any price, and on occasion, as they have admitted, at a high price. The varying institutions, such as the schools of this country, the different educational establishments, the media itself filling the minds of our people with trivia, avoiding any critical analysis of the importance of life; the schools themselves, for so long giving a wrong version of history glorifying violence in all of its forms — all of  these institutions are perpetrating a savage violence on the minds of the people. That is perfectly clear. Often too, even such a sensitive social entity as the family itself is surrounded by an elaborate paraphernalia of legal requirements which debase the female partner in that union, which are a source of violence to the woman who is a partner in the institution itself. This is something which we have not reformed yet.
It is for all of these reasons that it is extremely important that we retain a critical capacity within society itself, to allow itself the opportunity regularly to take all of its institutions and try and analyse where violence occurs, to eliminate it. To do such a thing is, of course, a magnificent political process; it is a magnificent political aim; it is the central position of people who subscribe to a socialist vision of society. I do not want to be opportunist politically and I understand the position taken by the Fianna Fáil Party in the debate so far. Their argument is quite different from mine. Their argument is that legislation is there which would have accomplished what the Minister is now attempting. I, of course, totally deplore all of the repressive legislation which that party put on the Statute Book. I am not telling them anything new. I deplore it for all of the reasons I have given.
One comes now to look at what will be the implications of this legislation. The most important thing I have said so far is my invitation to those who give an account of this debate to make certain that a simplistic dichotomy is not utilised as the main thrust of this debate. This debate is not for and against the IRA. It is about the appropriateness, the adequacy, the necessity and the implications of the motion. There will be particular issues when we come to discuss the pieces of legislation themselves and the measures taken under these pieces of legislation. Many people who verbally subscribe to rationality, particularly those of a conservative bent, will frequently fire rationality away and invoke emotion as a major prop for their arguments.
I have spoken about my general abhorrence of violence and the political  expression of that. I want now to refer to the Minister's speech. I know that he, as Minister for Justice, responsible for security, has more than the average concern and more than the average feeling for the victims of violence. He has listed the number of acts of violence in his speech in introducing the motion. I completely agree with him in his condemnation of those acts. The statistics presented are statistics of shame in any island, the statistics of those killed and of those wounded. The two instances mentioned, including the murder of the British Ambassador, I condemn with him. However, I am making an appeal that these statistics of shame, as I have described them, might not become the circumstances in which those of us who are making a plea for civil rights, for the possibility of social change in society, for the critical tension which is so necessary for change to occur in the right direction, would not be branded as people who somehow or another condoned the quality or the nature of these acts of violence.
Earlier I suggested that we would have to question the appropriateness of the response to the conditions described in the Minister's speech and the adequacy of that response. Given that that kind of change, and the kind of society I would want has not emerged, perhaps it is not emerging, the opportunity to outline it as it should happen, to politically contest elections on the basis of an alternative kind of society than in that in which we live, is something which is possible for me within the Constitution. Often, indeed, through such channels I have been able to offer my opinions in an unpopular context, and I respect and value that freedom. It is a freedom which allows me to indicate my own attitude to the passage of this legislation. I want such freedom for every individual, not only for the majority but for every individual. It is a logically false position to suggest that this debate is an assertion of the rights of the majority against the rights of a violent minority.
A person who is guilty of a crime for any one of a number of reasons has rights, which are guaranteed, of access to an established legal process  of definitive legal procedure. In the history of law it is something that has developed in Europe after the 18th century. Given that one wishes to be able to criticise a society and speak of the necessity for change, where does one look for the quarantee of this opportunity? Whether or not one approves of it, the greatest guarantees one has are in the Constitution. I am sure the many eminent and distinguished lawyers in this assembly will forgive me if I suggest that a crude summary division of the characteristics of constitutions, particularly the Irish one, is that it has two broad aspects to it. One is an expression of social aims, some of them rather narrowly Catholic and of which I totally disapprove. The other aspect is a system of guarantees which assure certain freedoms to the individual in a number of ways.
I have always regarded the 1937 Constitution as a most ambiguous document. It is a document which, for the academics who discuss it, is rather curious. People have wasted a great deal of time in asking whatever influenced it. It is clear that some of its provisions were influenced from a certain direction, be that influence passive or otherwise. The individual who inspired it took charge of the moral vision of the entire community, past, present and future and decided to establish his particular vision in certain Articles which these Houses and the people of this country should speedily dispose of.
One of the sources of ambiguity are those sections which guarantee freedom. One one hand it has a number of social aspiration clauses which are largely rhetorical. It would like to see everyone equal, never being hungry and later on its author was to suggest dancing and enjoying themselves. The property sections are in total contradiction in every way to the social aims. The history of this State has shown that the property sections have been invoked by a greedy élite who have made nonsense of the social aspirations of the Constitution. But, this is for another day. We are discussing the invocation  of Article 28.3.3º of the Constitution and I intend to confine myself to the motion and not to trespass on the other two pieces of legislation as some Senators have done who offered comments more appropriate to the Second Stage of those Bills. I intend to contribute in a more lengthy way when those two Bills are discussed. I will confine myself to the implications of the suspension of the Constitution.
The most important aspects of the Constitution are those aspects of it which guarantee certain liberties. Let us be clear of what is happening to-day — Article 28.3.3º is being invoked and deriving from that invocation the Constitution is being suspended. This makes it possible to introduce one other important piece of legislation — which has probably just one crucial section — the detention of people without specification of a charge for seven days rather than two days. This is probably what will be the nub of the debate when we are discussing those pieces of legislation.
I have referred to the ambiguity of the Constitution itself in general but Article 28 uses phrases which are not so easily understood. We have an idea of what “time of war” might mean. But there may well be some confusion as to what is meant in the Article by “the vital interests of the State”. I look, for example, at a distinguished conservative such as Senator Alexis FitzGerald and I think of what the meaning of——
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: Call me by my name; do not describe me; I will describe myself.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: ——“the vital interest of the State” is? I hope Senator Alexis FitzGerald clearly establishes, when he comes to speak, that my description does not apply. When it comes to the vital interest of the State, conservative will naturally think that the defence of institutions is sufficinet. I know that I have been boring you all for a long time by talking about conflict characterising society rather than concensus; about society being a dynamic entity of the necessity for social change, of the necessity of developing  and extending critical awareness within society. It bores a number of people and I am aware of that, but unfortunately they have to put up with me whether they like it or not while I am here.
To my mind, the vital interest of the State at any time is its ability to tolerate critical comment. Indeed I remember a time within my own party, the Labour Party, when we were going to have a concensus at any price. Thankfully the majority of the Members of the party rightly asserted the necessity for a political movement such as ours having the possibility of regular critical discussion of issues. In fact, it is the hallmark of the Labour Party and it is this which makes it qualitatively different from the other parties.
Given the invocation of Article 28, what will happen? If the Constitution is suspended and the legislation which derives from the suspension is then passed, we are forced to rely on a number of guarantees. What kind of guarantees — guarantees that are no longer constitutional guarantees, that would not derive from any notion of internationally accepted civil liberties? Indeed they are not guarantees as such but are more accurately indications of good intention. We are told that this legislation will never be used against anybody but the IRA. This is not expressed in the legislation. We will have to take a Minister's word for that, the word of the Cabinet. We are told that this power will never be abused. Again, good intentions can never be a guarantee of something that is not expressed in legislation. We are told that this measure is only temporary; it will not last for all time. An indication of intention not expressed in the legislation.
I invite the Irish public, and I do so as a citizen and a non-lawyer, to balance the guarantee of a Constitution against the stated intention of a Cabinet or a Minister. If you balance guarantees against intentions, my own view, as somebody who believes in civil liberties, is that one must always protect, even in times of greatest threat, terror, and fear, the rights of the individual. One does that by sustaining those guarantees in the  strongest possible form, which is probably constitutional form.
Let us look at the intentions. It will be used solely against those who are currently perpetrating acts of violence. The logical extension of this is that in the legislation one would list the activities of the Provisional IRA. I have said I condemn the activities of this organisation and that I condemn violence in general. I am in favour of increasing the penalites for the crimes of which they are guilty. I wish it were done. Anybody who kills anybody, threatens anybody, or puts them in fear deserves to be punished and punished well. Let us take it that these powers will only be used against those who are likely to perpetrate violence. What definition will be given to violence? Later on in the other legislation the word “incitement” is used and reference is made to “public safety”.
Given that a situation might arise in which people would find it appalling that the ostentatious wealthy would flamboyantly brandish their wealth — vulgarly for the most part as they do in this country; most of them are not too long wealthy — in the face of a large army of unemployed people, maybe somewhere between 100,000 and 200,000 people, members of the unemployed people might decide to take exception to the ostentatious and vulgar expression of wealth and suggest that the resources of the State have been inadequately disposed of and wrongly used. Suppose they decide that they will hurl insults at the ostentatious and vulgar rich, shout at them and upset them. Maybe they might even cause a lady in evening dress to lose a shoe or effect some important social disaster like that, will that qualify as an upset? Will that be a threat to public safety? The vulgar élite will say “We were not able to go to our dinner dance without these people offending us”. The unemployed might even hold a meeting.
I do not believe it is right to use such terms in law as “public safety” “violence” and “threat to security” without specifying what in fact you  mean by all those terms, without specifying the degree to which you want the elimination of savagery at any price. From where you derive that term “at any price” needs to be expressed. I might say, to be consistent, if ever I was responsible for bringing in law at any time, the people know at least even if it is only from this morning, the kind of philosophical assumptions upon which I operate, the kind of political aims from which I would derive political action. I do not know what the conservative philosophical position is in this country. I do not know what the political aims are of many of the people who are active in political life and who are very popular. Indeed, many of them have told me that this avoidance of commitment to any philosophy is the secret of their success; the avoidance of any ideological commitment; the avoidance of, as they put it, “any isms” “Isms” were always deadly.
Professor Quinlan Professor Quinlan
Professor Quinlan: Respect for the majority.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: Yes, respect for order and institutions. I should like to answer Senator Quinlan. It is his philosophical position that the rights of the majority take precedence and are not necessarily congruent with the rights of the minority. This position does not have any systematic philosophical justification at all. It is an argument that has been used by many repressive regimes in different parts of the world. The only thing about it is that in many cases they differ in so far as some of them manipulate a majority, others go through the motions, in fact, of having elections.
Professor Quinlan Professor Quinlan
Professor Quinlan: Would the Senator agree that the majority has some right?
Mr. Horgan Mr. Horgan
Mr. Horgan: The women are in the majority in this country.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: Given the activities of Senator Quinlan, children might be in a majority as well. I hope the Seanad is not going to disgrace itself by indulging in the anti-intellectualism  which has brought so many people such tremendous success in the history of this State so far. Many of the people here have had an opportunity of which the majority of the population have been deprived. Some are, in fact, looking after the minority in the universities and they would want to be aware of their position.
I have mentioned the circumstances in which intentions replaced principles and guarantees. Intentions as a substitute for guarantees is not an acceptable proposition to me. We are told by the Minister “We will never abuse this legislation”. The Forcible Entry Act is on statute. It was invoked against a number of people such as students. Deputy Brendan Halligan in a recent programme on television suggested that the state of emergency had not been abused since 1939. I was grateful to him for drawing my attention to that date because I then began to examine the repressive legislation which had been introduced in the long Fianna Fáil period in office and to look in the Official Report at the suggestions for the necessity for this legislation. Unfortunately, through some strange omission, Senator Halligan did not mention that one of the characteristics of repressive legislation in this State is that it does not tend to be repealed. The suggestion that this legislation which derives from a state of emergency is only for a period is not convincing historically. The suggestion that a state of emergency will be repealed shortly perhaps has some force because it was a different Cabinet which brought it in than on the previous occasion. But if one is to look at it historically, it is not convincing at all. The notion that it will only be used against the Provisional IRA——
Professor Quinlan Professor Quinlan
Professor Quinlan: The Provisional IRA have not been mentioned anywhere.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: Perhaps it is due to the peculiar accoustics in this room but Senator Quinlan seems to have missed the central thrust of my argument. The precise point which I made in my long introduction to my speech was that one of the major difficulties was that the perpetrators of violence were not specified, the Provisional  IRA were nowhere mentioned. One of the most glaring weaknesses of the legislation is precisely that one. Senator Quinlan might surprise some of you. He is revealing an interesting attitude. He reveals something, important to him—the distinction between a professor and a junior lecturer within the university. As a scholar I subscribe to a critical vision of scholarship. Senator Quinlan is an expression of one of those curious anachronistic dogmatic traditions within university scholarship. He represents it well.
The suggestion, therefore, that it will only be used for a time, and against certain groups, I have disposed of. I could specify other occasions in which legislation has been used, not against the Provisional IRA, but used when it was expedient. Senator Michael Mullen mentioned last evening an occasion when the Offences Against the State Act was used against two trade unionists in Navan. This can be put simply, you suspend the Constitution and you add to the existing corpus of legislation which restricts liberty. You have no control over the circumstances in which that legislation will be used. It is very easy, at the moment of passing the legislation, at the movement of a motion, to suggest that it will never be used except on rare and the most appropriate of circumstances. We know that at the end of the day, when no other measure is available, it will be invoked. For that reason from the civil liberties point of view, I must always oppose such legislation.
I referred to a comment which Senator Robinson made near the end of her speech when she said the real battle is a battle for the minds, hearts and will of the people and I questioned the adequacy, quite early on in my speech, of the use of restraint to stamp out violence. A distinguished criminologist three years ago, writing in an academic journal in Ireland, suggested that the use of excessive preventive measures was, in fact, like putting out a fire with a blow lamp. The evidence from those who were interested in criminology is that the putting of people into prison, the threatening of people with detention is no adequate deterrent against  the commission of such acts. What would be much better would be to invite people to a decent conception of life, to a conception of politics where human life itself was regarded as valuable. Let us be perfectly clear here about this.
To return to the question of violence again, the very people who want to bring in the harshest measures against violence when it erupts in its most blatant forms are precisely the people who subscribe to the necessity, for example, of a State having commercial advertising on television and films which glorify violence itself, when the national media should be used to alter conceptions of life, to show the tremendous value, potential and hope that surrounds the life concept itself. Of course it can never happen in a private enterprise, commercial world, where the justification of a programme going on is whether it will have so many people watching it, so that you can advertise cornflakes or something immediately after it. This is part, of the vulgar paraphernalia of the private enterprise world. Is it not a violence to say that your children can never be exposed to adequate programmes, never to have an adequate educational television and radio service? Is that not a violence in its own way?
I have referred earlier, a Leas-Chathaoirleach, to Senator Connolly's contribution and I just want to return to it briefly again. I do not think that in the discussion of this motion or of the pieces of legislation to which it relates that a justification of such can be derived from present circumstances. A political action contains within it the seeds of past analysis, of past events. It represents an attitude to history. It is an expression of historical thought of the past in the present. More importantly, it lives long after the person who introduces the legislation. Legislation is something which does not affect only the individual who introduces it. It is something that is for a longer period, and the assessment of the adequacy of law is an assessment that is most appropriately made against the longer sweep of history rather than the shorter run of events. This is most important.
 Therefore, when one comes to assess what is adequate and what is appropriate, one is involved in what someone else has called the principle of proportionality. That is the balance which one will strike between the rights of the individual and the measures which are necessary to sustain institutions.
Many people have pointed out that it is important not to over-react. Among the people who have been quoted as expressing such a viewpoint is Lord Gardiner. Indeed, Kader Asmal in his article in The Sunday Press of 29th August, 1976, quotes Lord Gardiner as making what can be regarded as an argument against the dangers of overreacting. I quote Dr. Asmal:
In other words, every citizen must judge whether the measures proposed by the Government are required by the situation we face and provide sufficient safeguards for individuals. Lord Gardiner's warning in 1975 about emergency legislation in relation to the North should be borne in mind as a warning against an over-emphasis on security, and ignoring political factors that give rise to security solutions.
Lord Gardiner is then quoted directly by Dr. Asmal, and I quote:
The continuing existence of emergency powers should be limited both in scope and duration. Though there are times when they are necessary for the preservation of human life, they can, if prolonged, damage the fabric of the community, and they do not provide lasting solutions.
That may well be, but the Minister, who is a careful lawyer, will want to give precise assurances to this House about the implications of the language used in both of the Bills. Perhaps he may wish to reply to requests for information of what would be regarded as sufficient or appropriate scope, of what would be regarded as sufficient and appropriate duration.
History is against him if he be silent because, as I have said, the duration of the last emergency shows what is likely to happen. The uses to which  the legislation has been put, although it was expressed it would never be so used — is against him as to scope. Indeed, I think the principle of proportionality, not my own at all, was adverted to by the Minister for Foreign Affairs. Dr. FitzGerald, when he spoke about the necessity of striking a balance. Dr. Asmal writes of the Minister's assertion. I quote again from The Sunday Press of 29th August, 1976:
All states will take measures to defend their integrity, but in a democracy the element of propertionality is important because the price paid to defend democracy may otherwise be too high. For, as Garret FitzGerald said in 1972, it is desirable to give the Government of a democratic state the powers that are necessary to defend a democratic system, but undesirable to give to a Government powers that go beyond what is necessary and which are a danger to the democratic system we are seeking to defend.
It is my view that the corpus of repressive legislation which we have at present is unnecessary. It is my view too that what is necessary is a systematic attempt to create a public awareness of the value of life itself. I believe that this can be brought about more through an educational process than through a legislative process. It seems to me to be over-reaction to suspend those guarantees which exist for the individual in the Constitution on the justification of present circumstances. It is necessary for me, too, as a Member of the Labour Party, as its vice-chairman on two occasions, as a member of its Administrative Council for eight years, to assert what is the feeling of the people with whom I have contact within that movement, who are many, to make clear that the position of the Labour Party is that we abhor violence, that we will continue to work for social change, that we value those institutions and those aspects of the Constitution which afford us the liberty of putting forward our analysis, our demands for an alternative society. It is my belief too that present circumstances are not an adequate substitute for the longer historical vision. It is against that that we  have to balance our actions and decide what we will do.
I do not believe that in this debate we are well served by establishing a dichotomy between those who, in the words of Senator Michael J. O'Higgins yesterday, “pussyfoot with violence” and those who do not. That is not what the debate is about. The debate is about the implications, the circumstances and the justification of a state of emergency. It is about nothing else and it is inconsistent, as I have said already, to make a plea to empty this debate of politics and then to go on to justify one's position by the use of arguments and facts that are tantamount to emotional blackmail. I hope we will have no more of it.
I have another hope, and this is something that is much more important because it deals with opportunism. I agree with the women who want peace, but let us hope that the women and what they are trying to do will not be used by politicians who have had many opportunities and who are given opportunities under different constitutional documents to make their point of view known. What the women are trying to do is a reasonable expression of what many of us want and I admire them for what they are hoping to achieve. I have refrained from commenting on their actions lest I join what might be regarded as an opportunist bandwaggoning by politicians.
Senator Connolly has said that a temporary abandonment is justified. The history of socialism itself teaches us, general history teaches us, the political system teaches us, that such is not the case. On many an occasion a regime has justified its actions on what it called a temporary abandonment of guarantees of civil liberty.
I am not casting any aspersions on the present occupant of the office of the Department of Justice, a man for whom I have a high respect; but I am saying this: that in general terms a temporary abandonment of fundamental civil liberties is hardly ever justified. A long time ago Barra O Briain, a distinguished lawyer, hardly a radical, writing about the Constitution, had this to say in page  146 of his book The Irish Constitution:
The Constitution of a country is a sacred thing not to be lightly tampered with or changed. It is the original source of all jurisdiction in the State, and as regards the whole code of law it is the one and all sufficial root of title. It is on a higher plane than ordinary laws, and to mark this fact in most modern States the work of amending the Constitution is reserved to a special organ, distinct from the ordinary legislative organ.
This peculiar sanctity of Constitutions has been recognised by the Oireachtas, even though the power to amend the Irish Constitution is provisionally confided in the Oireachtas itself. It was recognised that amendments of the Constitution which were to be made by way of ordinary legislation, ought to be made in a particularly solemn manner; and there was a consensus of opinion that each amendment of the Constitution should be set out explicitly and in detail and in a separate Act.
He was writing, of course, of the earlier Irish Constitution. Speaking of an amendment to that document and the implications of indulging in constitutional amendments he had this to say when he spoke of the Public Safety Bill which became law on 11th August, 1927:
This measure was designed to defeat a conspiracy which the Oireachtas believed to exist and to be directed against the very existence of the State by persons who had refused to recognise the Constitution ever since it came into force.
He went on to discuss the powers which it gave and I quote from the fourth paragraph of page 147 of his book:
A vague and general amendment such as this, undoubtedly tends to lower the Constitution in the eyes of the Nation.
He said of that particular Act:
This Act would have enabled an unscrupulous Executive practically to suspend the Constitution at any time during the time it was in force.
 Now the argument is not about what is likely because that would be an argument about political intention. The argument is about what is possible. The argument about what is possible is an argument about what is law and arises from the broader spectrum of the justification of the rights of the individual. Given that, which is not a narrow socialist conception, given such a consideration as fundamental civil liberties to agitate for change, then a temporary abandonment, to use Senator Roddy Connolly's phrase, is of course never justified. There are rights in the Constitution which to my mind are never “up for grabs”.
I conclude by reminding myself of Deputy Kelly's remark: “The people will pay a high price for an end to savagery”. I say this: an end to savagery, yes; but let us be clear about what cannot be given away. Late at night in public houses in Ireland, where rationality is occasionally discarded or abandoned, people have muttered and indicated support for people who are involved in acts of savagery, in acts of violence. It is time in all areas of society that people, not only the women of this island, but the people in general, stood up and were counted on this issue and said that life was important and that the taking of a life was never justified. I refer to the taking of a life in any circumstances, even within the process of law itself—the taking of life, for example, through hanging has been abandoned in most democracies and rightly so. It is time the people generally expressed their abhorrence of acts of violence. It is this general expression of abhorrence about such acts which will bring about a change in will and in conviction in this country. People will then begin to talk about the politics of life rather than the politics of death. The high price to which Deputy Kelly referred is terrifying in its implications. The price of the suspension of the Constitution is too high. The effect of the suspension will be to suggest that through such a suspension one can automatically restrain people who  are involved and who are committed to violence and to a violent way of prosecuting their aims. It is overreaction.
It is for these reasons as well as for the deeper reasons that it is necessary to retain and to tolerate within the society critical voices which will allow it to change. Here again I distinguish this critical presence, this necessary dynamic in society, from the activity of people who are asserting a dogmatism from the point of a gun. That is not critical change. There is the danger that in dealing with that violence you make the practice of criticism itself impossible. That is a real danger. Quite carefully and calmly I say that this is not the appropriate way to deal with the circumstances in which we find ourselves.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: There are a number of things that we can agree on in regard to this measure. We can agree that the security position has deteriorated in recent months and we can agree that there is a problem which must be dealt with and does need additional measures. We have asked the Government in the amendment which we have put down to take all necessary and appropriate steps to combat and defeat subversion and the activities of unlawful organisations. I should like to emphasise the fact that we have talked about appropriate steps. It is quite clear to all of us that the Provisional IRA and the other extreme organisations have lost virtually all support as far as the public is concerned. This has been shown again and again electorally and has been shown very dramatically in the last few weeks by the peace marches which have taken place. Unfortunately, as they lose support they seem to get more desperate in their measures, and their actions become more and more reprehensible. There is no disagreement in this House in regard to the condemnation that one should make of these unlawful organisations or the condemnation of the actions which they are carrying out.
The difference arises in regard to how we should approach this problem.  The difference arises as to what measures are necessary and justifiable in the circumstances. It is very interesting to read some of the speeches that were made by present Ministers in regard to the amendment of the Offences Against the State Act in 1972, interesting because at that time they were very concerned about how far one should go, how far the Houses of the Oireachtas should go in dealing with a situation of this kind. It is interesting because they disagreed with and criticised measures which do not go anything as far as the measure which is before us at present; interesting because they criticised measures under which most of the convictions which have taken place since that time have been made, convictions which the Government take great credit for and boast about.
However, I will not go back on that except to emphasise that the measures they criticised at that time, and which they said went too far when one had regard to human rights and the freedom of the individual, did not go nearly as far as the motion before us at present.
We have to consider in this motion what is necessary and what is merely window-dressing, what is merely a gesture and whether or not that gesture is well meant or is merely political posturing. The motion before us asks this House to declare a national emergency and if we are to look at the Constitution and interpret Article 28 a national emergency is only permissible, is only justified, is only appropriate, if the preservation of the State is at stake.
We have had a number of speeches from those who attempted to defend this motion. I am glad to say most of those who have spoken have not attempted to defend it. Those who did attempt to defend it used various phrases, phrases about the serious situation in which we find ourselves, about the fact that our interests in this part of the country were now becoming seriously affected, about various unlawful activities, about the natural revulsion against murder. All of these things are to be deplored, but they do not necessarily amount to a  situation where this kind of a declaration is justified.
It is not enough to say that events are taking place which we deplore and consequently we must have a declaration of this kind of emergency. These events have been going on, to a greater or lesser extent, for the past five or six years. When did the national emergency arise? Did it arise yesterday or the day before? What is the essential difference between what has been happening in the past month or two and what was happening a year or two years ago? It is only something significantly different taking place that would justify the Government in asking for the declaration of a national emergency.
There is a suggestion that the Government are taking this action because of the bombing of Green Street courthouse a few months ago, or because of the murder of the British Ambassador, but which of these actually precipitated that emergency? If it was the attack on Green Street or if it was the murder of the British Ambassador, why was a declaration not asked for at that time? An emergency suggests urgency. It suggests that something of very outstanding significance has taken place. If the Government think a national emergency exists, then one would have expected them to act quickly, to act at the time the particular event took place that called for that declaration.
There is an air of unreality about this debate, an air of unreality about the introduction of this measure, of recalling the Dáil and Seanad to introduce it at this time when, in fact, both Houses will probably be back in a month's time and measures of this type could be taken. There is an air of unreality which has not been dispelled and has not been justified by the speeches made supporting this motion.
I should like to contrast the debate on this occasion, the debate on this request for a declaration of a national emergency, with the last national emergency, the last time the Government of the day in 1939 asked for a declaration of emergency. On that occasion both Houses sat all night, sat for several days introducing emergency  powers, and there was, quite clearly, a national emergency. Nobody disagreed. Now we are doing this in a leisurely way. We are rising for tea and lunch. We are rising at 8.30 in the evening. There is no sense whatever of the urgency of the crisis that should accompany a request for a declaration of a national emergency. There has been no explanation, and no conviction on the part of Government spokesmen in their request for this declaration.
A declaration of emergency normally would accompany a request for wide powers to deal with a drastic situation. If that drastic situation existed, and if wide powers were necessary as, for instance, happened in 1939, the declaration of the emergency would be given quickly and without any difficulty. Again, if you go back to 1939 when the first declaration was sought, it took four or five minutes. There was virtually no debate on it. It was asked for. The situation was clear and it was given in five minutes. The debate takes approximately one column of the Official Report. If there was an emergency in 1976, a real emergency, an emergency the Members of this House and the public accepted and recognised then the declaration which the Government are now asking for would be given in five minutes, and the powers that were necessary following from it would probably take a good deal longer because they would be more detailed, but they also would be given.
The Government are asking us for a declaration of an emergency not so that they can introduce wide measures to deal with a drastic and desperate situation but to pass in effect a one section Bill. All that is following the declaration is a Bill which asks us to do one thing, to extend the time a person can be detained from 48 hours to seven days. Nothing else. This very very serious constitutional step is being taken to do that. The House is being asked to accept this motion so that the Government can introduce one small Bill giving them one extra power.
 It is inconceivable that the Government should take this step for the sake of passing one Bill. It is so inconceivable that one cannot help suspecting that the Government have other Bills in mind. The Minister was interviewed on television last night and he said categorically that the Government had no further Bills in mind. If the Government intend to introduce any further Bills, to take any further measures arising from this declaration, they should certainly tell us that. They should be frank with the House. They should take the House into their confidence in this serious situation, if it is as serious as the Government say it is, and tell us exactly what they intend to do and why they need this declaration. If the Government and the Minister are being frank in saying they do not intend to do anything else, then it is ludicrous that the declaration should have been sought for the purpose of one small Bill containing, in effect, one section of any consequence.
We must, again and again in this debate, at the risk of repeating ourselves, emphasise the importance of the step we are taking, because the ramifications of taking this step are very serious and far-reaching. When Senator Robinson was discussing this motion she said we should be like misers when we were giving away to the Government, to the Executive, anything that affected human rights, the liberty of the individual. She said we should give every piece of gold, every coin very reluctantly. It was a very interesting and very vivid description of what we are doing. Perhaps she did not go far enough. What we are doing by agreeing, if we do agree, to declare a state of national emergency is giving the Government the key of the safe because once this declaration is passed the Government can pass any Bill they like provided it is declared to be under this motion and that Bill cannot be challenged in the Supreme Court as being unconstitutional.
It is only when it is quite clear that a national emergency exists that the Government should seek a declaration of that kind. When I say “quite  clear” I mean not merely quite clear to the Government but so clear that all sections, all parties, all Members of both Houses, would agree that the situation exists. There will always be one or two who will not agree to anything but, by and large, there should be virtually unanimous agreement that a situation exists and that a declaration of national emergency is necessary. The Government should not ask for this unless that kind of situation exists because it is such a serious step to take. From the constitutional point of view, it is such a far-reaching step to take that a Government should not push it on to the Houses of the Oireachtas unless it is clear to all concerned that the step is really necessary.
We have not got that position today. We had it in 1939. The speeches in this House—many from people who normally support the Government, many from people who are certainly not supporters of Fianna Fáil—have shown clearly that there is widespread doubt as to the necessity for the declaration of a national emergency. Widespread doubt has been expressed outside the House by many bodies, individuals and newspapers, as to whether this is really a situation in which the Government should ask for the wide-reaching powers they ask for in this motion.
I will not say very much for the moment about the provision for which this declaration is really sought—the provision extending from 48 hours to seven days the time a person can be detained. I should like to emphasise again that that provision, questionable and objectionable as it may be, is not the only thing which can be done under this declaration. If this House agrees to this declaration there is no doubt, whatever may be the present state of mind and intentions of the Government, that other very far-reaching Bills will follow. Once the declaration is passed, bearing in mind that they have a majority in both Houses, the Government can do virtually anything they want to do, provided the Bill is alleged to be made under this declaration and for the preservation of the State.
 There is no limit as to how far that can go. There is no limit to how unreal it could be from the point of view of being a matter of the security of the State. Today we are talking about security in the sense of unlawful organisations with a sense of violence, and so on, but it must be borne in mind that almost anything is possible once there is a declaration of a national emergency, and once the Bills that follow are declared to be under that declaration. Whatever may be the good intentions of the Government at the moment, once we pass this declaration, there is unlimited scope for further repressive legislation, and for legislation which could stray far from what we have in mind at present.
Senator Russell, commenting on a speech by Senator Noel Browne, discounted Senator Browne's fears and said he was not being realistic, and so on. Senator Browne was more realistic than Senator Russell because, for the reasons I have mentioned, once this declaration is made, the door is wide open for Bills we do not even visualise at the moment but which are possible. That is what must be emphasised. Senator Russell cannot have it both ways. Either Senator Browne was right or wrong in being apprehensive about how this declaration could be used in the future. We must bear in mind that the last declaration lasted for almost 40 years and successive Governments were responsible for not terminating it long ago, and the same may happen with this declaration. It may go on for ten, 20, 30 years.
We must realise that what we do today, if we do it today, may be on the statute book for a long time, in different circumstances, with a different Minister for Justice, different Governments and different situations. We are taking a step which can have very serious consequences, consequences which we cannot even visualise at present. The fears expressed by Senator Browne are justified even though they may seem a little unreal. They are justified if one is taking the long view of the consequences and ramifications of this declaration.
We must look at it again and ask is  there a state of national emergency because we cannot have it both ways. If there is a state of national emergency, and if the declaration is necessary, all kinds of things could happen, and the fears expressed about the extent of this declaration are justified. On the other hand there is not a real emergency and the declaration sought is not justified. At this stage there is no doubt in my mind that there is no justification for the measures sought. No adequate explanation has been given as to why it was necessary to ask for this merely to pass, in effect, one single section Bill. There was no conviction in the speech made by the Minister or the speeches supporting him.
As I have said, a declaration of this kind is justified only in the very special circumstances envisaged in Article 28 of the Constitution, if the preservation of the State is obviously at stake. It is justified only—and this is very important—if there is no other method of dealing with the situation. The preservation of the State, national security, and so on, could be at stake in a situation where existing legislation, existing measures, or measures possible without interfering with the Constitution, would be sufficient to deal with them.
What we have to consider here today is whether it is possible to deal with the present deteriorating security situation without giving the Government this declaration. It is justified only if existing measures, or further measures which are possible under the Constitution, have been tried and have failed. When we look at the situation before us today and look at the Bills before us, there is an obvious contradiction. It is quite clear that the possibilities have not been exhausted.
On the one hand the Government ask for this declaration and, on the other hand, they introduce the Criminal Law Bill which contains many measures which could be useful in dealing with the situation. The very fact that they have introduced that Bill shows that existing possibilities have not been exhausted. In regard to the seven days provision in  the Emergency Powers Bill, there has been no real effort to explain it or to justify it. Perhaps the Minister will say he will do that in good time when the Bill is before the House but, in view of the fact that this declaration is sought for the sole purpose of introducing that Bill, he might have done it while talking on this motion.
There is no explanation of the limitations of the 48 hours' detention. There is no explanation of how it has failed, or why it has failed. There is no explanation of what are the consequences of that failure, even if it is not entirely satisfactory to the police. Have there been serious consequences from that? There is no explanation of why extra days are required, what would be the value, the purpose of these extra days. On the face of it the extra time required is quite unnecessary in the absence of any explanation or justification. In addition to being quite unnecessary, it is highly objectionable because the provision is extending the time a person can be held without being charged to seven days. This is obviously objectionable.
It is obviously something which needs to be defended and explained because it is such a serious step that it cannot be taken unless the declaration is made and the Constitution is set aside in this respect. If we are even to look at the declaration, to give it any serious consideration, we should have been given a comprehensive explanation and justification of why this Bill is necessary to provide for the extra days. Is this merely a device to introduce a form of mini-detention to keep people for seven days to cool their heels and hope this will deter them from further action. This might be a useful administrative device but, because it is so contrary to the spirit of the Constitution, it is a device which should not have been introduced and which cannot be justified.
In my view the declaration sought by the Government in this motion is not justified. As this debate has gone on, as we have heard the various views expressed, as the situation has been examined, as the various possible  justifications have been given and, on the other hand, as the extent to which it interferes with human rights and liberties has been suggested not only have I been more and more convinced than ever that no emergency of the kind suggested exists and that this declaration is not justified; but I have become more and more mystified and amazed that the Government should have asked for such a declaration. In the circumstances one can only come to the conclusion that this motion is merely a form of window dressing, that it is merely a gesture, merely a feeling the Government have that they should do something.
The Government's record on security has been dismal. The number of things which happened in the past three years, the breaches of the security, the extraordinary things which happened certainly add up to an entirely dismal security record. There have been appalling breaches of security. It is understandable, if not forgivable that, in the circumstances, the Government feel impelled to do something or, to be more accurate, the Government feel impelled to appear to be doing something. They are past masters at making gestures. They are past masters at appearing to do something, rather than doing something. Again and again they have mistaken the shadow for the substance and again and again hoped that the people of this country would mistake the shadow for the substance.
If my interpretation is right—and certainly I feel I have a great deal of evidence to justify that interpretation —we have a big gesture, something that certainly gets the headlines, something that certainly gets the headlines abroad, and people abroad will say: “The Government are doing something. They are declaring a state of national emergency.” They are doing that regardless of the consequences which will affect this country adversely in dozens of ways regardless of the fact that they are doing something which, from the point of view of human rights and human liberties, is a very serious step indeed. The gesture is made; the consequences apparently can be ignored.
 We on this side of the House accept that there is a deteriorating situation from a security point of view and that measures are necessary. We will support the Criminal Law Bill with certain amendments. That Bill contains a number of useful sections and the existence of that Bill proves that the situation and the security problem can be dealt with to a very considerable extent without infringing the Constitution. Until that Bill has had an opportunity of being implemented and tried out, then there is no excuse whatsoever for asking for a declaration of this kind. We will not support this declaration. It is quite unnecessary. It is very dangerous and it has highly objectionable ramifications, many of which we can understand and worry about and some of which cannot even be envisaged at present.
If the Government are serious about security, if the Government want whole-hearted support in this House and the other House and from the public, if the Government are contheir own image as a law-and-order cerned only with security and not with making gestures and projecting Government, then they should drop this motion and concentrate on the Criminal Law Bill under which a great deal of useful work could be done and the present security situation could be dealt with.
Business suspended at 1 p.m. and resumed at 2.15 p.m.
Mr. Butler Mr. Butler
Mr. Butler: I, as a Member of the Seanad on this side of the House, believe I am speaking for the ordinary, law-abiding people of this State and they are the greatest majority of the population, in my estimation well over 99 per cent. They are members of all parties—Fianna Fáil, Labour, Fine Gael and many other independent parties. I know this because I move around a lot. Since the death of the British Ambassador and Miss Cooke there has been expression of vocal opinion that the Government should introduce such legislation as is now being introduced. I have spoken to many very active members of Fianna Fáil. In my position I meet them every day. They are also in agreement that  legislation should be introduced. Now legislation is being introduced and this motion is before us to be discussed by the Seanad and the Dáil. I am on firm ground in saying I support the motion and will support the Bill because I know the people want me to do that and I will carry out their wishes.
There is an emergency and there is no doubt about that in anybody's mind. Something must be done and what is proposed is, in my opinion, correct. We must secure the State and the freedom of the people to live without fears. Unless the Government shows their hand there will always be a fear in the people's mind that their security is at risk. I want to assure the people that this Government will see to it that the people who wish to live in this State will have a guarantee that they will live in the security of their homes and the family will also be secure and they will have the freedom to work for the other individuals of the State.
One point mentioned on a number of occasions is the extension of two days to seven. I have not discussed it with the Minister, but I think this extension is definitely necessary because there are too many outlets for those who have been taken into detention for two days without enough evidence to warrant a prosecution. After two days they must be allowed to go free. There are too many outlets of escape for those people. There are too many people in this State who will give them cover and we know that if we go back to the Herrema kidnapping case. If there is evidence there and if the garda commissioner would wish that they should have extended time, that time should be given. I personally and the 99 per cent of the people I am speaking for have great respect and trust for the Garda and the Army and know that the Garda and Army are appointed to carry out a certain duty in this State and will carry it out to the best of their ability without using that authority against the individual, using that authority with respect.
We all have approached them from time to time and discussed certain  problems with them and we know how easy it is to talk to them and approach them. We know they have the safeguarding of the State in their hands. We know we are safe with them. It is that small percentage of people who would like to bring down the State we must fear here in the Seanad and see that any outlets or ways they can use to bring down the State should be closed. This is one decision we must make next week and we hope we will secure the State and give the Garda and Army the confidence that they deserve.
It has been mentioned in the Minister's speech that we have between the Garda and the Army 23,000 people; that is one member of that force represents 130 people. In my opinion it is sufficient if all parties here are united to see that they get all the help that is needed. We have a chance. We will do our utmost to see that those people get the help that is needed so that every one of us can live in peace and happiness.
We spoke about the women going on the streets looking for peace. We have all known, since 1969 and previous to that, that the women of Ireland can be depended upon. We also all know that it is the women of Ireland who fear most. We are men and we are out in our jobs and our minds are preoccupied, but the women are at home trying to rear their families. Sometimes something happens and who fear most but the women? If the women need protection we must give it to them. It is our duty here, as legislators, to see that the legislation is there so that the fear of those people is removed, or as much of it as possible. I know that we are doing the proper thing today to see that, to give back confidence to the people, to give back confidence to the Garda force, to give back confidence to the Army, to assure those people that at least the Government are totally behind them so that they may carry out the work required of them.
If an Irish Ambassador was shot in another country, would we just sit here? Would we demand legislation in that country? Of course we would. It would be our duty to see that all our  Ambassadors all over the world are safeguarded to carry out the duties that are required of them. It is our duty here to see that all foreign Ambassadors can live and carry out the duties required of them in this country. We know what has happened to one. Let us hope that is the last. Let us hope that if legislation is necessary, and I believe this legislation is, to see that those people can live and carry out the duties that they are appointed to do, that that will be done. It is our duty. It is the people's duty, not alone ours as Members of the Seanad or the Dáil, to see that they are allowed to do what is required of them.
Ninety-nine per cent of the people of Ireland and many of the people who are on the Executive of Fianna Fáil feel as I do. I am certain of that because I have spoken with them. I am sorry if the Fianna Fáil Party have not learned this yet because they were a good party who listened to the grassroots. I am afraid they are removed from the grassroots if they do not understand what is in the Bill and do not support it today.
Professor Quinlan Professor Quinlan
Professor Quinlan: I do not intend to be long in my contribution because there was an agreement to finish at 4.30. I wish to make a few short points on this motion.
First of all, there has been a great deal of confusion about the position with regard to the Constitution in the present motion. The Constitution is a protector of our basic rights and the Government cannot alter those unless the Article concerned is amended by the people in a referendum, but due to Article 28 there is no protection whatsoever provided in the Constitution for any acts that are prefaced by a simple accompanying resolution that claims that what is being done is arising out of armed conflict—in other words, when Article 28 is invoked. The invocation of that is no more or less than the passage of any other Bill through either House. It simply depends on a Government decision to pass the Bill together with this appended resolution, and its passage simply depends on the  majority that the Government command. What is important, then, is simply what is being done in conjunction with this invocation, the consideration of the present Emergency Powers Bill and any subsequent Bills. All that happens is that, as set out in the Constitution, it does not have to be repeated with every subsequent Bill. Still, let us not fool ourselves. This power under the Constitution is entrusted solely to the Government and therefore, like any other legislation, once the Government have a majority in the House, this section is to be invoked. That is the very real difference between this and the position in the Constitution.
What becomes important then is the question of the extra-constitutional powers that are being sought and can be taken by the Government by virtue of this Article 28 invocation. The only powers before us at present are in the Emergency Powers Bill, 1976, which will come before us later —a Bill of one section. The real debate should take place on that as to whether the extra power sought there—the extension from two days to seven days—is justified or not, or whether we are satisfied that the authority signing for it, someone of chief superintendent rank or higher, is adequate or not. The same prevails for other legislation that may be introduced along the same lines, and I hope and pray that we will not need that.
Contrast that with the sweeping powers that were assumed in 1939 by the Government of the day—admittedly we had the start of the European war—the powers that the Government in effect were entitled to rule by decree. In other words, Parliament was set aside in effect. There was an excellent article in The Irish Press yesterday, Tuesday, 31st August, by Mr. Hugh O'Flaherty, in which he describes, in a sane and level-headed way, the powers that were given in 1939:
The Emergency Powers (No. 2) Act, 1940, provided that the Government might by Order make provision for the trial, in a summary manner by commissioned officers of  the defence forces, of any person alleged to have committed any offence specified in such order, and, in case of the conviction of such person of such offence, for the imposition and the carrying out of the sentence of death, and no appeal should lie in respect of such conviction or sentence.
In other words, that was absolute government by decree, all right in the circumstances. The time perhaps warranted it but there is no parallel to mark it. So we ask then what is the necessity now? The items have to be taken bit by bit because we should not even think of giving the Government such sweeping powers of ruling effectively by decree. I hope the situation would never be so serious. If there was a civil war in the North or an attack on the minority there and it spilled over the Border, of course there would be some prospect of a grave emergency here and emergency means of dealing with it. That does not arise at the moment. The Government have been challenged again and again to spell out the extra-constitutional powers that they need because to many of us the present Bill does not seem to merit the Oireachtas being called back from holidays and all that it has entailed or does not merit the label of an emergency. We are asked: what are the reasons for all this? Surely that is putting the Government in an impossible position, because if they do have confidential information that seems to suggest that perhaps more outrages may follow in the months ahead or there is a fear of those and they are trying to prepare for them, obviously such information cannot be divulged here.
That brings me to the next point, which is that the first essential response here should surely be the setting up of an all-party committee on national security. I have asked again and again for an all-party committee on Northern affairs and it seems absurd that here we preach and use every device we can to encourage the people in Northern Ireland to get together in power-sharing, and yet we absolutely refuse to take any slight step towards power-sharing  in our situation. This is not merely the fault of the present Government. It was equally so under the previous Government and I am on record in Seanad Éireann of criticising their policy and their failure to provide that. It has become even more blatant under the present Government. To my mind that is the only effective response we can have, to set up as soon as possible an all-party committee on national security or national security in Northern affairs—any title you wish. In that small committee where the main Opposition party would be adequately represented, the Government would have a place in which they could spell out the reasons why they needed any further powers that may be sought in the months ahead which would necessitate invoking Article 28.
Our failure to do that I cannot understand because there is no difference between both sides of the House on the question of national security. The speeches from the Fianna Fáil benches have been equally committed and forthright on the question of national security and the amendment which they tabled is in quite strong terms and quite a good contribution. It establishes without a shadow of doubt the absolute commitment of the main Opposition party to using every means possible to preserve law and order and to combat and defeat subversion and the activities of unlawful organisations. We are all agreed 99 per cent of the way. Why then have we to go through the spectacle of trying to suggest that there are divisions between us in approaching this very important national task of security, trying to show divisions where divisions do not exist? Therefore the amendment as tabled has been most valuable in the sense that it has put on record absolutely the position of the main Opposition party in this regard and it goes 99 per cent of the way to meeting what the Government are seeking.
The Government have been questioned on the appropriate response. To my mind this is a response. I am not in a position at present to judge why they need this to suspend the Constitution. I cannot exactly see the necessity for it because the necessity depends  only on the individual items that come. There is only one coming. That is what we should debate because that is something within the power of the Government. It is only a stamp put on the Bill as it goes through. First of all, I do not expect the Government to give me reasons about any forebodings they have about the months ahead, so in this regard I intend to support the motion as it is, but I am calling for an all-party committee on national security and until that committee have been formed I am not prepared to support any further extensions or emergency powers sought under the heading of Article 28. I appeal to the Government to learn the lesson of Sunningdale, which was the failure of our Government to involve the main Opposition party in Sunningdale and in the agreements that went with it. It is a tragic loss, and I have no doubt that if Fianna Fáil had been in power they probably would have done the same. But why can we not practise what we preach about power sharing and make a beginning? I am asking now as part of the response that this beginning be made.
Secondly, of course, I agree completely with the sentiments expressed by Senator Robinson on the necessity for having an adequate response, in other words something that wins the mind and hearts of our people, indeed something that will wean the younger people away from subversive organisations. There is the present lack of employment. We have called for such an emergency programme several times. We hoped in July we were getting near it, but September has now arrived. To put our young people to work, give them opportunities, even in short-term employment or amenity work, are the most effective defence against subversion within our community.
The crucial question must be faced when we look at the powers that may be sought when the two Bills are presented. We then must ask ourselves if we agree with them; if we need to put in more safeguards than exist, are we satisfied that this repression should be left to somebody with the rank of chief superintendent, or higher, or  should it be placed higher. These are the vital questions, but do not let us get bogged down in talking about suspending the Constitution, or anything else, because the Constitution does not apply to the type of offence that can come under Article 28.
Mr. Horgan Mr. Horgan
Mr. Horgan: The first thing I should like to do in this debate is to explain a certain sense of personal interest in the matter under discussion. Sandyford, where the British Ambassador was so disgustingly murdered, is almost in the geographical centre of the Dáil constituency for which I have been chosen by the Labour Party to stand as a candidate in the next general election. I am sure I speak for all public representatives, and the vast mass of the people living in that constituency, when I say that this disgraceful and abhorrent act is something which, whatever is done or whichever measures are taken, will continue to exist in some sense as a stain on the national conscience. It would probably also be true to say that many of the people with whom I have conferred in this constituency and outside it would have been ready and more than willing to accept a response to this obscenity, a response both appropriate and adequate. Here, unfortunately, I must enter a caveat because quite a number of people and, certainly myself, find that in some respect the reaction to this and other related events has been rather larger than we have been led to expect and perhaps inappropriate in the present situation in which we find ourselves.
Specifically, in relation to the declaration of the state of emergency and the short piece of legislation which depends on that declaration I believe that I am right in saying that there exists in the Labour Party—not only within the Labour Party as a whole but even, indeed, within the Parliamentary Party —some substantial reservations about the advisability and necessity of having this measure introduced before us now. The core of the debate is one which can be expressed in a simple equation. To what extent does one abrogate civil liberties and personal individual rights to cope with an admittedly drastic,  dangerous and almost permanently threatening situation? In this situation the role of the Constitution is not one to be taken lightly or hurriedly. Darrell Figgis, in his book on the earlier Irish Constitution, opens his first chapter with a rather lighthearted anecdote which is relevant to the present debate. He writes:
During the early days of the second French Republic a customer entered a bookseller's and asked: “Have you a copy of the French Constitution?” “We do not,” the bookseller politely replied, “deal in periodical literature”.
There have been times, and I do not mind admitting it, that I would prefer that the present Constitution were more capable of easy amendment than it is. There are times, such as the present time, when I am glad that it is not. Even at that I am sorry that this occasion should be chosen by the Government to abrogate one of the fundamental rights in the Constitution, specifically with regard to detention without trial for a given period. If I may clear my unwillingness and conscience to support this measure, I should like at the same time to scotch one impression which is perhaps pervasive and has been given currency by people who should know better, an impression that civil libertarians are somehow soft on violence, that civil libertarians are soft on the gunmen, that civil libertarians would prefer some abstract concept of liberty to real people's lives, belongings, reputations and so on. Nothing could be more untrue than this assertion, and yet it is one which has acted as a kind of undercurrent in the present debate. Civil libertarians cannot afford to be soft on violence, not least because violence affects so many of the civil liberties we have come to take for granted. At a relatively, or what might be regarded as a relatively insignificant level in this city at present one of the effects of violence has been to affect the civil rights of somebody to go to an evening's entertainment in a cinema or to go to a public house for a drink in the centre of the city.
 At another level the effects of the violence which has ravaged Northern Ireland in particular and to a certain extent our own State in the past six or seven years has been to add to the general climate of economic uncertainty and recession and produce a situation in which a person's civil right to work has been most seriously affected. Whether it is a question of the possibility that industrialists may not set up industry in Ireland because they are afraid of the consequences to their plant or to their persons or whether it is a question of the effect of bombs planted in tourist resorts the results are much the same. This is violence affecting a fundamental civil right, the right to work, the right to employment. On a more serious level of course there is the way in which violence affects the bodily integrity of the people, whether it is their knee-caps or their hearts.
That is why civil libertarians can never afford to be soft on violence, because it threatens so many of the things they can and should hold dear. I am aware that there is a division of opinion among people who would quite proudly describe themselves as civil libertarians on this series of measures proposed to us by the Government. I respect that division of opinion. I may find myself on one side of that division, but what I will not do is to ascribe, as has been ascribed in this debate, unworthy motives mostly, and especially perhaps the motive of hypocrisy which has been ascribed to people who believe that these measures are in this time and in these circumstances necessary. I accept the goodwill of those people in my own party and outside it who believe that these measures are necessary at this time. I will not, as Senator Browne did, accuse them of hypocrisy no more than I would accuse Senator Browne when he said, as he did, that this Government frightened him more than the IRA, of employing anything more than a rather distasteful form of hyperbole.
When I say I find myself on one side of the line in this division of opinion among libertarians in relation to this legislation I can buttress my  position by pointing out that the party to which I belong is one which has a very long, a very solid and a very substantial libertarian tradition. It is also, of course, a democratic socialist party with a democratic and socialist tradition. I hope it will add force to my arguments if I explain my belief that in a situation in which the institutions of the State and the whole democratic way of life of the State are seriously and fundamentally threatened, I do not believe a democratic socialist party can flinch from measures, however harsh they may be, which have as their object the fundamental preservation of these institutions and this way of life. The real philosophical argument—and perhaps Senator Michael D. Higgins and myself might have it on another occasion —is about the degree to which a Government, a party, in particular in our terms a democratic socialist party, can and ought to go in a repression of the liberties of the individual in a situation in which the overall democratic framework of the State is seen to be at stake.
We are not having that debate now because neither Senator Higgins nor myself agree that these conditions obtain. It is essentially only a debate which can take place between people who are in agreement on this basic premise but who believe that the situation does require some emergency legislation. It cannot take place between myself and people who believe the present situation is one of such emergency as to need the present legislation because there might be circumstances in which I would be prepared to go even further than the legislation is going. I do not believe the present circumstances are even adequate to provide the sort of foundation for all these measures being introduced.
There is a lot of acceptance of the fact that the security situation here gives rise for concern. It has no doubt given rise for concern for some time. The Minister in his speech referred at some length to the statistics of shame, as they have been described, the statistics of terror and horror that we have been living with for the last six or seven years. I found myself in  agreement with almost everything the Minister said, with the exception of his conclusions. I found his speech sensible, sober and sensitive. But what I did not find in his speech— and my criticism of it is related more to its omissions than its statements— was any actual proof that the situation which he described necessitated the measures which he proposes. We were not even told that there was additional evidence which the Government, for reasons best known to themselves, could not tell this House or the other House and on the basis of which they have made their decision. We were given an able and, indeed, telling recital of public facts, facts which are known to every Member of this House and are known to every person in this State who reads the newspapers. We were asked on the basis of these facts to signify our acceptance for the declaration of a state of emergency which would derogate from fundamental rights in our Constitution.
Despite the horror of the murder of the British Ambassador, despite the attack on the courts—this was not the first attack on the courts—I find it impossible to accept that the precise measures now envisaged are the ones which are called for. We are being asked to accept as a result of the statement of a declaration of an emergency a law which is in many respects substantially different and more repressive than a law which was passed in the British House of Commons to deal with the situation in another part of this island which is by any standards ten times worse than what we are experiencing here.
I do not propose to go into detail of the provisions of the legislation but it is interesting to point to a couple of major differences. In the British law, the emergency provisions legislation which was passed to deal with the situation in Northern Ireland and under which detention was also extended to a period of seven days, the first time that this law was passed it was passed only for a period of six months. We are being asked to pass a law for a period of one year. In order for this law to remain in force it required a  positive affirmation of Parliament. In order for our law to remain in force all that is needed is a Government order. People who are committed to detention under the British law have rights of recourse to legal advisers under their Judges' Rules which are not available under our Judges' Rules. May I point out that even under the British Judges' Rules independent research has shown that this right of recourse to a solicitor or legal adviser is largely unavailable to prisoners when police, acting under the same Judges' Rules, judge that such recourse to a solicitor would impede the process of their investigations.
It is interesting to note in the debate on the British legislation in the House of Commons that one of the people who voted unsuccessfully for an amendment to the Emergency Provisions Act which would have had the effect of requiring people in this extended period of detention to be given access to their legal advisers, without hindrance by the police under any circumstances, was Mr. Gerry Fitt, who more than most public representatives in either of these islands must know what it is to face the gunman and to face him down. One of the most substantial differences between the two Acts—remember that the British Act is largely for the Northern Ireland situation—is that the decision to place somebody in detention for a further period of six days in Britain is, under British legislation, a political one. It is one which is taken by the Minister of State responsible for Northern Ireland or by the Home Secretary. The British Government, in this legislation, however much one may disagree with many aspects of this legislation, and many members of the Labour Party in Britain did so, have at least taken that bull by the horns. They have at least accepted that the decision to derogate from fundamental human rights must not be disguised as a matter of administrative convenience and that the responsibility for it must be put firmly on the shoulders of elected public representatives, where it belongs. This is one of the fundamental problems about this legislation.
 There is a real danger, if we do not agree that such a major state of emergency actually exists here, that by declaring there to be such a state of emergency in existence we may be crying wolf. There may come a time when a real state of emergency may exist here, one more serious than the present, a state of emergency in which not even the present proposed provisions would be adequate to meet. What more could we do at that stage? It is certainly dangerous from the point of view of establishing and maintaining public confidence to declare there to be a public emergency affecting the vital interests of the State at a time when ordinary levelheaded common-sense members of the public find some difficulty in accepting that this is so.
Not only is there not, in my view, the sort of emergency which would entitle us to pass these rather Draconian provisions, but I believe the security forces are doing a much better job than they have generally been given the credit for. It is not a pleasant job, it is a job which has been no doubt at times marred by excesses of zeal or whatever, and it is an extremely difficult job; but by and large it is a job which they are doing extremely well. It could be argued, and members of my own party have argued with me along these lines, that the difference between, say, 1972 and today is that the situation has actually got worse, that this is the reason why members of my party were prepared to argue in a certain direction in 1972 and are now prepared to argue in favour of these proposals now. It cannot be denied that since 1972 in objective terms the situation has not got any better. We have had this continuing cancer of violence in our society intermittently spreading over from the North, sometimes indigenous. But I dispute that it has got so bad as to necessitate the kind of measures in all their detail which we are having presented to us.
I see the security forces at the moment as taking part in an exercise which has effectively contained much of the violence we have seen. It may  be marginally worse than it was four years ago, it may be marginally better. The differences are difficult to establish in percentages. Then some people may say: if it has not got any better do we not need the extra measures to make sure that it does get better? I do not believe so for one reason and that is that, while the objective security situation may not have changed dramatically over the past four years, there has been the most enormous change in public opinion during that same time.
It has been said, with some justice by previous speakers, that the real battle is for the minds and hearts of Irish people. This has been said by Senator Robinson and Senator Michael D. Higgins, who repeated her on this. If I might correct their syntax a little, I would argue that the battle is not for the minds and hearts of the Irish people, not in the sense of St. George and the dragon fighting over the beautiful maiden at the stake or, to use a rather more ambiguous but more native metaphor, Cuchulainn and Ferdia at the ford. It is not a battle between élites over a passive prize. This is a battle in which all the Irish people are participants; it is a battle which is taking place in their own minds and I believe it is a battle which has been largely won. The reaction to the events of the last two months prove that without any possible shadow of doubt.
The question that faces us as a Legislature is: how do we interpret the will of the people? It may be argued that our responsibility is simply to enact the harshest possible measures we are capable of devising that we know will have a basis of widespread popular support. But that is not the only responsibility of a Legislature. We are elected here at least as much to safeguard the rights and liberties of our constituents as to abridge them. We have a responsibility to our electorate. It is a very subtle and complex one and is not one which is simply discharged by going for the maximum possible degree of public acceptance all the time. If we were never to pass any legislation that did not have public acceptance we  would never have a taxation policy, we would never have a fiscal policy. We can extend that rather complex argument easily into the area of security.
The next question that can be asked is: are the institutions of the State and is our democratic way of life, therefore, in no danger? Of course, the institutions of the State are, to some extent, in danger. Of course, our democratic way of life is always, to some extent, in danger. Institutions and the democratic way of life do not exist in a passive sense like some sort of Holy Grail which we revere in the distance. They are institutions, it is a way of life which always has question marks put against it in a real democracy, which always has to prove itself and which always need to be strengthened by making them more genuine expressions of the will of the people and less the preserve of any élite—financial, educational, political, bureaucratic, whatever. The one way not to strengthen them is to devalue the currency by which they live, and that currency is freedom. People may be deprived of their freedom in various ways. They may be deprived of their freedom, their livelihood and even their lives by the sort of illegal fascist violence perpetrated by armed conspiracies against the State. They may also be deprived of their liberty in various degrees by the institutions of the State. Where I would, perhaps, disagree slightly with Senator Michael D. Higgins on this point is that I think not only is there a qualitative difference between the deprivation of liberty carried out by one sort of organisation or the deprivation of liberty carried out by another, but if that distinction is absolutely vital it must be maintained or if it is not maintained there is a real danger to democracy.
This is why due process is important. This is why the institutions of our State and of our democracy, whose currency is freedom, need to be maintained and improved and continuously criticised. For all their imperfections, for all the oppression they occasionally exercise, they carry within themselves the seeds of reformation, the seeds of  some of democratic change. All our democratic institutions—Parliament, the courts and the security forces— are all dispensers of freedom, albeit negatively in some cases. This is the importance of maintaining them and, indeed, of preserving them almost at all costs. One of the reasons I am unhappy with the legislation proposed to us on foot of this emergency resolution is that I feel that by conferring this power specifically on the police force it is in danger of blurring this distinction. If it blurs this distinction it will devalue the basic currency of freedom in which we deal.
If we were only to look at the situation in terms of the last three months and the next three months and where we stand in relation to that six-month period one might say that perhaps, give and take a little, one could accept it. However, we must look at things in a longer perspective. That longer perspective must go back at least as far as 1972 when in the passage of the Offences Against the State (Amendment) Act the evidence of a Garda chief superintendent was made, in certain circumstances, sufficient evidence for the conviction of a person under the criminal law. This is where the rot set in and this is where I would blame the Opposition party for their contribution to the devaluation of the currency of freedom. What happened then was that the Government of the day for whatever reason decided that internment was not on and decided that the best thing they could possibly do was to effectively make the courts the instrument of a policy which was as close to internment in some instances as made very little difference. If the Government of that day thought internment was needed they should have had the courage to bring it in and face the opposition here and if necessary the public outcry.
We have in that legislation the creation of a climate of opinion in which people are encouraged to believe that the courts, who have reacted to that legislation with a sensitivity and a sense of justice which has been marvellous in the circumstances,  are being made to appear less and less the defenders of the individual rights and freedoms of the citizen and more and more as the passive arm of the Executive. We have in this present legislation a particular device which, rather like the device in the Offences Against the State (Amendment) Act, would have the effect of putting the police force in very largely the same situation. It produces a situation in which not just the justice they dispense but the courts themselves are to some extent called into disrepute.
Anybody who reads the newspapers has been aware over the past few months of the incredible scenes that have occurred in some of our courtrooms, scenes which are taken almost as normal. It is not enough to point to the character of the people who make these disturbances and say they would have made them in any case. There is a great danger in the devaluation of the currency if it is dealt in by the Judiciary and by the police force caused by the 1972 legislation and which perhaps may be added to by this. You have to reinforce in people's minds the idea that this kind of behaviour is, whether justifiable or not, at least to be expected because of the way the courts have been built into what is fundamentally a political decision-making series about who should or should not be free. It is much more difficult to defend freedom than to achieve it.
The free society has the right and the duty to protect freedom. Once it ceases to embody a fundamental respect for freedom and its enforcement measures, it has begun to lose the battle. Few things, I would argue, would provide a more gratifying victory for the terrorists than for us to undermine our traditional freedoms in the very process of attacking the enemies of those freedoms.
Dr. Martin Dr. Martin
Dr. Martin: There is hardly any aspect of this Bill that has not been discussed in breadth and in depth and from every point of view. I missed very little of the debate and it seems to be one of the most serious and clearly thought through debates that I have  had the privilege to listen to. I would not attempt to try to enter onto the same ground as Senator Mary Robinson, who so skilfully outlined the legal aspects of this Bill, or Senator Michael D. Higgins, who worked so hard to provide a philosophical background for us, or, indeed, Senators Noel Browne and John Horgan, both of whom raised very important aspects of the Bill, and my colleague, Senator Quinlan, as well. I feel at this stage, as we are nearing the end of the debate, that there might be some point in zooming in a little closer to the actual pragmatic ground on which the Minister and his colleagues are working—the situation on the ground in Ireland which impells an Administration to declare a state of emergency.
The legal aspects of this have been clearly adumbrated for us by Senator Robinson, that is, the Government are free to do what the Fianna Fáil Party have done in this amendment, an amendment upon which Senator Robinson cast very strenuous aspersions. There is a sense in which it accords with the logic of her first statement, that is, if you want to say we are in a state of crisis as distinct from the legal position of being in a state of emergency, there are many ways in which you can indicate that state of crisis to the community. You can do it through the newspapers, radio and television. You can do it in terms of speeches in the Houses of the Oireachtas. In other words, you can initiate a kind of rhetorical statement of the kind that is embodied in the Fianna Fáil amendment. To enact a state of emergency on the other hand is to do something radically different. In effect it is to suspend, if not the Constitution, large areas and provisions of the Constitution and to make a formal curtailment of human liberties. The latter cause is the course which the Government have chosen to take.
My speech will be largely interrogative. Most of the speeches, while being very definitive and wide-ranging, have been interrogative in both Houses. Why the state of emergency? Is it in order to enact these two measures which we find in the  Emergency Powers Bill, that is, sections 2 and 3—particularly section 2, subsections (2) and (3)? As has been pointed out, there is very little in section 2 that is not already in the Offences Against the State Act. In fact, it has soft-pedalled some of the provisions of that. Is the declaration of the state of emergency merely to make provision for someone to be held for seven days instead of 48 hours? That is a question which needs an answer. I have not decided which side I am going to vote on in this Bill yet. I mean that in all sincerity. The arguments against it have been more persuasive so far than the arguments for it, though I admired very much the opening speech. Unless the Minister can provide an answer of a convincing kind, I will have to vote against it.
Senator Quinlan said that probably the Government have information which it would be foolish for them to divulge in public to us and that the state of emergency is really based on that, secret, privileged information which they dare not share with us. Fair enough. But the Government have not even said that. They have not said they have special privileged information which they cannot share with us. That would persuade me a certain amount because I trust the Government as men of discretion and honour. That has not been put forward, so it cannot be considered. I do not agree with Senator Quinlan on that point. Unless that appeal is made to us we cannot respond to it.
Are those seven days needed for in-depth interrogation, as they call it nowadays, for what is called “third-degree”, or for what the Northern Ireland authorities have been indicted by us for in Strasbourg? Is it for that sort of thing, either in large or small cases? Is it, on the other hand, a theatrical enterprise from beginning to end? Are the Government deciding after the hideous and cruel murder of the Ambassador and the attack on the court that something has to be done of a spectacular kind which will alert the country to the situation into which we are drifting? In other  words, is it an exercise in parliamentary melodrama designed to attract the attention of the British and Northern Governments and the Irish populace to a situation which the Government wants to underline in a particularly dramatic way? I cannot find another reason for that seven days' detention. It is either one or the other. It either involves a radical departure from the normal procedure with regard to civil liberties or else it is an excuse for mounting a highly commendable and quite desirable campaign to serve notice on the IRA and to pursuade everybody else that the Government mean business. If it is the latter however admirable it may be—and I would not expect the Minister to admit to it if it were so—then there is a tinkering with the Constitution which would reasonably conform to Senator Robinson's formulations, that is, there is a cheapening of law, a cheapening of the Constitution and a devaluation of the legal coin by which we live. When I say I am going to be brief, as distinct from some of my colleagues I usually deliver brevity.
That is the set of co-ordinates which have come to me out of the debate as it has been enacted so far. If the question is put to one “Is there a state of emergency?” probably you could answer “Yes” or “No” to this. The man in the street or on the bus might answer one way or the other. For instance, the murder of the Ambassador changed things radically in this country. The manner in which it was committed was so cold, dispassionate, efficient and basically cruel, and ultimately acknowledged by nobody, not even the IRA, suggests a climate of subculture, callousness, cruelty, inhumanity, brutality and calculation within the country which is exceptional. That is a symptom different from any before that. It happened in the middle of Senator Horgan's constituency and within half a mile of my house. I cannot help thinking that my children were playing in the street when the cold-blooded men with those explosives passed in a car along the road heading towards Glencairn.  That brings it home with a special force to me. The fact is there and the fact that the men who did that cannot be brought to book certainly constitutes a new dimension, a new turn-of-the-screw of violence and an occasion where the Government really does have to think anew and even more radically about the problem of violence among us.
The explosion at the Special Criminal Court is not quite in the same brutal order but it is certainly an attack on the heart of our whole democratic and legal system. Both these atrocities are not just crimes against individuals. These are basic insults and challenges to us as a people because the Ambassador was under our protection. The killing of him was not just a foul assault on his life; it was a deliberate, calculated challenge and insult to the institutions of State. I would not quite share the passion of either Senators Higgins or Browne about the distinction between institutions and people. The Minister's speech has been fairly evenhanded with regard to this. I quote from page nine:
These are all considerations of the highest importance. But overriding all of them is our concern with the public safety and with the preservation of the State. The first duty of a democratic Government is to protect the lives of their citizens and to allow them to live and go about their legitimate business in peace.
In other words, it is the citizens of the country he is concerned with. The attack of the Provisional IRA and the other men and women of violence among us is not just an attack on institutions, it is an attack on us. It is an attack on men, women and children. These are the people who are killed. Institutions do not bleed, people do and it is people we are concerned with.
When we think about the question of emergency there is certainly a drift towards anarchy. It is almost imperceptible but if you were to take statistics on the number of post office and banks raids, muggings and various acts of violence of that kind, they are rising by the month. The tide is rising slowly and almost imperceptibly.  It arises out of an historical situation which places us all in a situation of extreme embarrassment which again has been raised. Many of us have come of age since August, 1969. There were many of us who subscribed to some sense of republican destiny which was perhaps built into the history books and, in fact, articulated by some of the greatest poets of our time in phrases like “a terrible beauty is born” which have to be reassessed in the light of what happens when that “terrible beauty” turns into tragic ugliness in the maimed bodies of people who have died. There is no doubt that that mythology of 1916 was one of the elements which brought the IRA into being. In August, 1969, it was very well recognised that there was no IRA. The IRA was brought into being by two things. One was oppressive legislation in the North of Ireland. This is the thing that should give us thought when we are enacting this. It was the frustration felt by people because of oppressive legislation and the mythology of 1916. When these two elements fused the result was a pretty radioactive combination which has swept us inexorably into the situation in which we find ourselves.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: The Senator should draw a distinction. He is certainly not speaking for me. He is speaking for a minority in the literary tradition.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Senator Martin to continue without interruption from Senator Higgins.
Dr. Martin Dr. Martin
Dr. Martin: The Senator has a right to dissociate himself from that.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: I do.
Dr. Martin Dr. Martin
Dr. Martin: The Senator is not as other men. I am speaking of the situation in which the country finds itself. There may be an élite who have managed to climb on the mountain before that volcano erupted, if I am not mixing my metaphors too much. I am thinking of the country as such. There was a period in Ireland, since the question has been raised, when the great majority of the Irish people were in  favour of the IRA as they defended the beleaguered people in the Falls.
Mr. Cooney Mr. Cooney
Mr. Cooney: Nonsense, with respect.
Dr. Martin Dr. Martin
Dr. Martin: With all respect, I would argue that. The night the RUC and the B Specials burned out 500 Catholic homes in the Falls was the night the IRA came into being. A lot of people were glad they were defenders there. For a while—I would agree with Bishop Daly here—the motivation of people who entered the IRA in those days had a good deal of idealism and nobility about it. The point is that a Frankenstein monster was created and that the violence which was set up to counter that violence has become more violent in its time. At the back of the minds of many of the IRA was the notion to end this violence in this generation. Of course, history has caught up with them. It is absolutely clear that violence will not defeat violence and it is time that they recognised this. It should now be spelled out for the Provisional IRA that, whether they like it or not, they have not succeeded, that history has caught up with them and that they will find themselves in the position of being the enemy of the people, which they are.
One of the purposes of this Bill is to extirpate the IRA, which is something that has to be done. I should like to appeal to the men of goodwill who may remain among them to desist from this campaign. I should like to appeal to what is left of their better motives, because it is not always better to condemn than to appeal, to realise that they have failed and that the climate of opinion has turned inexorably against them. I would argue that there was a time when the climate of opinion was far more in their favour than it is now.
This brings us to the very centre and nub of the Bill; how to defeat the IRA without enacting repressive legislation, without enacting legislation which to some slight degree repeats the crime of violence against them, because violence breeds violence. In other words, the question we have to ask is: is it the  proper response to the situation? This is the question that Senator Michael D. Higgins asked. Is this the proper response to a situation which you might describe as critical or as a state of emergency? Is this suspension of the Constitution and this detention for seven days the best response? Frankly, the answer to that at this stage is I do not know. I want the Minister to tell me why, because in both Houses the answer has not been forthcoming.
First of all, with regard to the seven days, I want to ask a number of questions. They have been asked before but as we are coming near the end of the debate it is a good point to ask them again. For instance, will the people who are held for seven days be allowed to have legal advice? Will the Judges' Rules apply when they come to be charged? Will their relatives be told that they have been detained? Will they be allowed medical inspection or will they, in fact, be held incommunicado for seven days in “a place of convenience”, as the phrase is, perhaps an unknown place? In fact, will they be at the mercy, tender, scrupulous or otherwise, of the police, of their custodians for those seven days? Will they be totally lost to sight and mind of their relatives and to the normal processes of law? These questions have to be answered. If they are answered in the affirmative, if these provisions are made possible, that is, that they will be allowed reasonable access to a legal adviser, that their relatives can see them, that a doctor can see them, I would more or less be persuaded towards voting for this measure.
The second point which was not clarified—I did not want to interrupt Senator Robinson when she was speaking—and on which I am still a bit murky, is in regard to this notion of a lapse after 12 months. I should like that explained because I cannot vote on it intelligently unless I have it explained. That is, I had thought when I read it first with a layman's eye that this provision would lapse automatically after 12 months and have to be reactivated. It seems now that that is not the case——
Mr. Yeats Mr. Yeats
 Mr. Yeats: It is permanent.
Dr. Martin Dr. Martin
Dr. Martin: It seems that it is permanent and that it can only be annulled by the Houses of the Oireachtas getting together in order to annul it. That is an important point. I would find it very difficult to vote for that provision if it did not lapse and require reactivation after 12 months. These are precise and important aspects of it. I want to make this clear. If these conditions were fulfilled, I think that I would tend to vote for it. I would vote for it for the following reasons: that there is a state of emergency, that there is a new and particularly gruesome and calculated attack against the people, as distinct from the institutions of Ireland, and against the institutions too. I do think that the moment has come for the final thrust against the men of violence and that a measure which would only last for 12 months, with the built-in restraints and provisions that I have mentioned, would not be too much of an affront to our democratic institutions.
In fairness it would have to be said of both Governments who have been in power that their use of emergency legislation has not been excessive, has not been such as to affront our conscience to a spectacular degree. What are the answers to these questions? We are waiting for them. The ball is very much in the court of the Minister. As far as I am concerned, the arguments against the Bill have been more persuasive than those in favour of it. I am referring now just to the state of emergency; the Bill itself and the consequential Bill are other matters. Do we have a state of emergency? As I say, the arguments against it seems more impressive so far, even in the Minister's speech which could not be expected to anticipate the arguments levelled against it. I have an open mind on the matter at this stage and I look forward to hearing the Minister's views.
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: I should like to open my contribution by referring to what the last speaker has raised, in so far as I think I am able—I think the Minister is far better able. Indeed, he may even be correcting me in the  expression I am now going to make as to my belief with regard to the problems raised.
If I understand the legal situation which is proposed by the adoption of the resolution, and it is the resolution which at this stage we are debating, it is to make it possible to pass two Bills which have been circulated and which are given a particular——
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: Only one.
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: Thank you for that correction, and I hope you do not have too many more to make. The Bill which is to be protected by this resolution is only given this protection: that nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing public safety and the preservation of the State in time of war or armed rebellion and so on. That means, as I understand it, that there is no question whatever of this being a suspension of the Constitution. The Constitution stands intact and all this resolution does is to give the protection that the provisions of the Bill which is enacted by the Oireachtas from any Article of the Constitution being invoked to invalidate the provisions of the Bill——
Mr. Yeats Mr. Yeats
Mr. Yeats: Or any other Bill——
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: With the greatest respect, the Senator can speak very eloquently when he speaks, but would he stop interrupting? He did not interrupt when he sat in the Chair. For goodness sake, do not interrupt now. This is a serious debate and I should be allowed to make what I am trying to make, which is a serious contribution. The effect of the passing of this resolution is merely to preserve and protect such powers as are given by this Bill to the Executive, and all the other powers in the Constitution, all the other rights, unless they are excluded by the provisions of this Bill and only in so far as they are excluded by the provisons of this Bill, stand intact.
For example, whatever right any man in custody may have to a lawyer, whatever right, whatever status the Judges' Rules may have, in my view,  and I offer it to the House as my view—and the Minister can say whether my view is correct or not— these rights stand in relation to the persons to be taken into custody under this Bill, if enacted, and are in no way affected. Whatever rights a person may have to get medical assistance when he is in custody, whatever they may be and I am not a criminal lawyer—they stand just as much in relation to the persons in custody under this Bill as in relation to persons in custody under any other Bill. Whatever rights the man may have, if he has any, to get visits from his relatives when he is in custody, they stand and they would only be excluded if this law which is being offered by the Government to the Oireachtas sought to deprive them of those rights. As I read this Bill proposed to the Oireachtas, it does not seek to deprive them of these rights at all. If the Minister does not correct me, I do not know whether that would affect the way in which Senator Martin will cast his vote.
If the suggestion that the Constitution was suspended were true it would mean, for example, that there would be no obligation on the Taoiseach to call the Dáil to meet every year. The Cathaoirleach here would have no casting vote in the event of a tie. There are all sorts of things which would fall utterly to the ground. The President will have to sign this. He can refer it. Most interesting questions do arise, I agree. I keep my mind open on what the courts might be entitled to do if he did refer it. That is a matter I do not have to go into, but, in regard to the President's right to refer it to the Supreme Court, in my view he would have that right. If that is correct, I do not know whether it assists Senator Martin in any way.
I come particularly to the language of the motion. Out of kindness I will not refer to the proposed amendment. I have learned a great deal from this debate. I should explain that I was not in Ireland. I arrived here last evening accelerated by the knowledge that the debate was to take place. I have been learning throughout this debate what it is all about. It is very significant that the language used at  paragraph (b) in the motion is: “that, arising out of the armed conflict now taking place in Northern Ireland...”. That is very interesting and important to me because here we have a clear, positive and definite declaration of the limitation of the jurisdiction of this State and a recognition that our jurisdiction does not extend into Northern Ireland. If it did, we would be talking about armed rebellion. We are talking about armed conflict in Northern Ireland and, by definition, we are saying it is outside our jurisdiction.
That is important in relation to what I understand has been the ameliorative policy of the Government in the debate on Northern Ireland. It is also a pointer as to the reason we are having this legislation. It is a pointer to the advices which presumably the Minister has received as to the perpetrators of the assassination of the British Ambassador. We will not deprive ourselves of any of the powers requisite to prevent these sort of shameful deeds being carried out through lack of executive power. A lot has been said about civil liberty and freedom. Speaking for myself I cannot give a philosophical disquisition sufficiently adequate to satisfy the appetite of Senator Higgins, but I will say this. Politics in the abstract, as distinct from party politics, has interested me since I became conscious of the capability of reasoning. One of the problems which has always been at the centre of my mind is what power has the State to pass any law. What power has the State to restrict any of us in any relationship? What are the great themes which we ought to be thinking about in relation to the existence of any policy, the existence of any State.
In case the Minister is concerned, may I say I am in full support of this measure. More and more I find myself valuing freedom, freedom in all its forms. I would here take even the Marxist position that you cannot have freedom if you do not have a sufficiency of economic and material goods. Of course the greatest tyranny that has been foisted on the world has been in the name of Marx. More  of that on another day and in another place maybe. On this motion I would adopt the phrase of Senator Mary Robinson, whose contribution I found very stimulating, even if I did not wholly agree with all she said. There was the phrase about being miserly in relation to the powers we give the Executive. I would agree generally with the view that intentions are not enough and yet, when one has said that, one goes back to the sort of British situation. Britain does not require any motion of this knd to enact emergency powers legislation. There are no restrictions on the British Parliament of the kind the people chose to place on this Parliament and on these Houses.
When placing these restrictions on these Houses, the people chose to give this particular liberty to the Houses so that their liberties, declared in other parts of this document, could be powerfully defended. So much did they value them that they said: “With all the rights we want, and all the rights we are giving ourselves and we declare we have, there is nothing here in relation to these rights, nothing about the separation of the Executive or anything else, nothing which shall invalidate any law which is passed, if both Houses pass a resolution of an appropriate kind.” The people conferred that power on us in a democratic way and have maintained it ever since its full amplitude came into existence in 1941, if I am correct in my date.
On the question of civil liberty I am afraid the phrase “civil libertarian” was used by somebody—a very ugly word—could we get rid of it? What on earth does it mean? People believe in freedom, or they do not believe in freedom, not civil libertarian. That is a new word. I would prefer civil liberty. A libertarian sounds like somebody stuck in a library trying to find out what is wrong with everything.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: If you get rid of civil liberties you get rid of civil libertarians.
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: With great respect, it is probably from some  sociological treatise the Senator has either read or written. I do not know. Whether read or written, it is a word I do not like. I want to go back to this matter of civil liberty, if I may, exercising my liberty not to be interrupted by Senator Higgins. These proceedings could not take place in this House without the order that exists, without the benefit conferred on us by the Leas-Chathaoirleach's presence to see we behave ourselves. Civil liberties need to be regulated and the Articles with regard to liberty and personal rights all provide that they must be regulated. I cannot simply enjoy mashing up my dog, in public at any rate. There would be laws enjoining me from doing so. There are great philosophical questions arising as to why I should be prevented from tearing my cat apart. Senator Higgins has called me a conservative this morning. I suppose I am a liberal conservative recognising the onset of socialism and the threat to liberty which it poses and I do not think he will get socialism quite of the kind he thinks. The great problem for socialists—and I accept that he is a socialist—is that they should really be directing their minds to how they will maintain the civil liberties they claim they are attached to.
All the forces of the world are moving towards socialism. I am not talking about revolutionary forces. I am talking about the coagulation of capital, technology, and the most important thing of all, the regulation of technology. This will give more and more power to the State. The more revenue the State gets, receives and extracts, the more it distributes and so on. All of this is inevitable.
On this question of liberty, the cornerstone of the whole thing is the State. It is the guardian of the people's liberties and it has to strike a very delicate balance on this question of how it regulates people in the exercise of their liberties. It has to face with courage all challenges to that cornerstone, anything that might make it crumble, anything that might make it weaker. If it collapses what comes about but anarchy, the war of every man against every man where  the life of man is nasty, brutish and short. That has been the position of 1,800 people in the figure given in Northern Ireland, the place where the armed conflict gives rise to this motion—nasty, brutish and short. This Executive and these Houses must be concerned to see this does not become the life of the citizens of this State. In so far as they are nasty, brutish, short, one must seek to make them pleasant and beautiful and longer and happier. In so far as the State has got a jurisdiction for its existence at all, it is to improve the lot of all the people. People talk about civil liberty as a matter of justice. Right, but justice is a manifold thing. There is the justice of ensuring that the chap who orders the round of drinks pays for it. There is the justice which is so much part of the laws enacted by these two Houses, social welfare provisions, provision of money for education, provision of money for health, laws regulating the safety of the people on the roads, all the laws relating to the distribution of goods between people, taxing laws, trying to make just.
There is the duty which every citizen owes the State, that is, the general justice upon which all the rest of the system depends. If that collapses you have no chance of remaining one of the—what is it? Let us face it. Somebody called us the so-called democracy. I would rather live in this so-called democracy, and so would most people, than live in one of the very many unions of socialist republics that exist. Before Senator Higgins even begins to interrupt me I would refer him to all the publications of Index which cover, incidentally, South Africa and Chile and the persecution of the free in Czechoslovakia and Poland, and the current issue is particularly good on the treatment of the Romanians, if you are interested in that field. This is the sort of ground we do not want to wander into.
This so-called democracy is good democracy as far as it can be. It is a poor democracy, and it is a pity people do not recognise its poverty. It is a poor democracy in the sense  of the resources available to the people, the limitation and constraints that are imposed on all Governments because of the limited resources of the people. It is poor in the economic sense, but it is rich in tradition, and rich in its potential, and it is rich above all in the intelligence and the goodwill of the people. I believe that the economic position the country is in can be and will be transformed in due course.
With regard to this particular legislation I should like to take up a few points which have been made, and no more. Why extend two days to seven? I would have thought, first of all, the Minister has had advice on it. Secondly, the security work done by the Minister, and the forces under him, has been magnificent, and has changed the Government's policy generally, has changed the whole climate of opinion in this State with regard to the Northern Ireland conflict. Senator Martin is entirely right. I always get the quotation wrong. “Lilies that fester smell far worse than weeds.” The Easter lily is smelling fouler far than weeds. That is one reason why I am happy to give the Minister this power if he wants it.
This motion seems reasonable to me. After all, the armed conflict is in Northern Ireland. It is just not going on around the corner. Presumably if you have a chap in for 48 hours and on the 47th hour he gives you a hint as to where you may locate some associate who would be useful to have another conversation with, you may have to get on telex or to get on the telephone or get your boys going into other territories and maybe 48 hours is not just long enough. It certainly is not thought to be long enough in the United Kingdom. They keep them for seven days. It is not thought to be long enough in Northern Ireland where they keep them for seven days. I do not believe for a moment they keep them for less than seven days in France though I would very much like to know from the Minister if he has any statistics on the practices of the European countries in this matter. I would think you will find the powers of detention there are very considerable,  and very much greater than those being looked for under the provisions of these Acts.
The point about the one year is a lot of rot. If you have an armed conflict you would want to be a ruddy prophet to be able to say when the armed conflict is going to end, when the legislation thought to be desirable in relation to it will in fact have to go. One year seems to be fair enough. Six months would be a nonsense. Do we need to have another Bill re-enacting this? It is perfectly open to the Houses to have another debate and to seek to annul an order if, in 12 months' time, there is a different opinion in this House as to the desirability of the thing. I should have thought that the direction of the legislation is towards assisting in the conclusion of that armed conflict, to try to spread our peace from the Republic.
I have been told by a member of the dissolved Assembly in Northern Ireland, on the side which would find it agreeable to join a republic, that the IRA are now fleeing into Northern Ireland to get away from our security forces, that in fact security has become as good as that. If this aids the Government in any way in bringing peace in Northern Ireland, all I can say is I am for it, and we can have another debate when we have enacted that in 12 months' time. Senator Higgins made very considerable play about this phrase “at any price”.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: People will pay a high price for the elimination of savagery.
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: Any price necessary to preserve democracy I shall vote for. We are one of the 25 democracies left in the world. It is worth fighting to remain one of the 25 and there are 100 other pseudos.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: Any price.
Mr. Alexis FitzGerald Mr. Alexis FitzGerald
Mr. Alexis FitzGerald: You can take my position to be expressed in the short epigram in Belloc's Pacifist. I would like to speak it slowly in order that it may fall into every ear and there lie embedded: “Pale Ebeneezar thought it wrong to fight, but Roaring Bill (who killed him) thought it right.”
Dr. West Dr. West
 Dr. West: There is no question about the seriousness of the security situation which faces this country. Within the past few years, the Republic has faced bomb attacks, mainly from outside the State, two political assassinations, kidnapping with political motive, an increasing number of bank, post office and factory raids and hold-ups, the latter crimes mainly committed from inside the State. It is clear that no Government can tolerate such a situation. It is also clear to me, and to everybody here, that the public will support any measures which a Government take to deal with such a situation, provided they satisfy two criteria: one, that they are necessary, and two, that they are not open to widespread abuse. That is the position I find myself in.
I wish to know whether the motion we are debating satisfies these two criteria. So far, I am in the position Senator Martin felt himself to be in, that I have not heard sufficient justification for these powers from the Government side. I find the arguments from the Opposition side more convincing. What I wish to know, among other things, is how will the motion we are debating, and how will the increased period of detention help the situation? One of the things in the back of my mind, because I do not regard the measure which increases the period of detention to be a really serious one, is that the Government must be contemplating more serious measures and other Bills which would be afforded the same status as this Bill. In other words, it would not be possible to challenge them by means of the Constitution and the courts. What is in the back of my mind is, first, have the Government some information about the forthcoming situation which they are not able to give us and the public, which makes these measures necessary? Secondly—a rather hypothetical question—are the Government conplating harsher measures which would fall into the category of the Emergency Powers Bill? It is a major step to pass this motion, but I do not regard the Emergency Powers Bill as such a major step. Passing this motion leaves the door open for harsher measures which could follow. That is one of  the things that worries me about agreeing to this motion.
While we remain in the present position with this burden of history and mythology, while Articles 2 and 3 of our Constitution remain, and while Britain remains in her present relationship to Northern Ireland, I regret to say we shall always have an IRA type problem. The real problem which has to be resolved—and it is one of immense difficulty, but we must not give up trying to resolve it—is the Anglo-Irish question. Another thing that worries me about this package of security measures we are discussing, and which we will discuss over the coming weeks, is that they could be used as a substitute for political activity by our Government. I would urge that such security measures, which are negative measures, which may be necessary at a certain time, must never be seen as a substitute for the hard political work that must be done if we are to progress, however slowly, towards a political solution of the Anglo-Irish problem.
A certain stalemate has been reached and one of the causes for the stalemate is that the British Government, whose interests in this are not the same as ours, are treating the Northern Ireland problem as if it was an extension of the problem of devolution for government in Scotland and Wales. If I were a member of the British Government I would see the problem of devolution in Scotland and Wales looming large in front of me. I would be very cautious about making any moves in Northern Ireland which would prejudice the problems which are certain to arise, probably at the next general election, in Britain. Very good judges of the political scene in Scotland have told me it is quite likely that, at the next general election, the Scottish Nationalists will have a majority of the seats in Scotland. That is something which must be on the minds of the Labour Government in Westminster, particularly because if the Scottish Nationalists win more seats they will be taking seats from the Labour Party. The British Government put in order of priority the problems of devolution for Scotland and Wales, with Northern Ireland  somewhere else down the list, and no move will be made in Northern Ireland which will prejudice the problem of devolved government which is being discussed in Britain at the moment.
It is up to our Government to point out that we see the situation totally differently, that there is no connection between the Northern Ireland problem and the problem of Scotland and Wales, and that these reasons must not be used as an excuse for inching forward, however slowly, on the Anglo-Irish problem. I have said that there is a process of slow but sure British disengagement going on in Northern Ireland and that some day down here we will have to face the consequences. One of the troubles is that we are even afraid to talk about these consequences. The task facing our Government, and the Government in Westminster, is to try to create a political atmosphere in Northern Ireland in which the two sides of the community can come together and agree.
One of the encouraging features in the present situation, as many speakers have pointed out, is the series of peace marches which have been going on for two or three weeks. I took part in a small march in Cork last Saturday. There were enormous demonstrations in Dublin and Belfast and this is something growing and strong and something I hope the politicians will not attempt to take over. It is a very genuine feeling of the people on the ground, particularly in the troubled areas, that things have just got out of hand, that the paramilitary solution is no solution and the regrettable opposite to that is that politicians themselves have failed to provide a solution.
That is no reason why we must not go on and continue to work and it worries me that this legislation, this emphasis on increased security, may be used as a substitute for the hard political work that we all know must continue to be done if agreement is eventually to be reached on the Anglo-Irish problem. It does not encourage me when the Tory spokesman on Northern Ireland gets up and publicly enthuses over  the measures which we have taken here or are about to take here or are contemplating here, saying that the present British Government are being shown up as not being stiff enough in the North and that they should take a lesson from the Republic. That does not encourage me one bit because our interests are different from those of the British Conservative Party and the British Labour Party. They are our own Irish interests and that is what we should be looking after. As I have said before in this House, it would not displease me if, when there was necessity for disagreement between the Irish Government and the British Government, this disagreement came out into the open and was seen by all because there are many occasions in which our interests differ and this should be made clear and we should not be afraid to hide this. In no way am I advocating that we should deliberately allow relationships with the United Kingdom to deteriorate. Far from it, but when our interests differ, then we should be clear and distinct and I think that is the duty of any Irish Government.
So faced by a serious measure such as the one we are debating, I do not regard myself as having enough background knowledge as to why at this time we are taking these steps. I do not think that the Minister has given us cogent reasons in his address. I want to know how these measures will help to deal with the problem of violence. I do not see that this motion at present is necessary. It could be open to abuse, and so I am distinctly unhappy about it. I look to the Minister to fill in some of the gaps which I believe have been left in the arguments on the Government's side.
I can readily foresee situations in which this motion would be passed in this House practically without debate. It is quite clear that this situation may indeed arise but it has not yet arisen. Perhaps the Minister and his Government have some information which leads them to believe that that day is not far away, that we are facing a deepening of the crisis. However, it  does not seem that at the moment these measures are absolutely necessary and I do not see how they will help the immediate situation. I know that most of my constituents would back me up in saying that at the appropriate time we would support every measure which is necessary to give the Government powers to deal with the problem. The question that hangs over this debate and has hung over it since it started is: has this moment yet arrived?
Minister for Justice (Mr. Cooney) Patrick M. Cooney
Minister for Justice (Mr. Cooney): A Leas-Chathaoirleach, this debate has highlighted the dilemma which I think faces every democracy at some stage and, perhaps in the modern world we are living in, is going to face democracies more and more frequently: the dilemma of protecting itself and the freedoms which democracy gives to its citizens and at the same time preserving the very freedom themselves from attacks from malevolent people who are opposed to the democratic State. Senators have expressed their views on this dilemma with varying degrees of puzzlement, and because it is a dilemma it is impossible to get a totally satisfactory answer to it. One's answer and attitude to it would depend on condition, environment, political affiliations, a whole number of factors. Many of the answers I would give and the point of view I would express have been very eloquently and adequately put forward by Senator Alexis FitzGerald. He removed many of the theoretical aspects away and exposed the reality as far as the man in the street is concerned. In order to debate this matter properly we have to debate it in the context of the real world we live in and not in academic, abstract terms, because democracy as far as we here are concerned is a real thing, affecting us in our daily lives, affecting the people we represent. It is in that context we have to debate it and it is in that context we have to look to its protection.
The Government were persuaded to ask the Oireachtas to declare a state of emergency because of the actual situation which exists on this island. I would recall to Senators some of the points I made when opening the  debate. I indicated that there were two recent atrocities, the murder of the British Ambassador and the use of explosives in Green Street courthouse; that these two atrocities raised the challenge to the State and its organs to a new plane in that they were directed at the discharge of two functions fundamental to the government of the State. There have been atrocious acts here in the past. There have been bombings. Indeed, there have been murders. There have been very worrying armed robberies and gangster manifestations of various degrees of seriousness. But these two acts to which I refer represented a fundamental challenge to the institutions of the State. As Senator Alexis FitzGerald has so eloquently pointed out, we cannot distinguish the State from its citizens. We are the State and those attacks were challenges to us and attacks on us as citizens and on our freedoms. As I say, they were the culmination of a whole series of worrying actions.
I might recall for the benefit of Senators some of the most noteworthy —and this is not a comprehensive list—of these atrocities that took place in 1976. A couple of days ago we had incendiary devices placed around this city and calculated to interfere with fundamental freedoms. One Senator referred to the freedom to go to your local public house and have a drink without fear of attack. That is a fundamental freedom and is of the essence of liberty. Those attacks a couple of days ago were attacks on those freedoms.
In July there was a bomb in a hotel in Galway. Earlier in that month there were bombs planted in hotels throughout the country. These were interferences with the fundamental freedoms, with the civil liberties, with the human rights we have heard so much about in this debate. These were real interferences with those rights— the rights of the owners of those hotels and of the staffs to work in them and the visitors to come to them without fear. The British Ambassador and Miss Cooke were murdered in July. Again in July we had the escapade in Green Street courthouse when bombs were used in one of the fundamental institutions—in  a courthouse, the place where justice is dispensed, the very hub of democracy.
In May there was a bomb explosion in Swanlinbar, the third outrage in that village. In May too there was a shooting incident in Cavan where there was a group of people in the local public house on the eve of a family wedding. A gunman came in and indiscriminately opened fire on those citizens. Their liberties and their human rights were abrogated in no uncertain fashion by that gunman. They are the liberties and the human rights that the Government are concerned to preserve by putting an end to that sort of situation where the people of the country cannot go in absolute safety and without fear in any part of the land, at any time of the day or night. That is the duty the Government have to discharge. Because it is not possible to have a situation without those fears as of now and because that situation has culminated in this direct challenge to the institutions of the State—and, as has been pointed out, that challenge is to us as citizens— the Government feel that it is necessary to ask the Oireachtas, the Parliament of the country in whom the ultimate responsibility lies for protecting these freedoms, to declare that an emergency exists in this country. It defies reason and common sense to suggest that there is not an emergency facing us at the moment.
On the Opposition benches there was a high degree of questioning as to whether an emergency exists. Senator Eoin Ryan compared the situation now with the situation in 1939 and came to the conclusion that this is different now and therefore no emergency exists. Of course the situation now is completely different from 1939. War on a wide scale was about to break out on the Continent of Europe and that had all sorts of consequences for us— rationing, censorship, black-out, restriction of motorcars, all that sort of thing—and all emergency powers had to be quickly taken to deal with that. That was a different type of emergency from the emergency that faces us now. We do not live in normal  times. I do not think anyone would suggest that the present times are normal. When they are not normal, they must be abnormal. They are not ordinary times; there is an element of extraordinariness about them, an element that sets the scene and justifies this Parliament in declaring that an emergency exists.
It may not be an immediate crisis. The distinction was made between a crisis and an emergency. There may not be an immediate crisis facing us but that is not to say we are not in a situation with many of the elements of emergency. If every citizen of this country is not free at any time to go without fear in any part of the land, then an emergency situation exists and that, unhappily, is the situation here at the moment. Despite the best efforts of the Government, despite the best efforts of the Garda supported by the Army, and despite the hostile public opinion to the men of violence, they have nevertheless succeeded in creating a climate of fear. People have in the back of their minds the vision of the gangster with the mask over his face hiding in his shame with the gun in his hand, shielding his cowardice. That vision is pretty uppermost and pretty prominent in the minds of the Irish people.
I am sure every Member here has had the experience of somebody coming to him with some sort of information and when he says “Why didn't you go to the Guards”, he is told: “Ah, I did not like to. You know these fellows”. There is fear in this country and so long as there is fear in this country there is not liberty. We have a duty to recognise that and take steps to remove that fear and to meet force with the legitimate force of the State, backed by this democracy and these democratic institutions.
That is why this Government are coming before this Parliament and asking this Parliament to declare that a state of emergency exists. It was not something which was done lightly, nor was it something which was done for window-dressing, nor was it a matter of shadow-boxing or of parliamentary melodrama, as somebody else expressed it. The Government are in earnest  about it. The Government genuinely feel that we are in a situation with the elements of emergency and that this should be recognised by the Parliament of the nation. The emergency arises largely from the armed conflict taking place in Northern Ireland because, apart from the general climate of uncertainty and indeed fear that exists here, many of the atrocities that have been perpetrated here have been caused directly by persons from that jurisdiction and indirectly by the cult of violence which has grown up in that jurisdiction and which is rampant in certain ghetto areas of it, something for which the “godfathers”—and I do not have to spell out what that word means in Ireland—are responsible. The cult of violence which has led to the use of the gun in the commission of a crime, that has led to such an outbreak of armed and violent crime in this country, is an overspill of the cult of violence from that other jurisdiction. The armed conflict that is taking place up there—and no man with common sense can deny that there is an armed conflict—has given rise to the situation down here which forced us in the Government to come before the Parliament of the people to ask the Parliament to recognise the realities of life in Ireland at the end of August, 1976. That reality is that we are in an emergency situation.
We have asked for that declaration to enable us to give one extra power to the Garda. People have been puzzled as to why we seek, as someone said, so little in pursuance of the emergency resolution. Others have been critical of it that it is too much. I want again to try and put it in perspective and bring this debate back to the realities of the world we live in and get it away from theorising. The power we are seeking for the Garda, the power to detain for up to seven days, will in my opinion be a most valuable weapon in the armoury available to the forces of this State in their fight against terrorism and gangsterism.
I am satisfied from information that has come to me as Minister for Justice in a number of instances when this extra power was being  sought and debated and considered. I had to be satisfied that I would be justified as a democrat, conscious of democracy, conscious of civil liberties, and conscious of the need to have those in mind coming before Parliament. I wanted to be justified in my own mind that I could come with a clear conscience and ask for this measure. I wanted information and I got the information. I am satisfied that in a significant number of cases if that power had been available to the police a certain number of serious crimes would have resulted in people responsible being detected and convicted and punished. It would also have meant that the proceeds of certain notorious robberies would have been recovered. We are not dealing now with the old-fashioned criminal of fiction, the Bill Sykes of low-grade mentality. We are dealing with a sophisticated, ruthless, modern gangster, and we cannot fight him with one arm behind our backs. The present period of 48 hours' detention for these terrorists gangsters is inadequate to keep them out of circulation, to put it bluntly and brutally, until the Garda investigate the crime. Let us face facts. If these people are at large they will impede the Garda, remove evidence and intimidate witnesses. If we want to eliminate this canker of violence and gangsterism from our country, then we have to meet force head-on with the legitimate force of this State. That is why I am asking for this power, which some people feel is only a small power, but I assure this House that it is a most significant power and method in the armoury of weapons available to our police force in the discharge of their duties.
Apprehension was expressed by some members that this power would perhaps be abused. It was put to me that there would be all sorts of unpleasant things happening. It was even assumed that these things were automatically going to happen to people in the custody of our police. I want to reject the implied and indeed in some cases the explicit slander of our police in those  statements. Senator Noel Browne indicated that our police are a decent and honourable body of men. I accept that description of them and they are entitled to it. It defies logic why it should be assumed by some Senators that a body of men entitled to that description, which they have earned since the foundation of the State, as soon as they are given this power will go berserk, lose all sense of decency and discipline and abuse their rights and the rights of the people in their custody. I reject that contention as being unworthy, and unlikely on their record to date.
Senator Martin and other Senators wanted to know what is the position of people who would be arrested. Senator Alexis FitzGerald answered it accurately and fully. Their rights will be the same as they are now. Whatever rights they have to legal advice, medical inspection or visitors, they will be the same under this new Bill as they are at the moment.
The question of the Judges' Rules was raised. The Judges' Rules do not deal with what takes place in custody. All the Judges' Rules provide is that statements elicited while in custody are admissible in evidence only if taken in accordance with the Judges' Rules. That will still continue to be the position.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: Could the Minister clarify whether the person held for the seven days would have his legal adviser present when being questioned by the Garda?
Mr. Cooney Mr. Cooney
Mr. Cooney: Whatever rights he has now to have his legal adviser present he will have under the new Bill.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: The Minister is aware there is an unresolved point about the right to a legal adviser?
Mr. Cooney Mr. Cooney
Mr. Cooney: If it is an unresolved point this Bill does not propose to resolve it. Whatever the law is at the moment will continue to be the law.
Mr. Yeats Mr. Yeats
 Mr. Yeats: Does the Minister not know what the law is? The Minister must know what the position is.
Mr. Cooney Mr. Cooney
Mr. Cooney: There can be occasions when the law is not resolved and when the legal position cannot be defined explicitly. There are certain legal situations which stem from the common law which is a mixture of judicial precedent and custom. Over the years as these customs grow, judicial decisions are given in succession, putting glosses on earlier positions. The contemporary situation changes. The circumstances in which an earlier decision was given by the court change with the passage of time and the legal decision which was relevant to a particular period might not have precisely the same relevance to another period. It is in that context that I say the legal position is unresolved and that the law may be and often is uncertain.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: Would the Minister be prepared to ensure that legal advisers could be present when there was questioning of a person during——
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: There will be ample opportunity to explore this at a later date, and perhaps the Minister might be let continue with his reply.
Mr. Cooney Mr. Cooney
Mr. Cooney: We can have a Committee Stage debate on the Emergency Powers Bill when we come to it. What I am dealing with are the broad principles and some of the broad criticisms made of the powers proposed to be taken by the Government. I reject any suggestion that the Garda Síochána, who have served the State honourably and well, are going to suddenly become monsters and fly in the face of their discipline and training and of all their normal instincts. They have a good relationship with the public and are conscious of the need for that, and I am confident that the Garda will continue to maintain that relationship.
On that subject I might mention that recently there has been a barrage  of allegations and accusations against the Garda alleging ill-treatment of persons in their custody. I can deal with that in more detail when we come to the Bill, but at this stage I want to remind the House that the origins of the accusations are from the terrorists and their organisations and their fellow-travellers. Coming from those sources they carry a certain amount of weight, but a very small amount of weight indeed, and make no impression on the public nor do they cause any public anxiety. This is a recognised ploy. Unfortunately this is taken up and parroted by people who should know better. In the parroting sometimes those accusations get some credence and status which they do not have as a result of the people who originated them.
There are clear legal remedies available to any citizen who alleges that he has been ill-treated by the Garda. Those remedies are available through the courts. I understand that writs have been issued in a couple of cases. I am not aware if they have been followed up, but it is for the people concerned to follow them up and vindicate their complaints through the courts. It will be a matter for the Garda themselves to defend themselves in the courts of the land. In some instances, in trials which have taken place in our courts, it was part of the defence in seeking to exclude statements that such statements had been acquired by improper means, by ill-treatment. In pursuance of that line of defence the State had to show positively and affirmatively that the statements were voluntary and free. In that contest in which the police officers were in the witness box in public court and subjected to full cross-examination by experienced counsel skilled in the art of advocacy, before the Special Criminal Court, which is a court of the highest judicial reputation and tradition, the police were vindicated. I think a more impartial inquiry than that could not be made available. The very courts of the land had the opportunity of investigating these allegations. When the  opportunity arose the allegations fell down very flat indeed.
There has been a worry expressed by some Senators that the power which the Government will be asking for pursuant to the emergency resolution is only the first of many, that we have more in the back of our minds, in the pipeline. I have said before, and this has been quoted by a Senator, that the Government do not contemplate any other measures pursuant to the emergency resolution. The only extra power we are seeking for the State is this power to detain for seven days. I am asking for that power only because I am satisfied on the professional advice coming to me from the Garda Síochána, a decent, honourable force as Senator Browne has described them, who have served this country loyally since their inception. They have asked for this power and have justified it to me. Senators will understand that for reasons of confidentiality and also because of the sub judice rule, I cannot give the details chapter and verse here. They will have to take it from me, a member of a Government elected by the country, take it on trust, that the reasons given to me were cogent and adequate, reasons which I in turn indicated to the Government and which the Government accepted from me.
This raised a further point. We have to consider this emergency package in the light of the traditions of this country. The arguments against it have been advanced on the basis that constitutional rights with regard to this measure are being abrogated, that it is an invasion of liberties, that fundamental human rights are being adversely affected. My answer to the argument that the Constitution is being abrogated in regard to it is that, technically speaking, that is correct. But, as Senator Alexis FitzGerald pointed out, people when voting on this Constitution, implementing this Constitution, took unto themselves a Constitution with this very power. They envisaged a situation——
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: It is not in the Constitution. It was an amendment of the Constitution by the Government of the  time extending the meaning of “time of war”.
Mr. Cooney Mr. Cooney
Mr. Cooney: It was voted on by the people.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: The people did not vote on this extension of what we mean by an emergency.
Mr. Cooney Mr. Cooney
Mr. Cooney: The people had to vote on an amendment to the Constitution.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: No, within a three-year period this could be done by ordinary legislation, not by the people.
Mr. Cooney Mr. Cooney
Mr. Cooney: The original Constitution had to be voted on by the people.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: No, for three years it could be changed.
Mr. Cooney Mr. Cooney
Mr. Cooney: The original Constitution had to be voted on by the people and then this amendment was put into it in time of emergency. The point is that there is provision in the Constitution if that particular thing had to be declared unconstitutional or invalid, for the people to come and challenge it. Even with regard to the existence or the invocation of that section in regard to the Bill passed pursuant to it, our position is no different from that on the other island where there is no written Constitution. The checks and balances which restrain parliaments over there are available also in this jurisdiction. We, the people who have to make these laws, the members of the Government who have to pose them to the Legislature, are subject to all the constraints of the ordinary citizen. We are ordinary citizens and we are as sensitive about our rights because the rights that we seek to deal with are our rights. It would defy reason if we did not want to be careful about our rights.
We know too that we have to face the people in the ballot box and that is the ultimate arbiter of democracy, the ultimate safeguarder of our freedoms. We know that if we are excessive in what we seek to do, if we are oppressive in laws we put forward for  implementation, the people on whom those laws will weigh heavily and oppressively will have the opportunity to turn us out of office. This is a real constraint, a real check and a real balance on any Government. It is the very essence, indeed, of democracy. What we have to do is to ensure that the regime persists and a situation inures that the right of the people to cast their votes in secret ballot will always be available. That is the ultimate safeguard and the ultimate freedom.
It is clear from the traditions of this country that all Governments have behaved constitutionally and no government, with a possible deviation in 1969-70 ever sought to behave extra-legally. This is a strong tradition that is so much a part of our tradition that it now, one might say, has the status of a constitutional convention. The statements of members of the Government, parliamentarians on all sides, the writings of Deputy Kelly that have been quoted who is a member of this Government—all these indicate a climate, an attitude, a sensitivity towards the very idea of democracy and its freedoms. I want to assure the House that we were fully conscious of the need to maintain those freedoms and fully conscious of the need to ensure real liberty, ensure real freedom, liberty from fear and freedom from fear, the ability to go to any part of the country day or night, to ensure such a situation. It was that desire that led us to ask this House, and the other House, to acknowledge the reality of the situation in Ireland today, that we are, in fact, living in an emergency situation. Consequent to that emergency situation we have to have extra-legal powers, extra powers which I am satisfied are needed. I have been given the fullest satisfaction and the fullest information to enable me to assure this House that these extra powers are justified.
In my opening speech—and this seemed to have been overlooked in the debate—I assured the House, and the Taoiseach gave a similar assurance in the Lower House, that there was no intention on the part of the Government to act in an arbitrary manner under the immunity conferred by this  motion if passed by both Houses. I want to repeat that reassurance and I have indicated some of the reasons why it is a valid one. We are citizens ourselves and we will have to face the people at the ballot box. We can point to the traditions of our parties.
The Government are conscious that for them to act in such a manner would be to play into the hands of those threatening our democratic form of government. We realise that there is a delicate balance and that the theoretical position is that tough legislation can in turn provoke a reaction. This is the theory of revolution and that the revolutionaries, in turn, will try to engage in further excesses to provoke further tough legislation and so on until there is a state of chaos and the revolution has happened.
We are conscious of the obligation and the need not to over-react but we are the people charged as of now under democratic mandate to produce a reaction. The reaction we are producing we consider to be the appropriate and an adequate one in the circumstances of this time. We want to proceed at all times in accordance with the rule of law. That is what we are doing. Any legislation proposed will be subject to the courts. Senator Alexis FitzGerald raised the very pertinent point, that the right of the President to mount constitutional questioning is not affected by what is proposed.
We live in a representative democracy and the majority parties in the democratic assembly are taken to represent the majority will of the people until such time as the people, through the privilege of the ballot box, the right of the ballot box, decide to  change that situation. We feel confident that we are expressing the majority will of the Irish people in asking this House, and the other House to declare an emergency resolution, in asking for the extra powers under the Emergency Powers Bill and in the powers proposed under the Criminal Law Bill. We have a duty to the citizens of this State to ensure that the State, which is the citizen, is preserved and that their freedoms and their rights within that State towards each other are fully and completely implemented and vindicated. We think the resolutions which we are asking for today do that.
These resolutions will continue until they are annulled by further resolutions of this and the other House. The emergency powers taken under that resolution will continue for a year, unless confirmed by the Government and brought into force for another year. The resolutions stand until annulled by both Houses of the Oireachtas. It is a matter for the Houses of the Oireachtas, not for the Executive, to decide the time limit of these emergency powers. It may be argued that that is merely a theoretical right; it is not a real right because of the existence of a parliamentary majority.
A parliamentary majority can be changed by the people so, ultimately, it is in the hands of the people to decide what laws are passed in this institution. I would be very happy to face the people on the proposals which the Government have brought before this House today.
Question put: “That the words proposed to be deleted stand.”
The Seanad divided: Tá: 35; Níl: 15.
Tellers: Tá, Senators Sanfey and Harte; Níl; Senators W. Ryan and Garrett.
Question declared carried.
Question put: “That the motion be agreed to.”
The Seanad divided: Tá, 35; Níl, 18.
Tellers: Tá, Senators Sanfey and Harte; Níl: Senators W. Ryan and Garrett.
Question declared carried.
Seanad Éireann 85 National Emergency: Motion (Resumed).