Seanad Éireann - Volume 85 - 17 September, 1976
Criminal Law Bill, 1976: Fifth Stage.
Question proposed: “That the Bill do now pass.”
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: The passage of the Bill through the Dáil and Seanad exemplifies the main point we made on  all Stages with regard to the package as a whole, that includes the resolution, the Emergency Powers Bill and the Criminal Law Bill. We in the Fianna Fáil Party initially made it plain that we would adopt a constructive and responsible role in regard to this measure, we would seek to have it amended in the Dáil and Seanad and that the contributions would be, on all Stages, on the basis that this Bill in principle is right. The fight against illegal organisations of every hue is a basic and legitimate one as far as the protection of our State is concerned. We maintained at all stages that it could be done best by firming up and strengthening the ordinary law of the land, subject to two reservations in regard to this Bill, a reservation which at all times we had with regard to the incitement section 3 and the reservation which we have just been discussing in regard to section 15. Both these reservations have been met.
The reservation with regard to section 3 has been met very well indeed despite what the Minister states. The section as it now stands does not include any element of curtailment in regard to Press, public or political comment. It did carry that very heavy implication in regard to its original wide drafting. It is now a tightly drafted section that confines incitement to a person who is engaged in the recruitment of people for membership of an unlawful organisation.
Section 15 envisages this important and serious departure of having the Defence Forces in the police area of arrest and search and the limitation of that by not having it part of the permanent legislation is again a welcome amendment. It is an acknowledgment by the Government of the importance of the matter and that it is necessary but only for a limited time and does not form part of the permanent corpus of legislation.
There has been a constructive debate on this Bill in both Houses. Our firm opinion is that this is the only Bill that should have been introduced in the first instance. It does not require any declaration of a national state of emergency, it does not involve any suspension of the Constitution. It is an  enlargement and a strengthening of the legitimate forces at the disposal of the State in the interests of the security of our people. For that reason this Bill has been supported in a constructive and responsible way by us. It is our firm view that that is all that is needed and that in practice this is the Bill that is important. It does not involve any hullabaloo about suspending the Constitution, or about invoking Article 28 of the Constitution and blazoning to the world at large that we are in a national state of emergency in that we have to invoke detention without trial or responsibility to any court or other agency in the State.
This is the way the matter should have been met in the first instance. The mind boggles when one considers how easily all of this could have been got through instead of the amount of time we have wasted, the adverse publicity we have achieved as a country and the damage that has been done to the economy. It was all done by reason of the declaration of an emergency and introducing a detention procedure which does enormous damage to basic human liberty and, in my view, will not advance one iota the cause of security. The cause of security is met well by some very excellent procedures set out in this Bill, the powers of search in regard to vehicles and buildings, the powers in regard to certain procedures after arrest with regard to the photographing and finger-printing are all tough drastic powers which I support.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: Would the Senator support them even for Members of the Oireachtas?
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: I support the powers in this Bill which are needed by the Garda Síochána, whom I respect and who I think are entitled to a respect. Our contention is that that was all that was required. There is no point in giving this excessive power of detention for seven days, depriving people of their liberty for that time, without recourse to the established court procedures, and no need for the suspension of the Constitution and the whole emergency aspect in which that legislation was surrounded. It is an example of a massive misjudgment and miscalculation  on the part of the Government. It is not good enough in dealing with this sensitive security area to have an overreaction attitude on the part of the Executive. It is not good enough to have this hasty declaration of an emergency. It is not good enough to be shooting off, figuratively, in that manner. It is all wrong and what could have been a constructive, low-key and effective debate on this measure alone has, unfortunately, turned into another type of debate we could have well done without.
The debate, as originally started by the Government on the declaration of an emergency and the detention provision under the Bill consequent on that, was triggered off as a political decision by the Government. It has done no service to this community. In fact, it has done a great dis-service to it at every level, at the level of civil liberties, at the economic development level and at the security level. This Bill, as amended, is the right sort of measure that will be a useful instrument as far as the Government and the Minister for Justice are concerned in dealing with security problems. We could have discussed this Bill in peace and quiet and in the ordinary parliamentary manner. The Minister could have introduced this Bill during the normal parliamentary times, that is, either before or after the Recess. It would then have got expeditious passage and would have been largely supported, with the two main reservations I mentioned. We would not have had this nonsense which has done nothing but harm to this country at every level.
Mr. Harte Mr. Harte
Mr. Harte: I will be very brief. Everybody has co-operated on this Bill. It would be wrong if I did not stand up at this point and make the Labour Party position clear. There is no doubt in my mind that there was a view among the rank and file of the Labour Party that a serious situation was developing. Whether that could be determined as an emergency I do not know. I learned these views first-hand when travelling around the country to various meetings.
It is only natural in a party of the left that people would make serious claims  if they thought civil liberties were being threatened. I do not feel offended when I hear these views being expressed. Those voices were raised in a vigilant and courageous way. Therefore, I am not sad that somebody raised this point. Many people on the ground floor in the Labour Party believed that the situation affecting the safety and security of the State was coming openly from the North. They were very concerned about this and reservations were expressed here. While it is right that those views should be expressed here, nevertheless, we must realise that other people hold differing views.
After everybody, including my colleagues, had made known their views on this legislation, there was a recognition of the ugly and unavoidable truth that men with evil minds were a danger and should be dealt with severely. Our party recognised the many contrary influences that were at work.
Some of the suggestions made even by the Opposition were reasonable enough. It is always very difficult to put something on paper and be certain that the floodgates will not be opened. This is one of the big problems when drafting Bills and amendments, even the Emergency Powers Bill. Some points might have been considered and conceded by the Opposition, but it was a question of how this could be done. If it had been written in a certain way, perhaps all the efforts made in the first instance would have been nullified.
Having resolved all our arguments, having recognised that there were many paradoxes, and despite the arguments against the emergency powers and the motion to suspend part of the Constitution, I feel that the contributions of the Senators—and I should like to congratulate the Opposition particularly on their approach to the Criminal Law Bill and their reasonable attitude to their amendments, and so on—are clearly indicative of the fact that they recognised from the start that some very substantial powers would have to be given to the Government to deal with the terrorists, irrespective of whether they were UDA, IRA or any other subversive organisation.
While some Members may not have admitted an emergency, all were conscious  of the fact that there was a certain amount of urgency in the situation. In that sense, I do not think there was a great deal separating the two sides. The evidence of that lies in the fact that when we came to deal with the Criminal Law Bill everybody co-operated. People who had reservations —including some of my colleagues— recognised that there were contrary poles and paradoxes in this boiling pot and co-operated.
To sum up, I am at one with my colleagues in the sense that I think they were right when they raised a vigilant and courageous voice about their concern for civil liberties. Hearing the Minister's reply, I was satisfied that those points had been adequately dealt with and that the fears expressed have been allayed to my satisfaction and I am sure to the satisfaction of most of my colleagues.
On the Emergency Powers Bill we might have had some difficulty about the question of the world of reality, but on the Criminal Law Bill, it was not possible—and nobody was trying—to shut out the drab world of reality. We have done a good four days' work on these Bills in the Seanad.
Mr. M.D. Higgins Mr. M.D. Higgins
Mr. M.D. Higgins: I have spoken on the other two elements of this package. The Criminal Law Bill, 1976, has been rightly treated as non-contentious. All of us realise that there are many very important sections in this Bill. To emphasise the consistency of my arguments right through I should like to point out that I do not think people who incite others to commit murder and pinpoint people who should be murdered, for example, people in Sinn Féin Kevin Street, should be immune from the law. In all the speeches I made here, I said that the Minister would have the support of people like myself in dealing with such people.
This debate has almost as an aside introduced a general debate as to civil rights and the certainty of procedures in the process of law in the criminal area. When we have passed this package I hope that those remarks which have been made in the course of the debate on the three Bills, particularly those in  relation to the social aspects of the criminal law, will be examined very seriously by the officials in the Minister for Justice's Department, so that we may look forward to a complete revamping of the criminal code. At least I am aware of the archaic structure and the archaic codes that the Minister has inherited. For very long the criminal law was not regarded as something that should be amended as a matter of urgency. It should be amended when passions have cooled on this package. Let us hope that the serious social considerations of the background of criminals, consideration of the necessity of our law not only being above all else certain but also being sensitive, will be carefully examined. This debate has been extremely valuable. It appears that the Minister is confident that Article 40.3 of the Constitution prevails above all else, and that this Article invites the Legislature to legislate definitely for the extension of individual freedom. I would like to think that the response in the year that lies ahead in the Legislature will be generous and that we can look forward to particular legislative measures which will translate this spirit into action. On this Bill it is quite right that where crime can be pinpointed, that where people can be pinpointed, penalties should be severe, particularly when people threaten life.
Long speeches on civil liberties by members of the Labour Party are not some kind of indigestive rumble in the party's procedure. The Labour Party, myself it's vice-chairman on two occasions, it's national executive member on all of the occasions I have stood for election, realise that all of our aims and our purposes will be achieved in an atmosphere which respects the maximum of civil liberties. The opinion which was put forward here by members of the Labour movement, such as myself, was not a devious opinion it was a consistent historical opinion, one that will be put forward in future by members of the Labour Party as long as we represent its majority voice in this country among the movement.
Mr. Cooney Mr. Cooney
Mr. Cooney: I welcome the Opposition's attitude to this Bill and their co-operation in giving it a speedy passage. I am glad that I was able to  accept amendments in the other House which left them feeling happier about the Bill. I do not want to reopen the debate now on the extent or effect of the amendments, but I was glad to be able to accept them without in any way weakening, disimproving, or taking from the Bill. That is part of the parliamentary process and it is not a matter for comment. It should be accepted as part of the normal routine of parliamentary debate, as part of the law making procedure, that the debate exposes perspectives on the original draft, not originally visible, and that when they come into the light of the debate if they have adverse possibilities these should be cured by amendments. There may be disagreement as to whether they have or have not certain possibilities or consequences. If the amendments can reconcile two conflicting viewpoints, all the better. This happened on a number of occasions and I was glad to be able to agree with the Opposition and accept their amendments.
It is somehow infantile to consider it constantly in a contentious adversary situation. There is a certain amount of conflict where political adversaries are propounding different cases, and consequently we are adversaries in that sense, but we need not be like that all the time. Sometimes the exigencies of the political situation force that stance on the Opposition or possibly on the Government, but more likely on the Opposition because the Government are brought along by the needs of the situation and are constrained to propose legislation having regard to what they think is the current need. It was in that context that the Government brought forward this entire package of the Emergency Resoluton, the Emergency Powers Bill and the Criminal Law Bill.
Senator Lenihan in welcoming the Criminal Law Bill today contrasted the way that he was able to welcome that Bill but had to so bitterly oppose the other Bill. I was disappointed that the Opposition opposed the other Bill, and indeed surprised, because Fianna Fáil are not a party who often make misjudgments about public opinion or public reaction, but they have made a misjudgment in this case. The public  welcomed the emergency packet and welcomed the strengthening of the powers of the Garda to detain for up to seven days. It was an unusual misjudgment on the part of the Opposition. I was puzzled as to why they should be opposed to it. They would hardly object on principle to this comparatively narrow power of detention for seven days, though of course this was the peg on which they hung their opposition hat. It does not stand up to examination that they should object on principle when as recently as 1970 they proposed, not just seven days, but internment, which literally wipes out all human rights. I think it was politics. Fair enough. This is a political assembly and, if they saw what they thought was a political opening, they were entitled to take it. The political opening they thought they saw was a misunderstanding of the Coalition and of the parties within the Coalition.
The tradition within the Labour Party; a tradition which socialist parties in the rest of Europe have, is to tolerate dissenting voices within the party. Within this Coalition Fine Gael are not a party where dissenting voices are heard to the same degree as in the Labour Party, but they are heard to a degree and are tolerated. This is what Fianna Fáil find strange, because traditionally Fianna Fáil have had an authoritarian highly disciplined structure. When a Government was falling literally to pieces Fianna Fáil Ministers blandly would say; “What crisis?”. This is an indication of their authoritarian, highly disciplined nature. It is good, possibly, that one party should be like that, but other parties happily have different traditions. Part of their tradition, is to tolerate dissent. Fianna Fáil made the mistake of thinking they were homing in on something hot politically. That it was a mistake is proved by the package that has now passed through both Houses successfully. As I say, it was a perfectly valid stance for Fianna Fáil to adopt, but in the situation as we have seen it, it was a mistake.
I am glad now to be able to bring this entire debate to a conclusion in the happy knowledge that the package proposed by the Government has been endorsed by the Oireachtas. I have no  doubt whatever that this package will add immensely to the fight against subversion and terrorism and we can hope that, as it goes from this House with unanimous support of the Criminal Law Bill at least, that the terrorists will get the message that they might as well  stop because the people are not going to tolerate them any longer.
Question put and agreed to.
The Seanad adjourned at 1.25 p.m. sine die.
Seanad Éireann 85 Criminal Law Bill, 1976: Fifth Stage.