The Gazette 1973

Offences against the State (Amendment) Bill". The Senate met at 3.00 o'clock that afternoon to consider the Bill and also a motion for early signature by the President under Article 25 of the Constitution. The Minister for Justice, Mr. O'Malley introduced the Bill as follows : "Having regard to last night's explosions in the city of Dublin I have no doubt that this House will decide to pass the Bill, and quickly. It would be regrettable if any members of the House were to regard the Bill as a drastic measure which had to be accepted by them only because the events of last night had, so to speak, left them no choice. It would be unfortunate, as well as being quite wrong, if Members felt that in agreeing to pass the Bill quickly under pressure of events they were agreeing to sacrifice any fundamental legal prin- ciples. I want to assure the House that that is not so. It is not so despite assertions to the contrary by people who should know better and despite similar assertions by people who know better but who choose to say otherwise." As the Minister spoke, those senators who wished to propose amendments were busy trying to scribble them down in time to have them typed and circulated by the end of the second reading. Instead of having at least a fortnight before the committee stage and pro- bably a further week before the report stage it was obvious that we were to be allotted a matter of hours in which to consider this important and vital piece of legislation. Meanwhile, I moved an Amendment, seconded by Senator Horgan, as follows : "That Seanad Eireann declines to give a Second Reading to the Bill on the ground that it is an in- appropriate procedure to deal with urgent legislation having regard to the terms of Article 24 of the Consti- tution." The reasons for invoking the procedure under Article 24 were that it seemed peculiarly appropriate in view of the importance of the legislation, the climate in which it had been debated in the Dail the night before and was being continued in the Senate, and the desire not to leave on the Statute books a permanent piece of legislation which had not received proper parliamen- tary scrutiny. Article 24 provides for the abridgement of the time for the Senate to consider legislation by allowing the Taoiseach—by a message in writing ad- dressed to the President and to the Chairman of each House of Oireachtas—to state that "in the opinion of the Government the Bill is urgent and immediately necessary for the preservation of the public peace and security, or by reason of the existence of a public emergency, whether domestic or international." In which case the time for the Senate to consider the Bill may be shortened as is deemed appropriate and the Bill passed in a matter of hours. The safeguard in using this constitutional procedure is that the Bill would remain in force only "for a period of ninety days from the date of its enactment and no longer unless, before the expiration of that period, both Houses shall have agreed that such law shall remain in force for a longer period, and the longer period so agreed upon shall have been specified in resolutions passed by both Houses.' Had the Government considered that there was a genuine emergency necessitating a swift passage of this Bill then the appropriate machinery was there to be used. As it was, they both got their cake and ate it, because the Bill was passed as though there was an emergency but without the safeguard of emergency legislation. The Bill passed all stages of the Senate at

1.30 a.m. on the Sunday morning. The Motion allow- ing the President to sign it immediately under the pro- visions of Article 25 was also passed and the President in fact signed the Bill later on that morning. In retro- spect this may have been unduly hasty. The Provisions of the Act It is an amazingly short Bill, comprising six sections of which Sections 1 and 6 are definition and title sec- tions and have no importance, leaving the real content in only four sections. Sections 2, 3, and 5 amend the Offences Against the State Act 1939. Section 4, as we shall see, does not purport in any way to amend or refer to the 1939 Act and is not confined to the question of illegal organisations but has much broader implica- tions. Section 2 Power to question person found near place of com- mission of scheduled offence. 2.— Where a member of the Garda Siochana: (a) has reasonable grounds for believing that an offence which is for the time being a scheduled offence for the purposes of Part V of the Act of 1939 is being or was committed at any place. (b) has reasonable grounds for believing that any person whom he find:» at or near the place at the time of the commission of the offence or soon afterwards knows, or knew at that time, of its commission, and (c) informs the person of his belief as aforesaid. the member may demand of the per:on his name and address and an account of his recent movements and, if the person fails or refuses to give the information or gives information that is false or misleading, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment. Comment The significance of this section is that it enables a member of the Garda Siochana to demand the name, address and an account of the recent movements of any person who happens to be in geographical prox- imity to where an offence may have or is believed to have been committed which is a scheduled offence under the 1939 Act. The person in question is not himself a suspect, because, if he were, the member of the Garda Siochana would have ample powers already to arrest that person. Failure to give such information, including an account of recent movements, is an offence for which a person may be liable to a fine or imprisonment. One of the criticisms made of this Sec- tion is that it appears to contravene the principle against self incrimination which has been very solidly upheld by the United States Courts. It is a fundamental principle of law that a person should not incriminate himself by his own words. But if the bystander ques- tioned by the Gardai had in fact been robbing a near- by house, or in some other way engaging in conduct which was contrary to the law, it would seem as though he would have to give an account of this. For such purposes would that amount to a confession in law? It might also be embarrassing, as was mentioned on the floor of the Seanad, if a person had been 39 OFFENCES AGAINST THE STATE (AMENDMENT) BILL, 1972