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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.
OFFENCES AGAINST THE STATE
(AMENDMENT) BILL,
1972
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
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