The Gazette 1977

GAZETTE

OCTOBER- 1977

Internment and Detention

Without Trial in Irish Law

by Brian F. Havel

PRIZE COMPETITION FOR HUMAN RIGHTS ESSAY—U.C.D.

PART II.

Part I of this essay which appeared

in the

AugustISeptember Gazette examined two conflicting

forces — the supremacy of constitutional rights and the

necessity of defending the stability of the State in times of

national emergency — and traced the enforcement of

internment in Irelandfrom the foundation of the State to

the passing of the Emergency Powers Act, 1939.

Part VI of the 1939 Act was balanced on a knife-edge

from the outset, and it required only the humane and

characteristic approach of Gavan Duffy, J., in the

celebrated decision of

The State (Burke)

Lennon

1940, to strike down S.55 as invalid having regard to the

provisions of the Constitution. His review of the

constitutionality of Part VI was given in the context of an

application to the High Court to make absolute a

conditional order of

habeas corpus.

As the law then

stood, the State was unable to appeal to the Supreme

Court against the granting of an order of

habeas corpus,

and the Government had no option but to release James

Burke and his fellow internees likewise detained under a

Minister's warrant. This antithesis between judicial and

executive policy indicated what would consistenly be

liable to occur if the legislature were subjected to ordinary

judicial stricture during periods of national emergency.

The potential of the conflict, was observed in the

consequences which flowed from opening the Curragh

Camp after Burke's case. A week later, on 23rd

December 1939, the Magazine Fort in the Phoenix Park

was raided and over 1,500,000 rounds of ammunition

stolen; some of the persons just released were believed to

be implicated.

Against this background the Government reintroduced

internment in the Offences Against the State

(Amendment) Act, 1940. In practically every respect the

Bill duplicated the provisions of the offending Part VI of

the 1939 Act, so that the President felt obliged to submit

it to the Supreme Court under Article 26. The majority in

this Court subsequently advised the President that the

Bill was not repugnant to the Constitution, and

accordingly upon its promulgation it acquired an

unchallengeable constitutional invulnerability. S.55 of the

1939 Act was repeated as S.4 of its successor, with the

exception that where previously a Minister had to be

"satisfied" that any particular person was engaged in

treasonable activities, under the revised legislation his

"opinion" is sufficient to ground the issue of a warrant.

"Whenever a Minister of State is of opinion

that any particular person is engaged in activities

which, in his opinion, are prejudicial to the

preservation of public peace and order or to the

security of the State, such Minister may by warrant

under his hand and sealed with his official seal order

the arrest and detention of such person under this

section."

The blueprint in Part II of the 1940 Act incorporates a

number of safeguarding devices, distinguishing it from the

unconditional power available to the Executive under the

Emergency Powers Acts 1939-1940. When the operation

of Part II was attacked before the European Court of

Human Rights in 1960, representing an ingenious and

novel attempt to stymie its operation

, the existence of

safeguards in the internment procedure was regarded as

critical to its acceptability. The Court formulated three

types of protection under the Act. The first lay in the

power of the Irish Parliament to annul by resolution of

either House the Government's Proclamation bringing

Part II into operation, and also in the Government's

statutory obligation under the same Act to provide

Parliament with details of the exercise of this power. The

control envisaged was that of a politically representative

body supervising a Government with wide discretionary

powers. A second safeguard was provided in S.8 of the

Act, which established a Detention Commission

consisting of an officer and two judges or experienced

lawyers. The detainee had a right to insist that it

considered whether there were any "reasonable grounds"

for his detention, and if found that there were no such

grounds the Government was obliged to release him. The

Commission also had power to order the production of

documents. The final safeguard was the promise given by

the Government to release anyone who gave an

undertaking to observe the law and refrain from activities

contrary to the 1940 Act, characterised as a political or

effective obligation, rather than a legal one. Article 6 of

the European Convention on Human Rights specifies the

requirements of a fair trial, and the Court patently

regarded the Detention Commission as being a substitute

for a trial and the more closely it resembled a trial, the

more a safeguard it would be. The Court did not advert to

the rather languid method of procedure proposed in the

Act; the setting-up of the Commission, its consideration

of complaints, and the release of detainees if it so

recommended, were to be carried through "with all

convenient speed". This lack of specificity was actually a

disimprovement on the 1939 model, when for example

the Government was obliged to release persons vindicated

by the Commission within one week of a recommendation

to that effect. Even a week's delay was criticised by

Gavan Duffy J. in

Burke's case

as inordinately long,

particularly since a finding for the applicant under the

habeas corpus

procedure entails immediate release. The

Supreme Court in 1940 stressed the availability

of Habeas

Corpus

as an additional and important safeguard against

indiscriminate internment. The Court overlooked,

however, that an applicant for

habeas corpus

under S.4 of

the 1940 Act would be met by a warrant of a Minister of

State bearing the words "in my opinion" and it had itself

followed earlier authority in holding that the Judiciary

was not competent to inquire into the validity of a

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