The Gazette 1977

OCTOBER- 1977

GAZETTE

Internment and Detention Without Trial in Irish Law by Brian F. Havel PRIZE COMPETITION FOR HUMAN RIGHTS ESSAY—U.C.D. PART II.

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 8 , 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 161

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) v Lennon 1 in 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."