I find it difficult to know where to begin. I have special difficulties, since Senator Tierney reminded me that I would need to have a board of exegetes—I think he called it—to interpret me. It is very easy to suggest that one can never talk in plain language and that one is always talking oracularly. I have been accused of it a good deal. I have always tried to say, as simply as I could, exactly what I meant. Because things are not always black or always white, when I try to express exactly what I mean I am accused on the one hand of saying they were black and on the other hand of saying they were white. When I have been talking to the Irish people at any time, or talking to any assembly, I do not think that anybody who really wanted to understand had any difficulty in following what I had in mind.
This legislation, as I am sure the Minister has pointed out to you in his introduction, is brought in because of a certain High Court decision. It did not matter what view we took of the decision, whether we thought it right or wrong; we did what it was our duty to do, we acted upon it. That, to my mind, is the highest expression of acceptance of the rule of law. Judgments will be given; you will find lawyers, having stated cases to judges, holding—even after the judgment has been delivered—that the judge was wrong, but accepting the finding. That must be the way; there must be some body to determine a certain issue and somebody to determine it finally. We accepted the court decision as finally determining the issue of the liberation of the men concerned. If it should happen that the interpretation taken by the courts is different to that intended by the Legislature, the Legislature has, in general, the power of changing the law so that its own intention—taking into view the decision of the judges—will be expressed. Again, even a second time, you may find that the judges do not accept the interpretation that was intended and it may be necessary for the Legislature to go a second and even a third time to the task. Surely, however, that ordinarily should not happen. Ordinarily, the Legislature—with expert draftsmen and people who are experienced in preparing legislation—ought to be able to express itself in a way in which there would be no difficulty about getting from the courts the interpretation which was intended.
Where there is no written Constitution there are rarely difficulties of a serious character, when there is a difference between the judge's interpretation and the intention of the Legislature. If some interpretation is taken which was not intended, the Legislature of itself can mend its hand. Where there is a written Constitution, however, to which the Acts are subject, if it is held by the judges that a certain Act which may have been found necessary, say, for the safety of the State, is contrary to the Constitution, you have got to change your Constitution or devise some other methods of getting the protection required. In this case I can say quite frankly that the Government, its advisers and all of us interested in passing the Constitution and in the meaning of the Constitution were taken by surprise when we found that the Act which was passed here was held to be unconstitutional. We were still more surprised when we found that the Supreme Court held that there was not a right of appeal even in a case in which the validity of an Act—in view of the Constitution— was in question.
It is in those circumstances that we are coming to the House. A certain measure was felt to be necessary for public safety. Last June we passed a certain Act intended to meet, not merely times of crisis, but the peculiar circumstances of our conditions here even in ordinary peace time. That instrument for preserving the safety of the public was broken in our hands by the court's decision. We have got to remedy that situation. It is suggested to us that we should remedy it by amending the Constitution. There is no use in minimising my connection with the Constitution; no doubt, I had a principal part in determining what the Constitution should contain. On that account I have, perhaps, more feeling about it—as was suggested here —than a person who had nothing to do with its drafting. But it is not my Constitution; it is the Constitution which was recommended by Dáil Eireann to the Irish people and which was enacted by the Irish people. This is much less my Constitution than an Act of the Oireachtas is the draftsman's Act. This Constitution is a basic law enacted by the Irish people; I think it is very unwise to start tampering with it and changing it to meet changing circumstances. If particular circumstances have to be met, it is desirable to meet them within the Constitution.
After three years, following the installation of the President, we will have to do that, unless we take a plebiscite, as it cannot be changed otherwise then. Within three years it is possible to change it by legislation, unless the President takes the view that the change is of a vital character and is of such fundamental importance that the people should be consulted about it. Within three years, therefore, it can be changed by legislation with, if I may call it so, the concurrence of the President. If the President takes the view, in regard to any proposed change, that it affects the Constitution fundamentally in such wise that the people's act would be changed without their consent in a vital matter, then he would consider it his duty to refer it to the people and we would have to get the change by means of a plebiscite. After three years, if a difficulty like the present one arises, the change will have to be made within the Constitution and not by changing the Constitution itself. During these three years, if the change suggested appears to the President to be of a fundamental character, it would be his duty as guardian of the Constitution to see that the change was referred to the people. I was taunted in the Dáil with the idea that I was afraid of having the matter referred to the people. That is not right; it is not that. A plebiscite is a costly affair; it means a campaign to educate the people regarding what they are being asked to decide, and it means a certain amount of disturbance. It is not a thing to be lightly undertaken. From these points of view we, the Government, came to the conclusion that the change ought to be effected without, if possible, a change in the Constitution.
That brings me to another matter. We ought not to change the Constitution, in any case, before a change has been proved necessary. As I pointed out in the Dáil, what has been decided in court is this: a High Court judge has, under habeas corpus, caused to be liberated by his judgment a number of people who had been interned. In giving his judgment in that case, he expressed opinions about the unconstitutionality of the particular Act under which they were interned. In accordance with an Article of the Constitution which we believed gave us a right of appeal in all cases, we appealed, but the Supreme Court held that an appeal did not lie. What has really happened, therefore, is that it has been definitely and finally decided by the Supreme Court that an appeal does not lie. The Supreme Court has not given a final judgment on the Act, and it is only the opinion of the Supreme Court which can be a final judgment; they have not said that this particular Act was unconstitutional. In other words, the opinion expressed by the High Court judge could possibly be reversed by the Supreme Court, and I think it is right that that issue should be tried, if there is any way of trying it out. There was an appeal, and it was to try out that issue rather than the mere question of the liberation or retention of the particular prisoners that was the cause of the appeal.
We wanted to have that matter tried out, and it seemed to us, at any rate, that the judge, in delivering judgment, and in giving what was called a speaking order, had the view that an appeal did lie. The Supreme Court have definitely said that an appeal does not lie, and therefore, that method of getting the question of the constitutionality of the Act tried has failed. Another method may get the result we wish for, namely, a definite and final decision on that matter, and what is proposed is that that Part of the Offences Against the State Act which is intended to have what I might call a more permanent character, which was objected to by the judge, should, with whatever slight modifications may be regarded as necessary, be re-enacted. We are presuming that it is likely that the President, having before him the decision of the judge of the High Court that this particular Part is contrary to the Constitution, will cause the new Bill to be referred, according to the Constitution, to the Supreme Court for an authoritative decision. When that decision has been got, we shall know whether or not the view expressed by the High Court judge, which would imply, I think, that we would not have powers, under the Constitution, of internment, is right or not.
I said—perhaps it was a rather unfortunate phrase, but it expressed exactly what my thought was—when I was being urged to take the other course, namely, to amend the Constitution, that in view of what appeared to me to be the plain language of the Constitution, it was only if I had the conviction that the judges were going to be perverse, that I would amend the Constitution rather than assume that the Emergency Powers Bill cannot be invalidated by the Constitution; in other words, it would be a confession on my part of an inner feeling that the judges were going to act contrary to common sense and to the plain language of the Constitution, if I had such a doubt of getting a judgment in our favour as would make me decide to amend the Constitution.
When the Constitution was passing through the Dáil, I adverted to this particular difficulty that courts which are administering ordinary law have been held by many constitutional writers to be very imperfect courts for dealing with constitutional matters. Their whole training of a narrow legalistic type makes them look for an interpretation in a Constitution which it is quite impossible to have. Constitutions last over a long period and we refrained in drawing up the Constitution from getting the Parliamentary Draftsman to draft it. We asked him to look over, and he agreed with us that it was better that it should be put in the every-day simple language of the ordinary man, instead of in definite legal phraseology. On the same basis, I think, if you want to make a will, people tell you not to go to the lawyer, or the half lawyer, but to write it down simply on a piece of paper and keep away as far as you can from legal expressions which have special connotations and are interpreted in a definite way. This was intended to be a simple, straightforward, common-sense document and our hope was that, as it would need to be interpreted from time to time in accordance with developments—if it were to last without change and if circumstances were to change, the document might be, so to speak, frozen in its existing words— there would be a living body which would be able to take account of the changing circumstances and interpret the Constitution in accordance with those changing circumstances.
That was the view taken by the Supreme Court of the United States and if there have been so few amendments of the Constitution of the United States, it has been due to two reasons, the first being that it was extremely difficult to make any changes and they were, therefore, in this position that either the courts had to interpret that fundamental document in accordance with its spirit, its general intention, or the whole thing would be smashed in a very short time. The second reason was that the Supreme Court of the United States took the attitude that the Legislature was to be presumed to be acting honestly and within the Constitution, and that an Act was to be declared unconstitutional, only if it was quite definite and clear that it was so; that is, the presumption was to be always in favour of the Legislature.
This whole difficulty was so much present to my mind that I think you will find in the Dáil Debates on the Constitution that I spoke of the devices used in other countries with regard to written Constitutions by which a special Constitutional Court is set up, not being the highest court in the land in ordinary legal matters, but a court composed of some judges and other people experienced in public affairs— for example, the Council of State, as we have it here, or something of that sort—and that body is the body to interpret the Constitution, the reason again being the difficulty I have been speaking about of taking an instrument of that kind and interpreting it in regard to legislation from time to time. I still have the hope, and it was with this hope that the Supreme Court in the Constitution was intended to be the final authoritative body, that the Supreme Court in dealing with these things will deal with them in a way which will make it possible to have the Constitution a workable instrument.
I can now pass away from that particular matter, namely, the reason for proceeding in this way. I have spoken not only of this particular Bill, the Emergency Powers Bill, but also of the Offences Against the State (Amendment) Bill because it was in connection with the Offences Against the State Act that we had the difficulty. We are trying to get immediate powers and the process of reference to the Supreme Court will take some time. The Supreme Court will have to consider the Bill and they are given in the Constitution something like 60 days in which to consider it, if they wish to take so much time, but we want immediate powers. We had the second question: How are we going to get immediate powers? When the war broke out, we realised that although we were not actually going to be belligerents, yet we were going to have circumstances here which would approximate to those of a war condition, and that for the preservation of the State, for the welfare of our people, during this time, we might require extraordinary measures. To enable us to deal with that, we, first of all, had to make clear that the term "time of war" in the Constitution would refer to a time such as the present in which, although we were not belligerent, circumstances were such that we were suffering effects and were in conditions which were practically those of a war situation.
We therefore defined by the amendment the expression "time of war", as it is in the Article, to cover a time like the present, under certain conditions, when there were resolutions of both Houses and so on. Having done that, we brought in the Emergency Powers Bill, which gave us powers of a certain kind—powers to make orders covering numbers of things that might be necessary for the welfare of the community during this particular time. That Bill gave us power of internment. It was worded in such a way that it would cover natural-born citizens — Irish citizens—as well as those who might be naturalised or aliens.
When it was going through the Dáil, it was pointed out to us that we already had the powers which would enable us to deal with Irish citizens, namely, in the Act passed in June—the Offences Against the State Act—and, because we had the power there, it was suggested there was no need whatever to take it in the other Act and, really, that the Emergency Powers Act, what I might call the war measure, was not designed exactly for that particular purpose and there was no need of having, so to speak, two strings to our bow. Because we believed that was the situation, we consented to modify, in accordance with the suggestion of the Opposition, the Bill as it was introduced and exclude from its operations natural-born citizens.
Had that not been done, in our opinion, the moment the internees were released, or the first of them, under the writ of habeas corpus as applying to the other Act, we would immediately have had warrants to intern them under the other Act which, in our opinion, could not be regarded under any circumstances as unconstitutional because, in accordance with the war situation and the amendment holding that this was a time of war, we were in a situation in which the other Articles of the Constitution did not apply. That is the position we believe exists at the moment and I have found nobody—I have been trying to follow the arguments put forward by legal men—I heard none in the Dáil, and we have lawyers there, or in this House— to give me any reason as to why it could be held in view of the Article and the amendment, which excludes this type of legislation from the other provisions of the Constitution, that there was any chance that the Emergency Powers Bill could be held by any court to be unconstitutional.