Michael McDowell (Dublin South East, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

I am pleased to present the Prisons Bill 2006, which completed its passage through the Seanad on 5 December 2006. It deals with a range of issues relating to prisons and prisoners and its purpose is manifold. It provides for video conferencing of certain non-trial court hearings; the placing of the Office of the Inspector of Prisons on a statutory footing; planning provisions for major prison developments and the closure of Mountjoy Prison; issues which may be included in prison rules, including mandatory drug testing; a basis in primary legislation for revised disciplinary procedures applicable to prisoners, including appeals; the possibility of outsourcing prisoner escort services; a statutory basis for charging prisoners for certain optional services; and the exclusion of non-commercial work from the National Minimum Wage Act 2000.

This Bill replaces and supplements the Prisons Bill 2005, which was withdrawn from the Order Paper following the publication of this Bill. The much more limited aims of the 2005 Bill included outsourcing prisoner escort services, providing for the video conferencing of certain pre-trial court hearings and providing for the closure of Mountjoy Prison. As time progressed, it became increasingly clear that the other prison-related issues to which I referred needed to be addressed and that a prisons Bill would be the best place to do so. As the inclusion of such measures would have necessitated significant amendments to the 2005 Bill, I considered it easier and more straightforward for all parties to the process to republish the Bill. I thus withdrew the Prisons Bill 2005 and republished it with the additional necessary provisions, resulting in more comprehensive legislation.

As I stated on many occasions since becoming Minister for Justice, Equality and Law Reform in June 2002, I am committed to introducing measures to reform and modernise the prison system. Numerous significant changes to the system have been introduced or are in the process of being introduced. A comprehensive proposal for organisational change in the Prison Service was accepted in a second ballot of members of the Prison Officers Association in August 2005. The arrangements agreed in the revised proposal represent one of the most significant change programmes undertaken in the public service in recent years, opening the way for greater flexibility, efficiency and cost effectiveness in every operational area of the State's prisons. The new additional hours system replaced the existing overtime system and effectively caps the level of extra attendance costs in the Prison Service. Successful implementation of these measures is delivering savings to the Exchequer of up to €25 million per annum.

I also published a drugs policy and strategy for the Irish Prisons Service in May 2006. This strategy provides, for the first time, a co-ordinated, consistent national approach to eliminating the supply of drugs into prison as well as ensuring appropriate treatment is available to prisoners to help them conquer their addiction.

A major prisons building and refurbishment programme to improve facilities for prisoners, including the elimination of the practice of slopping out, the reduction of overcrowding and the use of the notorious padded cells and to facilitate a more cost-effective operation of the service, has been ongoing. The extensive site at Thornton, County Dublin, has been purchased for the provision of a new prison complex to replace the existing prisons on the Mountjoy campus and planning is under way for development of a new prison to replace Cork Prison. These are major undertakings involving replacement of approximately 40% of the entire prison estate.

The replacement prisons for Mountjoy Prison and Cork Prison will provide decent, hygienic conditions for prisoners in line with modern-day standards. The new facilities will allow for the provision of a full range of work, training, educational, psychological and medical services for inmates as well as predominantly single-cell accommodation with proper in-cell sanitation facilities and general conditions conducive to rehabilitation.

New additional prison accommodation is also in the process of being provided at Loughan House, Shelton Abbey, Castlerea, Wheatfield and Portlaoise. In addition, the programme of work to install safety observation cells and closed supervision cells was undertaken in 2005 and completed in 2006 following my commitment to abolish the use of the notorious old-style padded cells in our prisons. These measures all represent further steps along the road to improving and modernising our prison system but there is a lot more to be done.

Turning to the Bill, Part 1, encompassing sections 1 to 3, contains standard provisions, including the Short Title, commencement and expenses provisions and the definitions of key terms used in the Bill. Part 2, which covers sections 4 to 10, deals with prisoner escort services. When the 2005 Bill was published it appeared that proposals for organisational change within our prisons would be rejected by prison officers. In those circumstances, I would have had no choice but to contract out the prisoner escort service in the interests of providing a cost-effective service, hence the inclusion of such provisions in that Bill. Since then an organisational change programme has been agreed with the Prison Officers Association. One of the main elements in that agreement was the establishment of a co-ordinated prisoner escort system operated by officers within the Prison Service. The prison service escort corps was set up towards the end of 2005. It has a staffing complement of 143 and we currently have a fleet of 35 specialised cellular vehicles. While the main business of the service is providing prisoner escorts to the courts, it also covers inter-prison and hospital escorts.

I am pleased to tell the House that the level of coverage provided by the escort corps for court escorts currently stands at 94% of transactions involving the movement of prisoners. That means 94% of prisoner movements are done in this way rather than by gardaí etc., which was much more prevalent in the past. In staffing terms, the escort corps operates on average more than 33% more efficiently on court escorts than the previous overtime-based operating system. The House will agree that tremendous progress has been made in a short period from introducing this service from scratch in one year. As long as the service continues to operate efficiently and in cost-effective terms, there is no need, nor do I have the desire, to contract out the service. However, to ensure I or any successor of mine is never left in a situation where there would be glitches in the provision of this service, it is important there is legislative provision for the contracting out of a prison escort service and I make such provision here. It is my intention not to commence this part and I hope such glitches and circumstances never exist requiring it to be brought into force. However, it should be in place as a reserve position.

To summarise Part 2 briefly, section 4 provides definitions of terms used in this part. Section 5 provides that the Minister, with Government approval and the consent of the Minister for Finance, may enter into an agreement for the provision of escort services. While it has been suggested that the Oireachtas should approve such an agreement, the legal advice I have received is that a decision of this nature is a function of the Government and decisions on the provision of services generally have traditionally been made by Government. The section further provides for the termination of such an agreement if the contractor fails to comply with any of the provisions of an agreement and outlines the role of a prisoner escort service.

Section 6 provides for the certification of prisoner custody officers who will provide the prisoner escort service. Any person may apply to the Minister for a certificate that he or she is, in the Minister's view, a suitable person to perform the functions of a prisoner custody officer. Any application must include the relevant fee and any requested documentation and further information required by the Minister in order to make a decision. The section goes on to outline the criteria to be met before the Minister may issue a certificate and the conditions under which the person holds such a certificate, including that he or she must comply with any prison rules relating to the treatment of prisoners in custody. Provision is also made for an applicant to appeal the refusal of a certificate to the Circuit Court and for penalties if an applicant, knowingly or recklessly, provides false or misleading information in an application, or if a person forges, or alters a certificate issued under this section or has a forged or altered certificate in his or her possession.

Section 7 deals with the revocation of a certificate. The Minister may revoke a certificate if the conditions previously referred to are not met by the certificate-holder. Such revocation must be notified to the relevant parties in writing. Provision is made for a prisoner custody officer to appeal the revocation to the Circuit Court. There is also provision for penalties should a person whose certificate is revoked continue to work as a prisoner custody officer and for persons who continue in this role when directed not to do so pending a final decision on the revocation. The section also provides for a complaint mechanism concerning the conduct of a prisoner custody officer.

Section 8 outlines the functions of a prisoner custody officer. Any powers conferred on a prison officer under such an enactment shall also apply to a prisoner custody officer while he or she is escorting a prisoner. In particular, the prisoner custody officer shall have the power to search a prisoner and remove any prohibited articles found during such a search. The section goes on to provide that only a prisoner's outer clothing may be removed unless the prisoner custody officer has reasonable grounds for believing that a prohibited article has been concealed beneath the prisoner's clothing. A search cannot take place in public view and a prisoner custody officer may only search prisoners of his or her gender. The section goes on to list the duties of a prisoner custody officer, namely, to prevent a prisoner's escape, to prevent a prisoner committing an offence, to ensure a prisoner behaves in an orderly fashion and to comply with any court order relating to a prisoner. The prisoner custody officer must also give to the governor of a prison any court document relating to the prisoner's committal to prison, including any medication, prescriptions, or information about the prisoner's health of which the prisoner custody officer is aware.

Section 9 prohibits unauthorised disclosure of information relating to a prisoner by a prisoner custody officer and provides for penalties for so doing. Section 10 provides for the Minister to appoint a person to monitor the performance of a contractor under this part. This person shall submit an annual report to the Minister on the performance of the contractor and has the power to enter the contractor's offices at any reasonable time and inspect and take copies of any documents found in the course of an inspection.

Part 3, covering sections 11 to 16, relates to prison discipline. The provisions in this part are new to the 2006 Bill and include the establishment of an appeals mechanism against disciplinary sanctions imposed within a prison. Prison discipline has until now been governed by the prison rules but the view now taken is that as disciplinary measures have significant implications for prisoners, it is more appropriate to have such measures set out in primary legislation.

Section 11 defines terms as used in this part. Section 12 provides for an inquiry to be held by a prison governor if a prisoner is alleged to have committed a breach of discipline and provides that the procedures for such an inquiry may be set out in prison rules. The prisoner must be informed of the date and time of the inquiry and the procedure to be followed at an inquiry may be laid down in prison rules. The section goes on to provide that, following such an inquiry, the governor may impose a sanction and record the finding and the sanction, or record a finding that the allegation was not substantiated.

Section 13 lists the sanctions that may be imposed. Section 13(1)(d)(ii) was amended in the Seanad to include members of visiting committees in the list of persons who may visit a prisoner despite the imposition of a prohibition on visitors in general. I also brought forward an amendment in the other House to widen the previous reference to visits from a doctor to include visits for the purpose of giving medical advice or treatment on a broader scale. In light of concerns expressed in the other House as to whether the current terminology includes persons who give psychological treatment, I propose to amend the wording further on Committee Stage to provide that visits from a doctor or other health care personnel are not prohibited.

Section 13(1)(g) was also amended in the Seanad, as I believed the meaning was somewhat unclear. The section now makes clear that gratuities may be denied for a specified period but not forfeited. Section 13 also provides that a sanction may be suspended subject to conditions, in whole or in part, for a period not exceeding three months and, following this period, the sanction may take effect or be abated, or, if the relevant condition has been complied with, the sanction may be lifted. The section goes on to provide that the governor may restore any remission for good conduct forfeited by a prisoner if such restoration is justified by the prisoner's good behaviour. Sanctions which may not be imposed are also listed. They include, among other things, corporal punishment, collective punishment, sensory deprivation or deprivation of food, drink or sleep or any sanction that would constitute cruel, inhumane or degrading treatment. Subsection 13(8) has been added by means of an amendment in the Seanad, as it was rightly pointed out that the Bill had omitted to specify that the prisoner must be informed of his or her right to appeal a sanction.

Under section 14, a prisoner on whom a sanction is imposed may make a petition to the Minister on the finding or the sanction, and the Minister, following consultation with the governor, may affirm, alter, suspend or revoke the sanction imposed. Section 15 for the first time introduces an independent appeals mechanism of a quasi-judicial nature to review loss of remission for prisoners. It provides that a prisoner who has had remission of a portion of his or her sentence forfeited may appeal the finding or sanction, via the governor, to an appeal tribunal. The appeal tribunal may invite written submissions from the prisoner and governor and shall notify the prisoner of the date and time of the hearing. The prisoner may attend the hearing and may have legal advice or representation for the purposes of the hearing. The section further provides that the tribunal may uphold or quash the original finding and may affirm, vary or quash the original sanction applied. Decisions of an appeal tribunal shall be published in accordance with arrangements specified in the prison rules.

Section 16 goes on to lay down the powers of an appeal tribunal. An appeal tribunal shall consist of a member, who shall be a practising barrister or solicitor of at least seven years' standing, appointed by the Minister. The terms and conditions of the member's appointment, including remuneration, are determined by the Minister with the consent of the Minister for Finance. A member may resign at any time or be removed by the Minister for stated reasons. A tribunal may determine its own procedure subject to the terms of this Bill and directions given by the Minister in the interests of securing consistency of procedures in relation to appeals. A tribunal shall be independent in its functions.

Part 4 of the Bill, sections 17 to 29 inclusive, relates to planning procedures in connection with the construction of new prisons and the extension of existing prisons. These provisions are again new and did not feature in the 2005 Bill. Section 17 provides definitions and section 18 provides that this Part shall only apply if the Minister so directs. I am conscious that large prison developments can be a cause of great controversy. For that reason I do not wish, as a general rule where largescale prison developments are involved, to take advantage of the planning arrangements provided for in Part 9 of the Planning and Development Regulations of 2001, which permit the exemption of prisons and places of detention from the normal planning regime. On the other hand, the development of a major prison facility is a matter of national importance and not appropriate to a local or regional-orientated planning approval system in the conventional sense. There is a need for the issue to be addressed at national level and therefore in the interests of democracy I am providing the opportunity for both Houses of the Oireachtas to have an input into the process.

Section 19 deals with what is called an environmental impact assessment, or EIA. An EIA shall be prepared before a development is commenced and shall contain a description of the proposed development as well as any significant effects it might have on the environment, including natural resources, architectural, archaeological and cultural heritage and expected emissions. The assessment must also contain an outline of the main alternatives that were considered as well as the main reasons for choosing the development. It will estimate possible residues and emissions during and after construction and will also describe any measures used to reduce, avoid or offset significant adverse affects. The section also provides that a visual representation of the exterior of the completed development shall be prepared. The House will appreciate that detailed plans of every prison cell, giving the thickness of every wall, will not be published. That would be foolish.

See this speech in context