Alan Shatter (Dublin South, Fine Gael)

First, I welcome the fact that this Bill is before the House. Clearly, the 2006 Act contained serious defects and has not worked in the manner anticipated, particularly with regard to those who have been sent to the Central Mental Hospital in Dublin and whose situation is such that there is view that they are persons appropriate to be released but that they should be subject to conditions, both in the interests of their own safety and welfare and that of the general public. It has proved impossible to use these provisions because the original Act was defective in so far as the Minister of State correctly states it did not contain within it any provisions as to how one addresses a situation where someone was conditionally released and then did not comply with the conditions.

It is also welcome - I understand it is a requirement of our obligation as pursuant to the European Convention on Human Rights - that there is provision included in the Bill to allow the courts, prior to having someone formally assessed as to his or her capacity to stand trial, to hear psychiatric evidence initially as to the person's condition.

There is a number of things I want to say about this Bill which gives us some insight into a number of matters but before I do, I want to say something of some importance. This is a criminal law Bill and while it deals with a discrete area, it is of relevance to the area of criminal law generally. As we are having a debate on a law reforming measure in the area of criminal law which envisages the Garda having to take action in circumstances if difficulties arose after someone was released, I want to say, as Fine Gael justice spokesperson - I believe it is appropriate that I do so - that the Garda Síochána should be congratulated on the active and important role it has played - as it always does - in recent weeks in addressing the worrying re-emergence on our island of a small group of paramilitaries who wish to disrupt life, injure and possibly kill individuals and who have no respect for the wish of the Irish people, North and South, that we live in peace and that the arrangements agreed pursuant to the Good Friday Agreement be respected. The Garda is to be congratulated on arms finds that have taken place in recent days and on its active investigations and the results of those, on which I do not wish to comment for fear such comment could prejudice any prosecutions that might take place.

It is appropriate in this House, as the democratic Parliament of this State, that all of us clearly and unitedly stand behind the Garda in the work it is doing, in co-operation with the PSNI, to tackle the scourge of paramilitarism, which seeks to undermine the huge progress we have made in the past ten years on this island. It needs to be said that no matter who is in government, paramilitary activity will not be tolerated; the Garda will be fully supported in the work it is doing and there will be the fullest co-operation on the part of any Irish Government that is in place, including a government of which my party is part, with the Northern Ireland authorities in bringing violence to an end. It was something we thought had ended. It is a considerable concern and regret that a small group of people are again trying to engage in such activities.

The Bill is an important illustration of something that Ministers who have been in government for 13 and a half years constantly deny and fail to take account of. This Parliament is particularly unusual in the manner in which it has operated since the 2007 election in my experience of being a Member of the Dáil up to 2002. Three and a half years have passed since this Dáil was elected. During my period as a Member of this House from 1981 to 2002, prior to my involuntary exit from it as a consequence of that general election, it was my experience that when Opposition Deputies brought forward Private Members' Bills to address areas of law that Government did not have the time to give priority to or lacked the in-house expertise to address, those Bills were treated with some respect and seriousness.

In my case, a number of such Bills were supported by the Government and adopted and passed in this House, while in the case of others, of which the Government might have been sceptical and voted down, it often adopted and brought before the House a similar Bill within 12 to 18 months. There has not been a single Private Members' Bill brought before this House since this Dáil was elected that the Government has supported to the extent of allowing it ultimately to pass into law. It has used its majority in this House to stamp out every constructive legislative proposal that has been brought forward and, on occasions, where stamping it out on Second Stage would generate particularly bad publicity, it has not voted it down but sent it into limbo by allowing it pass Second Stage and disappear down a black hole whereby Fianna Fáil controlled committees do not allow it to be processed.

The reason I have raised this point in the context of this Bill, and this point is directly relevant to it, is that the constant excuse that has been made for voting down legislation produced from this side of the House during the past three years is that the font of all wisdom in the drafting of legislation lies within Departments and, more particularly, within the specialised and elevated Office of the Attorney General. Departments and the Attorney General's office are portrayed constantly as the only groups competent to bring legislation before the House. When Private Members' Bills are brought before the House in the justice or other areas, the Government will always hone in on some technical inadequacy in the Bill and make a meal out of it on the basis that the Bill is terribly flawed and could not possibly be allowed pass Second Stage. On occasions, unthinking journalists who do not understand the legislative process report these sorts of comments as if they were on tablets of stone handed down by Moses having climbed down the mountain. Often they forget, as do Ministers, that the legislation they produce on Second Stage is imperfect. It need not always be perfect because we are supposed to go through a legislative process - this is a legislative Assembly - and legislation is amended on Committee Stage or Report Stage by amendments tabled by Government or by amendments tabled by the Opposition that more often the Government rejects but then republishes on Report Stage.

That point is relevant to this Bill because this legislation is only before us because the 2006 Act was defective. It was an Act published by the Department of Justice, Equality and Law Reform, taken through this House by the then Minister for Justice, Equality and Law Reform, Deputy McDowell, who I recollect the media at the time thought was the font of all wisdom, and, presumably, drafted within the then Department of Justice, Equality and Law Reform. The truth is that the original Bill passed in 2006 has not worked in the manner anticipated because it has two substantial defects in it. It is time it was realised that this House should be allowed to legislate and Members on the side of the House, and backbenchers in the Government parties, should be respected as legislators and allowed to publish legislation which should have the possibility of being enacted without impacting on the pride of individual Ministers or their personal perspective of themselves as terribly important persons whose reputation might be damaged if they allowed anyone other than themselves to pass legislation in their area. The truth is that if they did so their reputation would be enhanced.

The original Bill is defective. I welcome the fact that some of the defects are being addressed in this Bill but I want to raise certain issues, on one of which at least I know the Minister of State, Deputy Moloney, would agree with me. I do not mean any disrespect to him but he has limited influence because he is a Minister of State and, as such, is not a member of the Cabinet. As someone who, as a constituency Deputy and lawyer, has worked over the years with individuals and dealt with their personal circumstances - individuals who are clearly under substantial mental strain and suffer from mental illness or mental disorder - there is an importance in all reforming legislation introduced in this House that we use appropriate terminology. I do not believe it was appropriate in 2006 to pass legislation with the word "Insanity" in the Title. It is not appropriate that in 2010 we publish legislation entitled the "Criminal Law (Insanity) Bill. This Bill is about individuals who suffer mental illness or mental disorder. We have other legislation called the Mental Health Act. Why are we reverting to a form of language in the criminal law area that has been outdated for two decades but was apparently regarded as acceptable in 2006? We still have legislation on our Statute Book which refers to people as "lunatics". We have rules of the superior courts which refer to people as "lunatics"; people are made wards of courts because "they are lunatics". That is 18th century wording. As we moved through the 20th century the word "lunatic" was ultimately replaced by the word "insanity" and now that we have greater insight into these areas, we refer to people's mental health. Although the Bill amends an Act which uses the word "insanity", there is no reason the Title should not read, "Criminal Law (Mental Health) Bill". I genuinely do not understand the reason this is not the case as it could still amend the previous Act of 2006. I do not understand why we have to use this sort of pejorative language for something that is fully recognised as a sickness.

The only hospital to which the legislation is relevant is the Central Mental Hospital in Dundrum, which is in my constituency. There are a number of individuals within that facility who, having been there for many years, would be well able to exist outside and in the community but who cannot be simply unconditionally released. They will require substantial supports and a degree of supervision when they are released and for some of them, there also will be a period of time when they will have to adapt to living within the community.

It is a great shame that the original Act was defective and did not work. I welcome the fact that this legislation is now before the House and we can progress it. I am conscious that, in making decisions to release individuals from the Central Mental Hospital, very careful judgment is required both in the interests of the individuals concerned and the greater interests of the community. There will be occasions when conditions are not complied with and individuals will be required to be returned to the Central Mental Hospital. The hospital is currently the only facility available, although I am aware that in the context of the Bill, as drafted, there is a possibility in certain circumstances that some other facility may be utilised under its provisions.

I draw to the Minister of State's attention my concern about section 13C. The Bill envisages that if conditions are not complied with, the Garda Síochána may become involved and return someone to the hospital. As the Minister of State noted, section 13C "is a technical provision to ensure that staff of private agencies hired to effect the return of patients to the designated centre can be considered authorised persons for the purpose of section 13B." In this case, the designated centre could only be the Central Mental Hospital in Dundrum. The section allows the designated centre to authorise persons other than members of the Garda Síochána to return someone to the Central Mental Hospital or to other designated centres in the event that other such centres emerge. There must be a possibility under this legislation that there will be privately funded designated centres which are paid a sum of money to care for someone sent them as a consequence of the outcome of a court case.

In so far as I can see, there is nothing stated in the Bill about the qualifications or training of the persons who may be recruited under section 13C. Gardaí would be given a certain amount of training on how to deal with mentally ill people. If this sort of function is to be farmed out to some other body, what training will these individuals receive? At present, we have a problem in some areas of this city surrounding the manner in which so-called private security firms are conducting themselves. Will we find a couple of fellows, who were formerly engaged in criminal gangs or paramilitary activities and work as bouncers outside some nightclub or pub, being recruited to collect from a local community some mentally ill individual who has been conditionally released and is failing to comply with conditions? In what tragedy might that result? I ask the Minister of State to clarify how he sees this provision working. What controls will be in place? What training will such individuals require? In what circumstances will it be deemed appropriate that an outside agency that employs individuals should be utilised to return a mentally ill individual to the Central Mental Hospital in Dundrum instead of the Garda Síochána? This is a serious issue which needs to be clarified.

Will the Minister of State clarify what is the position of the Central Mental Hospital and what is its future? We all know it is a very old building which is no longer truly fit for purpose. When the former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, spent unnecessary millions of taxpayers' money to buy a piece of farmland on which Thornton Hall was to be constructed, the original plan was that the site of the Central Mental Hospital would be closed, the Government would make an enormous sum of money from, I presume, selling it off for housing or apartment development and the hospital would be inappropriately located in Thornton Hall, right beside the new prison. That was a bad idea from day one and has since been dropped. We are now back at the starting point with an outdated, inappropriate facility still being utilised without - the Minister of State will correct me if I am wrong - any definitive decision having been made as to where we go from here. While I am aware that one or two ideas have been floated, I am unaware of any definitive decision that has been made. What is the position? Clearly, there will not be a pot of gold at the end of the rainbow for selling the site in question in the short or medium term based on the collapse of property values and the housing market. For how long can we go on without replacing the current facility with something more appropriate?

While I am conscious that there is not significant public interest in what happens to people in the Central Mental Hospital in Dundrum, Ireland has certain international obligations in this area. We must recognise mental illness and its impact on individuals. They have some degree of human rights and are entitled to a certain amount of dignity. Irrespective of how good is the work of the staff in the hospital, the current facility will never be adequate to meet the real needs or what is required to be in place in the 21st century to address the type of individual problems from which those who have been sent to the Central Mental Hospital suffer.

I do not propose to speak at length on the Bill. While I welcome the legislation in principle, there are one or two issues which need to be tidied up on Committee Stage. I hope there is some insight into the fallibility of the Office of the Attorney General and Department of Justice and Law Reform. If Members on this side propose amendments of a technical or substantive nature I hope they will be treated seriously and taken on board and that they will not be simply rejected because they emanate from the Opposition.

I ask the Minister of State to address another issue. The Law Reform Commission, in a report published in 2006, recommended the replacement of the wardship system with a comprehensive structure with regard to individuals who are currently designated as "lunatics" and whose property is managed for them. We should properly update our laws in these areas. I ask the Minister of State to comment on this matter.

The Minister of State indicated that a review is taking place of the original 2006 Act. Parts of the legislation have not worked properly, although I accept that other aspects of it are working. Perhaps the Minister of State will give us some insight into what issues are being considered in the review and how they might impact on the current workings of the criminal law.

Two issues arise in this area. The first issue of major importance is to ensure that those who are mentally unwell and who commit crimes, be they serious or minor, are not simply left at large to continue disrupting local communities. Some of those who are in the Central Mental Hospital at present have been involved in events that have resulted in people's deaths, some in horrendous circumstances. Consequently, there is a need to ensure that the public is properly protected. However, there also is a need to ensure that those who are mentally ill are dealt with in a manner that reflects the value system that we should hold in the 21st century, in that they should be neither kept in facilities that were more appropriate 200 years ago nor neglected when they are conditionally released into the community. That is the final point.

As Members are aware, the HSE has huge difficulties in the manner in which it functions and in its capacity to deal with those who suffer mental illness. The Minister of State might outline to Members the exact nature of the support and backup facilities that will be available to those who are conditionally released under the Bill to ensure they comply with those conditions both in their own personal interest and in the interest of protecting the wider community. It is of the greatest importance that if people are to be conditionally released from the Central Mental Hospital, the wider community has no reason to fear any consequences detrimental to it as a result of such release and has confidence in whatever State backup and supervisory services are to operate so as to ensure the community remains protected and that an individual who is conditionally released does not pose any real threat to anyone else within the wider community.

See this speech in context