Brian Lenihan Jnr (Dublin West, Fianna Fail)

On the wider question raised by Senator Terry, I would not like the House to be under the impression that the correct balance is not struck in this Bill or that the Department is not interested in the position of victims. The Department published the Victim's Charter in 2000. In dealing with legislation, we must judge it in the context of where it arises in the criminal justice system. This legislation is about a system of temporary release, which effectively is an abrogation of a period of a sentence for which an offender has been punished. The Oireachtas has given the Minister clear guidance under section 1(3) which provides that the Minister shall not give a direction under this section in respect of a person if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so do.

While I found some attraction in the wider amendment proposed by Senator Terry, it would have the effect, regardless of how one would formulate it, of elevating the representations of the victim which are always taken into account by the Minister, and have to be necessarily because this is a grave power. It is not a power any Minister would wish to have to exercise. It would have to be exercised with great care and caution and it would be a foolish Minister who did not listen to victims in this matter.

To write into the legislation the principle that the victim must be considered as a matter of legal obligation on the part of the Minister, could well lead to a challenge of the temporary release system because the basis of the system is that we are abrogating a sentence for humanitarian or other reasons connected with the rehabilitation of the offender. If we wrote into legislation that, as a matter of law, the Minister must consider the position of the victim, that reason of itself would be a reason to refuse temporary release. If the Minister developed a practice of consistently granting temporary release, irrespective of those objections, the exercise by the Minister of his powers or her powers under this legislation could become endangered.

I examined this question in a minute way. The reality is that any amendment would have to be made to subsection (2), in regard to which the Minister cannot give a direction in respect of any matter in that subsection if it would not be appropriate so to do for any one or more of the matters concerned. That creates a legal problem which is insuperable.