Brian Lenihan Jnr (Dublin West, Fianna Fail)

Let us assume the unlikely argument that a state in the Council of Europe exists that has the penalty of hard labour during detention. The amendment proposed by the Senator states that the High Court should have no element of discretion in deleting that condition from the sentence. However, the High Court has to have discretion because that is its character. We cannot tell the High Court what to do. The amendment seeks to remove the discretion of the High Court and it states that no provision that is less favourable should apply here. I can see why the Senator might view that as reasonable. The issue remains that some person must decide what aspects of the sentence are less favourable.

If the court is not empowered to determine this matter, it may mean that it becomes a function of the Minister. Any decision of the Minister in this area would be open to judicial review and matters relating to the imposition, as distinct from the administration, of sentences are in the power of the courts. It would seem preferable, on the analogy of our domestic arrangements, to leave those arrangements intact. For those reasons, I do not accept the amendment.