Derek McDowell (Labour)

I am pleased to be before the House today to present the Prisons Bill 2006. This Bill deals with a number of issues relating to prisons and prisoners and its purpose is manifold. The Bill provides primarily for the following matters: 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; the issues to be included in prison rules which include mandatory drug testing; a basis in primary legislation for revised disciplinary procedures, 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.

In May of last year I published the Prisons Bill 2005 which completed Second Stage in this House. The aims of the Prisons Bill 2005 were much more limited. They were to outsource prisoner escort services, to provide for the video conferencing of certain pre-trial court hearings, and to provide for the closure of Mountjoy Prison. However, as time progressed it became increasingly obvious that the other prison-related issues I have mentioned needed to be addressed and that a prisons Bill would be the best place to do so. However, as the inclusion of such measures would have necessitated significant amendments being brought forward on Committee Stage, I felt it might be more proper in terms of parliamentary procedure and more straightforward for all parties to the process if the Bill were to be republished. I have thus withdrawn the Prisons Bill 2005 and republished it with the additional necessary provisions, resulting in a much more comprehensive piece of legislation.

As I have stated on many occasions previously since becoming Minister for Justice, Equality and Law Reform in June 2002, I have been committed to introducing measures to reform and modernise the prison system. A number of significant changes to the prison system have been introduced or are in the process of being introduced. A comprehensive proposal for organisational change in the Irish 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. They open 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 Prison Service in May of this year. 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 that appropriate treatment is available to prisoners to enable 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 padded cells and to facilitate a more cost-effective operation of the Prison Service has been ongoing. An 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 well 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.

New additional prison accommodation is also 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 old-style padded cells in our prisons. These measures all represent further steps along the road of improving and modernising our prison system.

Part 1 of the Bill, encompassing sections 1 to 3, contains standard provisions, including the Short Title, commencement, an expenses provision and the definitions of key terms used throughout the Bill. Part 2, which covers sections 4 to 10, deals with prisoner escort services. As Senators may recall, 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 prisoner escort service in the interests of providing a cost effective service. Since then, an organisational change programme has been agreed with the Prison Officers' Association. One of the elements in that agreement was the establishment of a co-ordinated prisoner escort system operated by prison officers within the Prison Service. The escort corps was set up towards the end of 2005. There is 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 escorts to and from the courts, it also covers inter-prison and hospital escorts. I am glad to tell the House that the level of coverage provided by the PSEC for court escorts now stands at 94%. In staffing terms, the escort corps operates, on average, more than 33% more efficiently on court escorts than the previous overtime based operating system.

I believe the House will agree that great progress has been made in building this service from scratch in just under a 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 am not left in a difficult position should there be future glitches in the provision of this service, it is important there is legislative provision for the possibility of contracting out of a prison escort service and I am making such provision here. It is my intention not to commence this Part unless I have to do so and I hope such provisions will never have to be brought into force but it is, nonetheless, essential that they exist.

To summarise Part 2, section 4 provides definitions of terms used in this Part. Section 5 provides that the Minister may, with Government approval and the consent of the Minister for Finance, enter into an agreement for the provision of prisoner escort services. 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 service. Any person may apply 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. 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. There is also provision for refusal of a certificate and penalties for people who forge or possess a forged certificate.

Section 7 goes on to deal with the revocation of a certificate and section 8 outlines the functions of a prisoner custody officer. Section 9 prohibits unauthorised disclosure of information relating to a prisoner by a prisoner custody officer and section 10 provides for the Minister to appoint a person to monitor the performance of a contractor under this Part.

Part 3, which covers sections 11 to 16, inclusive, 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. Section 11 defines terms and 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. The prisoner must be informed of the date and time of the inquiry and the procedure to be followed at an inquiry is to 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 and provides that a sanction may be suspended subject to conditions, in whole or in part, for a period not exceeding three months. Following that period, the sanction may then 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 behaviour forfeited by a prisoner if such restoration is justified by subsequent good behaviour. Sanctions which may not be imposed are also listed and they include corporal punishment, collective punishment, sensory deprivation or deprivation of food, drink or sleep or any sanction that would constitute cruel, inhumane or degrading treatment. 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 provides, for the first time, for 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 tribunal may take 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 have legal advice or representation for its purposes. The section further provides that the tribunal may uphold or quash the original finding. 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 a 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 the 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, which covers sections 17 to 29, inclusive, deals with planning procedures in regard to the construction of new prisons and the extension of existing prisons. These provisions are new and did not feature in the 2005 Bill. Section 17 provides definitions of terms and section 18 provides that this Part shall apply only if the Minister so directs. I am conscious that large prison developments can be a cause of controversy. For that reason I do not wish, as a general rule where large scale prison developments are involved, to take advantage of the planning arrangements provided for in Part 9 of the Planning and Development Regulations 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 local or regional orientated planning systems. 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". An EIA shall be prepared before a development is commenced but shall contain a description of the proposed development as well as any significant effects it might have on the environment, including natural resources, architectural and archaeological 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 but obviously plans of every cell, etc., cannot be published.

Section 20 provides that on receipt of the environmental impact assessment and the visual representation of the development, the Minister shall give notice of the proposed development to the planning authorities in the relevant area. Members of the public shall be informed of the development by means of the placing of a notice on the site and in a national and local newspaper. Furthermore, the Minister for the Environment, Heritage and Local Government shall be informed as shall the Minister for Communications, Marine and Natural Resources, if the development is adjacent to the foreshore, and the relevant authority in another country, if the development is likely to have significant adverse effects on that country's environment. Section 21 lays out what must be contained in the notices to which I have referred and section 22 provides that the EIA and the visual representation must be made available to any interested party in written form or electronically.

Under section 23, the Minister shall appoint a rapporteur to receive submissions relating to the proposed development and the rapporteur is required to prepare a report which summarises the submissions received and identifies the main issues raised. This report shall be published. Section 24 deals with a situation where the Minister, on foot of the rapporteur's report, decides to alter the proposed development. In this case the Minister shall cause an amended description of the development to be prepared as well as a supplementary EIA and an amended visual representation of the exterior, if material alterations are made to the exterior. The persons and bodies specified in section 20 shall be notified of any proposed alteration. Again, submissions may be made in relation to the revised proposal and submitted to the rapporteur who shall prepare a supplementary report on the basis of the submissions received and this report shall be also published.

Section 25 provides that the Minister, having considered the EIA, the rapporteur's report and any supplementary EIA and report, may make further alterations to the development and may proceed or decide not to do so. Under section 26, if the Minister decides to proceed with the development, he shall move a draft resolution approving the development in both Houses of the Oireachtas. This resolution must contain a description of the development, a statement that an EIA — and supplementary EIA, where applicable — has been prepared, the measures taken to invite observations from the public, the main measures taken to avoid, reduce or offset any significant adverse effects and a drawing or visual representation of the exterior. The resolution must also specify any conditions with which the developer must comply.

Before moving the resolution, documents must be laid before the Houses of the Oireachtas, including a statement of the location, purpose and size of the proposed development, its land use requirements during construction and operation and any estimated residues or emissions. The EIA, and any supplementary EIA, a visual representation of the exterior and the rapporteur's report and supplementary report, if applicable, must also be laid before the Houses. If the draft resolution is approved and confirmed by an Act of the Oireachtas, the Minister may then proceed with the development. In this respect it will resemble the restrictive practices code that existed before the Competition Authority and by which there was an enabling Act, an examiners' inquiry and an examiners' report. If the Minister wanted the report to have the force of law, he or she had to confirm the report and move a confirmatory, one-line Act before the Oireachtas to give the development legislative approval.

Section 27 provides that any questioning of an act done under this Part must be by way of an application to the High Court. Section 28 deals with exemptions relating to the development in terms of planning permission and requirements set out in other legislation. This section also provides that if a national monument is found on the site, no further work may be undertaken, except to preserve the monument, without direction from the Minister for the Environment, Heritage and Local Government in consultation with the director of the National Museum. Section 29 prohibits the disclosure of any information concerning design or construction which is likely to prejudice the security of a new or extended prison.

Part 5, encompassing sections 30 to 32, inclusive, providing for the establishment of an office of inspector of prisons on a statutory basis, is also new. Section 30 provides that the Minister may appoint an inspector of prisons, who shall hold office on terms determined by the Minister in consultation with the Minister for Finance. The inspector may at any time resign from office or be removed by the Minister for stated reasons. An appointment shall be for a term of not longer than five years and the inspector is independent in the performance of his or her functions.

Section 31 lays out the duties of the inspector of prisons. He or she shall carry out regular inspections of prisons, may enter any part of a prison at any time, obtain copies of any records kept there and report to the director general of the Prison Service or the Minister as appropriate on any issues of concern. The inspector may, and shall if requested by the Minister, investigate any matter relating to the management or operation of a prison and shall submit a report to the Minister on such an investigation, which shall be laid before the Houses of the Oireachtas. The section further provides that the Minister may omit matters from the report if disclosure would be prejudicial to the security of the prison or the State. The Minister may also omit matters from the report, after consultation with the Secretary General to the Government, if disclosure of such matters would be contrary to the public interest or would infringe the constitutional rights of any person. The section goes on to clarify that it is not the inspector's role to investigate complaints from individual prisoners and that any request from the inspector for information must be complied with by prison staff in so far as is reasonably practicable.

Section 32 provides for the inspector of prisons to submit an annual report to the Minister on any prison inspected in the year in question. The report shall deal with the general management of the prison, health and welfare of the prisoners, general conduct of staff, compliance with set standards, facilities available, security and discipline. Each report shall be laid before the Houses of the Oireachtas and shall be published.

Part 6 of the Bill contains a range of miscellaneous provisions. Section 33 deals with the hearing of applications to court by video link. Previous provisions featured in section 11 of the 2005 Bill. However, following receipt of the final report of the committee on videoconferencing chaired by Ms Justice Susan Denham, the range of circumstances in which videoconferencing might best be used without the accused being physically present in the court has been significantly expanded from the limit of pre-trial hearings provided for in the 2005 Bill to the range of non-trial hearings specified in section 33(11).

This section applies to the applications to court where the accused or person convicted is in prison, where the application is being made by either the Director of Public Prosecutions or a prisoner and where the prisoner is legally represented or has obtained or been given the opportunity to obtain legal advice. In these circumstances, the application may be heard without the prisoner being physically present, that is, by video link, if the court is satisfied that it would not be unfair to the prisoner, if the interests of justice do not require the prisoner's presence at the hearing and if the video link facilities allow the prisoner to participate in the hearing, the court to see and hear the prisoner and the prisoner to consult privately with his or her legal representative during the hearing.

When the judge is making the decision whether the application to court may be heard by way of video link, he or she must have regard to the nature of the application, how complex the hearing is likely to be and the prisoner's age and mental and physical capacity. An application for the hearing to be heard by means of video link may be made either by or on behalf of the prisoner or the DPP, and if the application is refused, the court must state its reasons for that decision. A direction under this section may be revoked at any time, whether on application or not. Section 34 applies the provisions of section 33 to children in remand centres or children detention schools.

Section 35 deals with the making of prison rules by the Minister. It builds on the power to make such rules provided for in section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997. In addition to the range of issues provided for in the 1997 Act, provision is also made for testing prisoners for intoxicants, including alcohol and drugs, and for the publication of decisions of an appeal tribunal on the forfeiture of remission of a portion of a sentence.

The existing prison rules date back to 1947. I published comprehensive new draft prison rules in June 2005, which are on my Department's website. The intention in publishing draft prison rules was to give people an opportunity to submit observations on them. One issue that has been raised is that the rules relating to prison discipline in particular should have a strong grounding in primary legislation. As the House can see, I have taken that view on board. As soon as this Bill is enacted, it is my intention to sign the draft rules, with some amendments, into law.

Section 36 amends the National Minimum Wage Act 2000 to ensure that payment of the minimum wage is not applicable to prisoners undertaking non-commercial work within a prison, including cleaning, training or work experience and charity work. To date, payment of the minimum wage has not applied to prisoners performing these tasks, but for the sake of legal certainty it has been decided that a specific exemption should be included in legislation.

Section 37 deals with payment by prisoners for requested services and provides that provision may be made for payment for special goods and services, including telephone calls, private medical treatment and escorts outside the prisons for matters that are not generally available without charge to prisoners. Any charges levied may not, however, exceed the cost of the provision of the goods or services to the prison authorities.

Section 38 provides for absences from prison on certain grounds. Under this section, the Minister may order that a prisoner be taken to a specified person or place for a specified purpose and time and be returned to the prison thereafter. Such leave may be granted on compassionate grounds, to assess or facilitate a prisoner's re-integration into society or for the purpose of assistance in the investigation of an offence. If during that period the prisoner is not of good behaviour, causes a breach of the peace or attempts to escape, he or she shall be returned to prison immediately. Section 39 provides that a prisoner in the custody of a garda, a prison officer or a prisoner custody officer is thereby in lawful custody. Section 40 contains technical provisions and amends references to the Prisons Acts in various enactments to also include this Act. The definition of prison officer is also amended in certain legislation to ensure it encompasses prisoner custody officers.

Section 41 repeals certain provisions in other legislation, including a provision relating to visiting committees, as some functions of visiting committees will now be encompassed by the appeal tribunals. The repeal of section 1(2) of the Prisons Act 1933, previously provided for in section 8 of the 2005 Bill, has the effect of providing a statutory power to enable Mountjoy Prison to be closed. Section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997 is also being repealed. This section dealt with the making of prison rules, which is now being restated, with additions, in the current Bill. Section 42 is a standard regulation-making provision.

This Bill continues the programme of prison reform which I have commenced. We are changing how prisons are run, work practices in prisons, where prisons are located and, very importantly, we hope to change what is achieved by sending people to prison. Although I have stated before that imprisonment should be seen as a last option, it remains a necessary one. A prison which is not drug free is not rehabilitative and therefore fails in one of its primary objectives. That is why I make no apology for the drug-free policy we have enunciated and for giving it a firm foundation in primary legislation lest it be challenged or somebody say it was not contemplated by the Oireachtas that a prisoner should be obliged to participate on a mandatory basis in submitting samples and other measures to ensure that prisons are drug free.

There is no reason prisons and prison practices in Ireland should not be of the highest standard. We must move from what is, in some respects, a bad place to what I hope will be a better place. The public wants our prisons to be rehabilitative. Although people do not want prisons to be holiday camps, they do not want them to be places of which we are nationally ashamed, or which are counterproductive or fail to be rehabilitative. Prisons should be secure. I am committed to the provision of modern and humane conditions for prisoners in this country. I am committed to providing educational and rehabilitative facilities in our prisons to give people a chance to rebuild their lives while in prison by laying foundations for a useful role in society as a constructive citizen. The building of a new prison at the Thornton Hall site will be a major step in this regard.

I look forward to hearing the comments of Senators on this Bill and to a more detailed debate on Committee Stage. I apologise that I withdrew the first Bill and returned with this Bill. I had been subjected to criticism on other occasions for introducing radically different amendments on Committee Stage. I decided this Bill deserved a Second Stage debate rather than introducing new material by unexpected amendments on Committee Stage.