Michael McDowell (Dublin South East, Progressive Democrats)

Amendments Nos. 32 to 44, inclusive, deal with appeals relating to disciplinary sanctions. Amendment No. 32 proposes that a prison may, within seven days of a decision of an appeals tribunal upholding a sanction, appeal the decision to the Minister. I do not propose to accept this amendment because the appeals tribunal created under this legislation is independent in the exercise of its functions and it is intended the decision of a tribunal will be final. It would not be appropriate to appeal an appeal because that would have the potential to become a never ending cycle. Furthermore, it is not appropriate for the Minister to become involved once a tribunal has issued its decision. The amendment is based on an apprehension that Ireland is not fully compliant with the obligations set out in the European Court of Human Rights but I do not see how an appeal to the Minister would further the independence of a tribunal if it is overruled.

Amendments Nos. 33 and 42 to sections 15 and 16, respectively, lend precision to the provisions. The amendment to section 15 inserts "his or her", which clarifies the provision. The amendment to section 16 makes the wording more precise by replacing "one or more than one Appeal Tribunal" with "an Appeal Tribunal or more than one such Tribunal".

Amendment No. 34 in the name of Senator Tuffy provides for the governor to inform a prisoner of his or her right to appeal. On initial examination, I have sympathy for this amendment, which I believe is necessary. The prisoner should be informed of the option to appeal, and that has not been expressly stated in the Bill's text. I wish to consider the Senator's proposed amendment and consult the Parliamentary Counsel. I will return to the House on Report Stage. I am grateful to Senator Tuffy for bringing it to my attention.

Amendments Nos. 35 to 38, inclusive, in the name of Senator Cummins effectively provide for a prisoner to appeal directly to a tribunal and for him or her to notify the governor of an intention to appeal. The appeal would not be routed via the governor. I am not disposed to accept those amendments, as I am strongly of the view that notifications must be transmitted through the governor as a standard practice regarding all requests from prisoners. Under section 15(2) the governor is legally obliged in every case to refer such a matter to an appeals tribunal.

Amendments Nos. 39 and 40, also in the name of Senator Cummins, delete references to free legal aid and remove the provisions stating that regulations may be made granting free legal aid to prisoners appealing to the tribunal. I do not propose to accept the amendments. The Office of the Attorney General has advised me that access to free legal aid may be necessary in this context to comply with the European Convention on Human Rights as interpreted by the courts in a recent case. Since the appeal involves a possible loss of remission and as such could be regarded as equivalent to imposing an additional sentence, it would require the safeguards associated with some aspects of a criminal trial, including legal representation. I have sympathy with Senator Cummins's view that we do not want lawyers dominating the process, but there may be cases where, owing to the significance of the potential loss of remission, legal aid is required. I should not mislead the House by saying that there would be no problem with blanket removal.

Amendment No. 41 in the name of Senator Tuffy provides that the application of a sanction shall not be delayed by reason of appeal. I cannot accept the amendment, as it is unworkable. If, for example, a sanction of confinement to a cell for three days were imposed and immediately effected, and the prisoner appealed, by the time any appeal had taken place, the three days of confinement could well be over. The sanction would already have been imposed, and the appeal would be more or less nugatory. The amendment is flawed and I do not propose to accept it.

Amendment No. 43 in the name of Senator Cummins would have the effect of allowing persons other than barristers or solicitors of seven years' standing to act as members of appeals tribunals. I am not keen on that, since it is important that a member of an appeals tribunal have extensive legal experience. Moreover, as an appeals tribunal is a quasi-judicial authority, it is not appropriate that a person with no legal background should take on a judicial role.

Amendment No. 44 in the name of Senator Cummins has the effect of providing that an appeals tribunal must publish the reasoning behind its decisions. I will consider that proposal further and revert to the House on Report Stage.