Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am reluctant to enter into a debate on prison infrastructure and policy but, lest that reluctance be interpreted as indifference, I have lived and worked throughout my career in the town of Portlaoise, which is perhaps best known for its prison complex, the largest urban prison complex in Great Britain and Ireland. I am very familiar with the workings of prison and with prison policy and we might have an opportunity on another occasion to engage on the varying issues, though I do not see a great divergence of opinion with regard to prison policy or operations.

We all agree that prison should be a penalty and a place of last resort for the courts and, by and large, that is the case as far as the administration of justice is concerned. I was amused at the suggestion by a former Minister, Senator McDowell, that Thornton Hall be used for football and sport. That would put into some insignificance the contractual and monetary relationship between the FAI and the chief executive or the current executive vice president, but that is also for another day.

I welcome the debate on the specific amendments. I acknowledge support from all sides of the House and we have worked together in the past few months to facilitate a debate. I thank spokespersons of other parties for their active engagement which has led to the amendments before us being put, and I acknowledge the support of the parties in the Seanad. I also acknowledge the work of spokespersons at party level in the Dáil, and I particularly acknowledge the work of the Attorney General to ensure we are in a position to debate amendments that need to acknowledge the separation of powers between the Legislature and the Judiciary. We have achieved this essential balance.

I note and acknowledge that Senator Ó Donnghaile has withdrawn his amendments in favour of mine. There was a considerable overlap between the group of amendments which we are discussing but there remain a number of points of divergence and I note the Senator did not make reference to his proposal to withdraw amendments Nos. 41, 43 and 44, which relate to matters such as ministerial proposals and the monitoring and further assessment of legislative proposals. In my view, the amendments are more appropriate to a somewhat different type of structure than is possible within the framework of this particular Bill.

The key point is that there is general consistency in the overall objective to ensure there is public confidence in the practice of sentencing in general, though I am not sure how far we can go in terms of the particular in this regard. As policy makers, we have to ensure confidence in the sentencing regime is evident. We are debating a larger number of amendments, which is somewhat inevitable having regard to the changes required in the Bill as we move towards a provision for sentencing guidelines and the information committee.On the amendments in my name, the first set of amendments, which are Nos. 2, 6, 14, 17, 20, 23 and 26, all appear to be very straightforward. They concern a change in name for what is currently referred to as a sentencing information committee. The effect of the amendments is that the committee will be renamed the sentencing guidelines and information committee. This reflects its new remit and the new functions bestowed upon it.

Amendments Nos. 4, 19, 21, 24, 27, 29, 30 to 32, inclusive, and 77 are connected with the new functions the committee will now have. A key amendment among those is amendment No. 21, following the model in section 30, which relates to the judicial conduct committee. Provision is now being made for the committee to prepare draft sentencing guidelines and to submit those guidelines for review by the board of the judicial council. Any amendments to guidelines adopted by the council will be dealt with in the same manner.

Another key amendment in this group is amendment No. 77. It sets out the broad parameters for the sentencing guidelines which are to be adopted by the council. This amendment also specifies various factors which must be taken into account by both the committee and the board in preparing or reviewing drafts of such guidelines. Amendments Nos. 4 and 32 are linked to No. 77 insofar as they define the terms "sentence" and "sentencing guidelines." Amendment No. 27 is a consultation provision, which will allow the committee to draw upon external expertise in the preparation of draft sentencing guidelines. Amendment No. 31 mandates the committee to prepare material for inclusion in the annual report of the council in relation to its work. Apart from the first report of the council, which may cover a period longer than a calendar year, the relevant period will usually relate to activities during the preceding year, which is normal, as Senators will be aware.

Amendments Nos. 8, 10 and 11 relate to the role of the committee on the board of the council in relation to the draft sentencing guidelines. To ensure consistency with other provisions in the Bill, these amendments mirror the arrangements envisaged for the judicial conduct committee insofar as the proposed guidelines for judicial conduct and ethics are concerned. In essence, the board will be tasked with reviewing the guidelines and introducing modifications if deemed appropriate. The council will be tasked with the adoption and publication of the guidelines. Adoption must take place not later than 12 months after the draft guidelines have first been submitted by the sentencing guidelines and information committee.

Amendments Nos. 3 and 33 to 37, inclusive, are all concerned with issues around membership of the committee and its procedures. Amendment No. 33 provides that the committee is to consist of 13 members, being eight judges and five lay members, appointed by the Government following a recommendation from the Public Appointments Service, PAS, on foot of a selection process. The role of PAS is dealt with in amendment No. 34. The eligibility criteria for being appointed as a lay member are set out in section 31 of the Bill, which deals with lay members of the conduct committee. In this case, however, a person is not excluded from appointment by virtue of being a practising barrister, solicitor or civil servant. These restrictions, which are appropriate in the case of the judicial conduct committee, are not appropriate in this instance. Amendment No. 35 specifies that the standard membership term for the committee shall be four years, which shall be renewable once. The filling of casual vacancies is dealt with by amendment No. 36. Matters such as the procedure in relation to meetings, the first of which is to be held not later than three months after the date of the first meeting of the council and the quorum, set at five, are addressed under amendment No. 37.

The final amendment with which I need to deal is amendment No. 78. Senators will agree that it is one of the most critical. This is the amendment which specifies that a court shall, in imposing a sentencing, have regard to sentencing guidelines relevant to the proceedings before it unless the court is satisfied that to do so would be contrary to the interests of justice. This amendment has been carefully crafted following extensive engagement with the Office of the Attorney General. I confirm to this House that the clear advice received was that non-binding sentencing guidelines of the kind proposed are constitutionally permissible. However, the imposition of guidelines of a binding or statutory nature on courts in criminal matters would violate the separation of powers, the requirements of Articles 37 and 38 of the Constitution, and would interfere with the scope of judicial discretion, which would also be contrary to the Constitution. I was anxious to explore the scope which existed for a more robust approach to sentencing guidelines. I take the view that confidence in the criminal justice system would be greatly enhanced if the public feels there is genuine consistency in the imposition of sentences in criminal cases.

I have listened to what Senators have said during this debate. I am inclined to strongly agree with Senator Bacik on the point she made about mandatory sentences, and I suspect that it is a view that a majority in this House holds. In recent years it must be acknowledged that the guidelines, as developed by the Judiciary, are increasingly used as a technique to structure judicial sentencing discretion. However, it is often not very clear if the public is aware of these developments. The requirement to produce formal guidelines builds upon evolving good practice and will, I hope, allow the public a greater insight into and appreciation for the workings of the criminal justice system. It will provide people with the assurance that the system is working in an appropriate, efficient and effective way.

I ask Senators to agree to the amendments. Reference has been made to a perceived delay in bringing this legislation back to the House. I acknowledge that time has elapsed, but that time has been put to good use. I return to the introduction made by Senator Ó Donnghaile, and acknowledge the work done in that regard. I ask Senators to accept that I have pushed the boundaries of sentencing guidelines as far as I believe is feasible within the parameters of the Constitution, and I acknowledge the input and work of Senators across the board in that regard. I acknowledge the withdrawal of Senator Ó Donnghaile's amendments. I should not make comparisons with any other legislation passing through this House in parallel, but I very much welcome the fact that already, in the course of the early stages of the debate on these amendments, that at least three Senators are preparing for Report Stage by reserving the rights to put down amendments and talking about what might happen at later stages. I very much welcome that, and hope that the short time between now and Report Stage will be used by all of us to discover the other issues that might be addressed. I acknowledge what Senator Ruane has said, and would be happy to look at the issue she raised. I am more than willing to consider any proposals that are constitutionally sound and are workable, and which do not have any unintended consequences or impinge upon the fundamental independence of the Judiciary in any way in the carrying out of its duties.I acknowledge a fundamental thread that was referred to by Senator McDowell when he said that each and every case that goes before the courts is judged and should always be judged on its own particular merits. Cases are in many respects unique.

I welcome this debate but hope that we could proceed with the amendments as far as the sentencing guidelines are concerned, having regard to what I have acknowledged to be a consensus on this issue. I thank Senators for their input.