Lynn Ruane (Independent)

I thank the Leas-Chathaoirleach and welcome the Minister.

I know this Bill came to the Minister's attention within the past week with respect to having time with the legislation but I think it is extremely straightforward. It is a simple, short Bill. I will give it some context in terms of where it comes from and what it is trying to achieve. First, for anyone who is unaware of the parole process - I know most of those present are aware of it - it applies to a person or persons who are serving life sentences and have served 12 years or more of their sentence, which is the beginning of the process of them being released pursuant to a parole order.It is important to state that the parole process only ever begins at 12 years. I know the public, and victims especially, quite rightly get upset or disheartened at the prospect of someone who may have taken their loved one's life being out on parole after 12 years, but that only happens when the parole process is actually instigated. It will take a long time from that starting date before a person is actually released. There are several steps that need to be taken throughout that process.

Parole is not an entitlement for all life prisoners, with decisions regarding a person's eligibility to return to the community being made by the Parole Board upon application. With regard to the importance of the parole process, sometimes the fact it begins at 12 years is a disincentive for people to engage with the parole system. Often, people do not engage very well in the early days of a life sentence with regard to psychology, counselling, addiction supports or education. It is often at that 12-year starting point that people see there is something that needs to happen for them to completely change their life, situation and trajectory if they are going to be considered somebody who can be released at a certain point and date in the future.

The Parole Board was established by the order of the Minister for Justice in July 2021 in accordance with the Parole Act, so it is a relatively new board and procedures. The board is completely independent in its functions and has the power to engage with parole applicants and victims of crime in reaching a determination. When processing an application for parole, the board must follow the procedures as set out in section 14 of the 2019 Act, the most recent version of which was adopted in 2024. As part of the process, the board may request reports regarding applicants from a variety of sources, including but not limited to the Irish Prison Service, the Probation Service and An Garda Síochána. As I said at the start, this process can be a lengthy one and, going into the parole process, you are not looking immediately at release. You may be looking at other enhancements as part of your sentence, whether that be neutral venues or a job, such as an outdoor job on the grounds. There are different elements to what people look for in parole with respect to their parole recommendations, and it is not always necessarily at a certain point that the person would be released.

The information gathered by the board in its consideration of an application is generally shared with applicants and their legal representative but can be withheld in exceptional circumstances. It is through my work with several life sentence prisoners, and the work I do in prisons and around fair, just and transparent access to justice, that it became apparent to me that there was potentially a lack of oversight in that part with regard to those exceptional circumstances. I must state strongly that I am not saying that invoking exceptional circumstances, in certain cases, is not something that may be required. I understand historically as well why that exists. It existed historically with regard to political prisoners, terrorism or persons who were a threat to the State. An Garda Síochána may say that a person is still involved with criminal activity. It became somewhat apparent to me that there may be a lack of access to justice at that point.

With regard to exceptional circumstances, they are currently undefined in the Act, and that also causes an issue. If we look to An Garda Síochána for a report or insight when a person is at a certain point in his or her parole and An Garda Síochána says it has evidence that the person is involved in X, Y or Z or is a potential threat to the State, at that point it can share that information with the Parole Board and then it can decide under the guise of exceptional circumstances that the information cannot be shared with the individual or their legal representation.This may be true in some cases. Obviously, I do not know what information is there or not there. The problem with this is that it means there is absolutely zero oversight of what exact evidence the Garda may have on a particular person. Is it being used appropriately? Who actually makes that assessment? If somebody has evidence and is taking a case in Ireland - obviously not in relation to a life sentence prisoner but just in general - the DPP's office evaluates all the evidence available to it and then decides whether the case should be taken to court. That does not happen here. There is no extra layer of oversight in relation to exceptional circumstances. Also, we are not clear what "exceptional circumstances" actually are.

I thank Robert Somerville, who works in my office, for drafting this legislation. I also thank the legal experts who supported us to understand the process here in Ireland and assess how it compares with the process in Northern Ireland in the hope that we could create legislation that would bring us in line with other jurisdictions rather than create a new process.

According to section 14 of the 2019 Act, the applicant and their legal representative will receive "a copy of any document" or information "furnished to the Board ... where the Board is of the opinion that exceptional circumstances exist that warrant such a document or indication ... not being so given". This means that the representative or the parolee never actually gets to answer any sort of case to any sort of evidence. They are never questioned by the Garda, and they are never brought to court. They can never refute any allegation or give any documentation to say that it is not accurate or that it is not a good use of exceptional circumstances. They have nothing to argue against because it is kept from them. When the documentation and information are withheld, applicants and their legal representatives do not receive an explanation as to why. Additionally, they have no right of reply or recourse. While there are certain circumstances where this may be necessary, and I do not discount or disagree with that, we need to ensure the applicant has a right to due process and it is not negatively undermined. Additionally, there should be greater clarity about the nature of the exceptional circumstances that might give case to the board's decision to withhold in the first instance.

We have tabled an amending Bill. Therefore, we propose that special advocates are appointed to represent the interests of parole applicants in circumstances where information is to be withheld in the parole process. Special advocates would be independent of the parolee and his or her legal representation.

The Bill, additionally and importantly, inserts an amendment that provides a definition for "exceptional circumstances" to provide greater clarity to applicants, legal representatives, the Parole Board and the general public. I feel that An Garda Síochána should have an extra layer of oversight in terms of how exceptional circumstances are used and this Bill protects their decisions.

On the alternative, where this occurs the commissioner or chairman of the panel dealing with the parole application has the power to recommend that the advocate general - the Attorney General for these purposes here in Ireland - ensures that a special advocate be appointed to represent the interests of the prisoner in the parole process. The use of special advocates in the North is designed to ensure fairness in proceedings where sensitive information, often related to national security or public interest, can be disclosed to the parole applicant or his or her legal representative. The context for when this occurs is clearly provided in rule 9 of the Northern Ireland legislation and provides absolute clarity regarding the contexts which might give rise to information being withheld in the parole process. They are where disclosures would be likely to adversely affect the safety of an individual, result in the commission of an offence, facilitate an escape from lawful custody or the doing of any act prejudicial to the safekeeping of persons in custody, impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders, be contrary to the interests of national security, or otherwise cause substantial harm to the public interest. People can see where it is laid out under similar legislation in the North, under rule 9, that there are lots of safeguards for when to use exceptional circumstances. However, where a determination is made to withhold the information for any other reason, which I have outlined, a special advocate is appointed from a panel of qualified barristers. We must remember that members of An Garda Síochána are not barristers. Gardaí uphold the law but they do not legislate, do not argue the law in court and do not engage with the law in the same way as a barrister. Once appointed, the special advocate is granted access to the sensitive information to form an understanding of its content and implications. The advocate is precluded from communicating with the applicant or their legal representative throughout the process unless leave has been granted by the commissioner or chairman of the panel. Again, this legislation provides an extra layer of protection to make sure that the special advocate is completely independent of the parolee or their legal representative.

Having reviewed the sensitive information, the function of the special advocate is to make submissions, where he or she deems appropriate, to represent the applicant's interests to the commissioner and the Parole Board. In closed parole hearings the special advocate may additionally make oral submissions to the parole panel and cross-examine any witnesses called to attend such hearings. The parole commissioners, in reaching their determination regarding an application for parole, will consider both the open evidence that is shared with the applicant and the closed evidence, which is the information reviewed with the assistance of the special advocate.

This Bill closely mirrors the provisions of the Parole Commissioners' Rules 2009 in Northern Ireland and amends our Parole Act 2019. Section 1 is a standard Short Title, collective citation and commencement provisions. Section 2 sets out the interpretation. Section 3 amends section 2(1) of the Parole Act, providing definitions as to what constitutes exceptional circumstances. Section 4 amends section 14 of the 2019 Act to include provisions which set out the procedures to be followed where exceptional circumstances are deemed to exist. Section 5 amends the Act of 2019 through the insertion of a new section which sets out the functions of an appointed special advocate in the parole process.

As I said at the beginning, this Bill will definitely not be everyone's radar and it affects only a small minority of people in this country. Also, this Bill will probably never be something that many people will want to champion because it seeks to ensure there is an extra layer of access to justice for life sentence prisoners who often will not be able to raise these concerns or represent themselves in a particular way when they believe there is a barrier to them accessing justice or an unfair decision has been made against them, especially when that unfair decision means they do not know what the information is that is being used and has stopped them from progressing. The Bill ensures that these prisoners have access to justice but it also ensures that we acknowledge the exceptional circumstances, ensure an independent person is brought in to assess the information and that it is not shared with the parolee or their legal representatives. This Bill is good law, just and transparent and replicates successful parol procedures elsewhere.