Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I agree with the amendment that proposes postponing the passing of Second Stage of this Bill for a period of six months. I thank Senator Ruane and Senator Flynn for introducing this legislation. It raises important issues, as has been identified by both Senators. It is not something that is highlighted publicly as an issue which is causing ongoing mischief in society but that is not a reason to oppose legislation.

This is the third time I have encountered legislation in the Seanad and I have always found it a very useful place to come. I was here a number of weeks ago when Senator Harmon introduced a Bill seeking to outlaw sex for rent, as it was referred to. It was a very sensible Bill and I have now included it within the criminal justice (miscellaneous provisions) Bill that I published last week. I want Senators to know that when they put forward legislation and they go to the bother of drafting Private Members' Bills, I will give careful consideration to it. I did the same in respect of Senator Mary Fitzpatrick's Bill in respect of retail workers.

I fully understand that this Bill has come up on short notice. I make no criticism of Senator Ruane in respect of that. It just happened that the Bill came up on short notice but I am grateful to the Senator for engaging with me yesterday. The Bill is very well drafted. It raises a couple of interesting points in respect of the processes before the Parole Board, but the main reason for the amendment proposed is that I and the Department need more time to consider what is proposed here. I will also have to engage with the Parole Board. Obviously, that is the entity that will be directly affected by it in terms of the procedures. I will also have to engage with An Garda Síochána.

I will not express a final view in respect of the matter until I have done that but I want the Senators to know I will engage on the issue in good faith. I know the period of six months will also give Senator Ruane an opportunity to consider further amendments that might help which I will outline here in due course.

First, I commend the work of the Parole Board. I derive great satisfaction and a bit of pride from the existence of the Parole Board since, back in 2020, I introduced the Private Members' Bill, the Parole Bill, that resulted in the enactment of the Parole Act. I am very well disposed towards Senators, or indeed Deputies, who introduce Private Members' Bills if they are sensible and contain sensible proposals that are beneficial. I have no sense of being proprietary. It is appropriate that we should try to progress them.

It is important to note the Parole Board operates independently of the Minister for Justice. It brings diverse and important skills and experience together and it has unquestionably improved the process of the granting of parole that operates in Ireland today. Prior to the enactment of the Parole Act, many of the decisions - all of the decisions, in fact - of the Parole Board were decisions that were made by the Minister for Justice of the day on the recommendation of the then non-statutory Parole Board. It is very appropriate we have a statutory system in place in order that people can see how it operates and that it is set out in legislation how this important process should take place.

One of the reasons we can have this debate today is there is now far clearer public understanding of the parole process, what information is considered within it and the respective roles of the parties that come before the parole decision-making process. As Senator Ruane has indicated, the purpose of her Bill is to amend a provision so that we can bring in special advocates who will determine whether information that is provided to the Parole Board should also be provided to the parole applicant.I am not aware of any circumstances where this has arisen as an issue. There may have been some cases that were initiated but they have not resulted in decisions or reserved decisions of the High Court. Nonetheless, as was stated earlier, it is not always the case we have to wait for somebody to go to court to improve legislation. The fact it is not a pressing issue in the public domain should not be a reason the Bill should not be considered.

The Senator's Bill would provide that where information is not disclosed, the Minister would be informed and would be required to consider whether to appoint a special advocate who would review the information and potentially make submissions to the board. In practice, there may be quite legitimate reasons to withhold and protect confidential information within the parole process. Such information may arise particularly in relation to organised crime cases and where there are national security implications.

For example, where a person has applied for parole to the Parole Board, one of the factors the Parole Board has to consider is whether the individual will be a threat if granted parole or will continue to be involved in criminal activity. If An Garda Síochána was aware or had information leading it to believe the individual was still involved in criminal activity and, consequently, advocate against the granting of parole, that is a factor the Parole Board would have to take into account. I do not think anyone disputes that is a factor that should be taken into account. What Senator Ruane suggests, however, is that, as well as taking it into account, there should be an opportunity provided to have the veracity and quality of that information assessed. She recognises that there could not just be a situation where the information is passed over to the parole applicant who then gets to see it, but she is putting in place a filter system through the position of special advocates, who would determine whether the information should be disclosed to the parole applicant.

Let us take a straightforward example. In an organised crime context, it may arise that an applicant has ongoing links to an organised crime group and there may be an investigation into the group that is relevant to the parole decision. The integrity of that investigation must be protected but the information is clearly of relevance to the parole decision. Information may have been received from covert investigations or from intelligence sources where disclosure could potentially endanger law enforcement personnel or other persons or hinder investigative work into other offences.

It is, of course, true to say that special advocates in civil and criminal proceedings are used in a number of other jurisdictions. Senator Ruane referred to Northern Ireland, where it is on the Statute Book. They are also used in other parts of the United Kingdom, New Zealand and Canada. What is characteristic in those jurisdictions is a detailed body of law and procedures in respect of the operation of the special advocate system. In that respect, there is clearly work to be done beyond the scope of the current Bill. I will now outline some of the areas where I think there are difficulties with the Bill, but they are difficulties that Senator Ruane and, indeed, the Department could work on to improve it.

As it stands, the Bill is silent on various important issues: first, the criteria by which the Minister would determine whether to appoint a special advocate; second, how such advocates might be selected and what their qualifications would be; third, the basis for their clearance to view particular information; fourth, the terms of their service and how would they operate; fifth, what technical support they might receive; sixth, their powers and rights in respect of the parole process; and finally, the consequences of any breach of duties of confidentiality.

A particular issue arises with defining exceptional circumstances in the Bill. I do not think the intention of Senator Ruane is to broaden significantly the use of section 14(1)(b) to withhold information, but it would appear the criteria proposed are in fact quite broad in terms of disclosure being refused on general public interest grounds and might well have that unintended effect. More generally, I note that the importance of disclosed information and how that information is received, tested and weighed goes well beyond the parole process. These issues arise in relation to immigration and national security, Special Criminal Court proceedings and potentially in any criminal or civil proceedings. To take a recent example, Senators will be aware that the Criminal Justice (Miscellaneous Provisions) Act 2023 put existing common law practice on witness anonymity on a statutory footing. Where appropriate, a court may order that the identity of a witness is not disclosed and material intending to identify the witness may be removed or redacted. Similar considerations arise with this Bill, so while the parole context we are discussing is very important, it cannot be fully separated from the other situations where such closed material arises. A coherent and consistent approach would be required from the State. At this stage, I am concerned that a clear rationale has not been identified. At the very least, these issues need to be considered in a broader context with a view to a more developed legislative policy and operational infrastructure. I do not say that to Senator Ruane in a negative way. This has been a very useful contribution and Bill. The Bill is an important first step.

These are not theoretical matters. I am conscious that there are practical examples of where this issue will arise in respect of people who are applying for parole. These issues are at the heart of public confidence in the criminal justice system. The Government amendment to the motion provides some space for further analysis. I would like to have further analysis in respect of it. I received correspondence from the Irish Penal Reform Trust, which is supporting the Senator's Bill. Obviously, I will give that very careful consideration as well. The main reason we would benefit from an adjournment for a period of six months - Second Stage will be passed in six months - is that I will have an opportunity to engage with the Parole Board. I will get to hear from it about the extent to which it relies on this closed information. From what has been said by Senator Ruane, there have obviously been some situations where it has relied on closed information. I also want to find out from the board what it thinks the effect will be of allowing for special advocates. The parole process has become more prescribed by legislation. That needed to happen, but I do not want to turn it into a very complicated and highly legalised area. It already provides for the presence of lawyers in terms of representation not just by the parole applicant but indeed by the families of victims. I want to ensure we do not set up a whole new body of legal complexity by introducing special advocates. However, I would have thought that if we went down the route of enacting legislation to provide for special advocates, the role and the amount of times they would be required would be very limited. I would have thought that most parole applications do not rely upon what is being referred to as closed information.

I thank Senators Ruane and Flynn for introducing the Bill. As I said, Government will not be opposing it. We are proposing an amendment that would adjourn the passing of Second Stage in the Seanad for a period of six months. During that period we will all have an opportunity to look at it in more detail. I would appreciate it if Senator Ruane, and her fine drafter Mr. Robert Somerville, could take on board some of the suggestions and see how they might come forward with proposed amendments on Committee Stage in this House.

I thank the Leas-Chathaoirleach. I will listen to the other contributions.