Seanad debates

Tuesday, 5 December 2006

3:00 pm

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 1:

In page 6, line 16, after "force" to insert "at a material time".

We tabled this amendment because the definition of "prison rules" is somewhat flawed in that it applies only to rules in force. Thus, if new rules were made repealing old rules the old rules would no longer be in force and would not be prison rules for the purpose of any ongoing disciplinary proceedings for the appeal tribunal. I would like to hear the Minister's comments on that.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I second the amendment.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I took advice on this matter and was told the insertion of the words "at a material time" are not usual and that it is not practice to insert them. The Senator will be aware that, under the Interpretation Act, where something is repealed it does not have the effect of ending any proceedings taken under it unless a contrary intention appears. I am disinclined to accept the amendment unless the Senator persuades me otherwise.

Rory Kiely (Fianna Fail)
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Is the amendment being pressed?

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I cannot make any further arguments about it. I withdraw the amendment. If my colleagues want to retable it in the Dáil, they will do so.

Amendment, by leave, withdrawn.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 2:

In page 7, line 2, to delete "Government" and substitute "Oireachtas".

The effect of the amendment would be to ensure that no contract for privatisation of the prison services would be entered into without the approval of the Oireachtas. There should be some non-governmental scrutiny of such an important process.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment. Will the Minister indicate if the sniffer dog service in the prison system will be privatised? I understand there are five or six horses in the city but there is only one dog in our prison services. Is it the intention of the Minister to privatise that aspect of the business?

Photo of Jim WalshJim Walsh (Fianna Fail)
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I cannot see any sense in this amendment. It would be cumbersome and unworkable if requests to move prisoners had to come before the Houses of the Oireachtas in cases where prisoner escort services were required.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I do not intend to avail of the powers provided under this section as long as the prison service, through its own internal escort service, provides a reasonably economic means of transporting prisoners to and from other places. If a successor of mine were in a position where they had to do that due to an incapacity on the part of the prison service to provide that service, the question of entering into a contract would arise. It would not be reasonable to get the prior agreement of the Oireachtas because if, for whatever reason, the service was unavailable, there would be a requirement to come back to the Oireachtas. For instance, if a service was in existence and the company went bust, to say nothing could happen until the Oireachtas met might be very inconvenient and the Senators might be disinclined to be summoned back from their summer holidays to study a new contract or whatever. I do not wish to be flippant but it is for the Government of the day to approve contracts. I assure this House and the public, however, that as far as I am concerned this is very much a second best option. It is only in the Bill to ensure that in respect of the agreement I have with the public servants in the prison system, they will arrange matters to ensure an economical service within the system to the State will be upheld.

It is my intent to increase the number of sniffer dogs in the prison service because it is important that they should be available frequently on a random basis. We cannot have a situation where there is only one dog in the country and wherever that dog is located, everybody can be relatively sure no other dog will perform similar services. Sniffer dogs are hugely beneficial adjuncts to security services in a range of situations and it is my intention to ensure they are within the service and that they are looked after by officers of the service. Obviously they have to be trained by outside experts. The training of them is not a matter for the service but in the long term I do not want them to have to have handlers from outside the service. In a reasonable prison situation, if dogs are brought into cells to sniff out concealed drugs and the like, that is work prison officers should be doing. It should not require the retention of independent contractors to achieve that type of searching facility. As for horses, there is nothing I can say.

Amendment, by leave, withdrawn.

Photo of Michael KittMichael Kitt (Fianna Fail)
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Amendment No. 3 is in the name of Senators Cummins and Brian Hayes. It is proposed to take amendments Nos. 3 to 9, inclusive, together. Is that agreed? Agreed.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 3:

In page 8, line 12, to delete "and".

The objective of this group of amendments is to put in place safeguards for private prison custody officers. We must be extremely cautious in framing this legislation as it outlines their statutory duties. We must also bear in mind that if they act outside the scope of the Constitution or engage in unlawful behaviour the State ultimately could be vicariously liable for their actions. We need to ensure the highest possible standards are retained if privatisation occurs and that respect is at the core for private prison officers, as it is for those employed directly by the Prison Service.

These amendments are also designed to create a responsibility on prisoner custody officers to protect a prisoner's safety and well-being. This forms an important element of the job in hand and should therefore be listed in the legislation as a core function. These amendments will put an onus on a prisoner custody officer to behave in an appropriate fashion and require him or her to act only within the bounds of the law. It may well be argued that these statements go without saying particularly with reference to amendment No. 10. However, there is an inherent value in stating them clearly and unambiguously in the relevant governing statute. The Minister mentioned that many of these aspects are covered in subsections (6) and (7) of section 6, but they do not go far enough.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I indicated on the last occasion that I would consider all these matters and I have considered subsections (6) and (7) of section 6. They adequately cover this matter. They provide that my successors are expressly prohibited from issuing a certificate unless the person is of good character, is capable of performing the functions of a custody officer, has undergone such course of training relating thereto, or has such experience as would, in the opinion of the Minister, enable him or her to perform the functions of a prisoner custody office in an efficient manner, and is otherwise a fit and proper person. It is a condition of the certificate that the person in the performance of his or her duties does not contravene an agreement under section 6 and complies with the provisions of this Act and any prison rules relating to the treatment of prisoners. Prison rules relating to the treatment of prisoners will always provide for their proper and respectful treatment by all people, whether they are public servants or outsiders. I want to emphasise yet again that it is not my intention to activate these provisions unless a set of circumstances, which I do not anticipate at this stage, comes into existence.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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The Minister has said, and I agree with him, that he does not intend to put in place these provisions but when this legislation is in place he may not be in office. There are not adequate safeguards in that respect in subsections (6) and (7) of section 6. They should be spelt out in more detail, as I outlined in some of these amendments.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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The level of protection envisaged by the Senator's amendments in primary statutory form is more demanding than that provided for in regard to prison officers. Prison officers are bound by prison rules and by the terms of their appointment. They are not set out in statutory form. I do not see why we should assume that somebody who will conduct transport functions should have a higher standard of behaviour imposed on him or her by primary law than is imposed on prison officers generally. Furthermore, the condition of the certificate is that any custody officer would have to comply with any prison rules relating to the treatment of prisoners. I cannot imagine what new or higher standards would be provided for that is not already provided for under prison rules.

Amendment, by leave, withdrawn.

Amendments Nos. 4 to 9, inclusive, not moved.

Photo of Michael KittMichael Kitt (Fianna Fail)
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Amendments Nos. 10 and 11 are related and they may be discussed together by agreement.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 10:

In page 10, between lines 33 and 34, to insert the following:

"(4) A prisoner custody officer shall, in respect of any search conducted under this section, make a report to the relevant governor—

(a) explaining the reasons for the search,

(b) in the case of a search under subsection (2), stating what grounds he or she had for believing that the prisoner had concealed a prohibited article beneath his or her clothing,

(c) detailing what, if any, prohibited articles were found, and

(d) providing any other details that the prisoner custody officer may deem to be relevant.

(5) A prisoner custody officer shall give any prohibited article found pursuant to a search under this section, to the relevant governor.".

Searches of a person involve the violation of important rights. I recognise that this is sometimes required for the safety of a prisoner or other prisoners. I also recognise that prisoners necessarily submit themselves to a regime that involves violations of privacy at many levels. However, in this context, the Bill once again falls short on safeguards that should be included to protect all prisoners from an unwarranted intrusion on their rights.

This amendment represents a simple reporting structure, whereby there would be a record of every search and an explanation for same. The effect of this amendment is to protect a prisoner's rights and to shield a prisoner custody officer from any unjustified accusations or unfounded complaints.

Amendment No. 11 is a technical amendment, which is dependent on the acceptance of amendment No. 10.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Has the finding of drugs as a result of a search of a prisoner been reported to the Garda? Has a case ever been taken against a prisoner on whom drugs have been found? It is a serious offence for a person, wherever he or she may be, to be found in possession of drugs. Has any case been taken against prisoners found to be in possesion of drugs, or are the Garda called to investigate in such circumstances?

4:00 pm

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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It is my understanding that the Garda is informed of attempts to smuggle drugs into prison whenever the prison staff can identify the person who has made the attempt. When drugs are thrown in over walls, sometimes that cannot be done. In those circumstances, it would be wasteful of Garda time to involve it in something which is manifestly futile.

I wish to advise the House that in the course of the recent legislation on criminal justice a new offence of smuggling, or attempting to smuggle, drugs into a prison has been created as an express new offence with special punishments attached to it. It is not as if the matter is simply let go. I am aware people have been arrested when they were found by prison officers to be in possession of drugs. My strong view is that present visiting conditions in most Irish prisons and present locations of prisons mean the Prison Service is facing an uphill battle in some institutions in keeping drugs out of prisons. That is why in certain circumstances it is necessary to have screened visits and in other cases it is necessary to move the prisons in their entirety to places where it not possible to throw things in over the wall.

When the mandatory drug testing, which is provided for in this legislation, comes into effect, there will be a firm basis for a drug free prison policy. We have spoken about that in this House previously and I am a strong believer in it. As I said on the last occasion, I cannot accept the proposition that we should take the view that because there are drugs in the world outside prison we should also expect to find them within prisons. That is to surrender completely on the function of prison, which is to rehabilitate. If we were to tolerate drugs, to have needle exchanges, to turn a blind eye to the presence of drugs in prison or to fail to have random testing of prisoners, we would make a mockery of the prison process, which is rehabilitative. Our rate of recidivism is high enough. We should use prison to initiate a programme to get every addict off drugs. If an addict has been supplied with drugs throughout his or her stay in prison, the likelihood is that he or she will leave prison not merely with a habit that needs to be fed, but also a debt. It will also mean other prisoners will have been corrupted. Innocent prisoners who have nothing to do with drugs are frequently bullied into smuggling them in for high risk prisoners. This is a very difficult situation and we cannot be naive about it. Innocent prisoners who do not have a drug habit are subjected to threats in prison to act as mules to bring drugs into the prison. Such people might be trustee prisoners outside on a prison works project in a community centre, and they come under pressure to smuggle drugs into prisons, which is a very serious matter.

I will not comment on more topical events that happened recently.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I have been supportive of the Minister on the issue of drugs. Last week on Second Stage, I spoke about two inmates in Wheatfield Prison who said the place was awash with drugs and that they were using their mobile telephones to get onto the airwaves. However, these matters are not relevant to the amendment that I have tabled, which I wish to press.

Amendment put.

The Dail Divided:

For the motion: 15 (James Bannon, Paddy Burke, Ulick Burke, Paul Coghlan, Maurice Cummins, Frank Feighan, Michael Finucane, Brian Hayes, David Norris, Kathleen O'Meara, Joe O'Toole, John Paul Phelan, Feargal Quinn, Shane Ross, Joanna Tuffy)

Against the motion: 23 (Cyprian Brady, Michael Brennan, Peter Callanan, Brendan Daly, Timmy Dooley, Geraldine Feeney, Brendan Kenneally, Tony Kett, Michael Kitt, Terry Leyden, Don Lydon, Martin Mansergh, John Minihan, Paschal Mooney, Pat Moylan, Labhrás Ó Murchú, Francis O'Brien, Mary O'Rourke, Ann Ormonde, Eamon Scanlon, Jim Walsh, Mary White, Diarmuid Wilson)

Tellers: Tá, Senators P. Burke and Cummins; Níl, Senators Minihan and Moylan.

Amendment declared lost.

Amendment No. 11 not moved.

Photo of Michael KittMichael Kitt (Fianna Fail)
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Amendment No. 12 is in the name of Senator Cummins. Amendments Nos. 12 to 15, inclusive, are related and may be discussed together, by agreement.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 12:

In page 12, line 21, to delete "may" and substitute "shall".

This amendment ensures that the procedures for an inquiry will be listed in the prison rules so the prisoners can have easy access to them.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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This amendment makes it mandatory to set procedures in the prison rules. I do not want to accept it because if every procedure is set out in the rules, it could mean inflexibility is introduced into the whole inquiry procedure, which would militate against trying to make the system work. The term "may" is used in the legislation and of course there will be the outline of a procedure. However, there could be unforeseen circumstances whereby a procedure has to be invented because of the nature of something or other. All types of contingencies may arise and if there is to be a statutory instrument to cover every unforeseen procedure, unfortunately the system will get bogged down in bureaucracy and legalities. I want a system that works, primarily, and given that there is an appeal mechanism involved in the whole procedure and the fact that legally trained people will operate it, it is not necessary to stipulate that every single contingency the disciplinary system might run into has to be laid down in a statutory instrument, such as a prison rule.

Amendment No. 13 is a Government amendment. It forms a response to points made by Senators Tuffy and Henry on Committee Stage to the effect that a doctor is included in the list of persons who might visit a prisoner, despite a prohibition on visitors as a sanction, but that as a doctor might not always be the most appropriate person, other types of health care workers might be required. I believe the amendment proposed is sensible, because anybody who is giving medical advice or treatment could include doctors, nurses, dentists, psychiatrists, psychologists and people of that type, who would be covered, and even those involved in the supply of basic procedures such as paramedical activities. I thank Senators Henry and Tuffy for their suggestion.

On amendment No. 15, I explained to the House on Committee Stage that the UN Committee against Torture does not actually visit prisons, unlike the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The UN Committee against Torture monitors the implementation of the UN Convention against Torture and other cruel, inhuman or degrading treatment or punishment. This monitoring function is carried out through the examination of reports submitted by states, parties and NGOs in terms of responses to them, on the rights under the convention, and how these are being implemented. Since this does not happen, there is no point for providing for it in law.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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In respect of the amendments I tabled, I welcome the Minister's effective acceptance in amendment No. 13 of the point I made in amendment No. 14, which I will withdraw. As for amendment No. 15, Labour Party Members tried to include the United Nations Committee against Torture because they believed this section gives a right to visit a prisoner to the Council of Europe Committee for the Prevention of Torture and believed it might be appropriate to cover the United Nations committee as well. Has the Minister a further opinion in this regard?

The Minister's new wording in amendment No. 13 no longer mentions psychologists although the other categories are still present, as well as the Minister's additions. Does he believe that psychologists are covered by the term "medical advice or treatment"? While he may do so, psychologists might not be covered by it. I ask the Minister to comment in this respect.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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On behalf of Senator Henry, who is unavoidably absent today, I thank the Minister for including in his amendment the points she raised. She was very anxious to raise this matter and that dentists or health workers should be included. However, given the Minister's comments in this regard, this amendment covers all such issues.

Amendment, by leave, withdrawn.

Government amendment No. 13:

In page 13, lines 4 and 5, to delete all words from and including "those" in line 4 down to and including "adviser" in line 5 and substitute the following:

"visits for the purpose of giving medical advice or treatment to the prisoner or those from his or her legal adviser, a chaplain or member of the visiting committee to the prison".

Amendment agreed to.

Amendment No. 14 not moved.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 15:

In page 13, line 8, after "Commission" to insert ", United Nations Committee against Torture".

Has the Minister anything to say in respect of this amendment?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I second the amendment.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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Is Senator Tuffy referring to the position regarding the UN?

Photo of Joanna TuffyJoanna Tuffy (Labour)
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Yes. Perhaps the Minister might also comment on my point about psychologists.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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On the question of psychologists, I will re-examine this matter before the Bill comes before the Dáil to ensure that psychological advice is included in "medical advice or treatment". If not, I will deal with it. The term would cover psychiatric advice. However in this context, a psychologist would normally be provided by the Prison Service and would not be covered by the sanction. Outside psychologists do not normally visit prisoners at their request. However, I will check and if there is reason to make further amendments, I will consider it.

Amendment, by leave, withdrawn.

Photo of Michael KittMichael Kitt (Fianna Fail)
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As amendments Nos. 16 and 17 and 19 to 23, inclusive, are related and amendment No. 18 is an alternative to amendment No. 17, amendments Nos. 16 to 23, inclusive, may be discussed together by agreement.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 16:

In page 13, to delete lines 18 to 20 and substitute the following:

"(e) forfeiture of such sum of money—

(i) in part, or

(ii) in total,

as may be specified by the governor, provided such forfeited sum does not exceed an amount of money that has been credited or is to be credited to the prisoner for work defined by section 5(2) of the National Minimum Wage Act 2000 (as amended by section 36 of this Act) from public funds;".

I have changed this amendment slightly from Committee Stage in order that the Minister might be better minded to accept it. Specifically, I have added the phrase "from public funds", at the end of the paragraph in response to the Minister's remarks on Committee Stage.

Amendment No. 18 clarifies that a governor may not confiscate money under section 13(1)(g). I am interested to hear the Minister's comments on amendment No. 17.

Further to the discussion on the issues raised regarding amendments Nos. 21 to 23, inclusive, on Committee Stage, I have reconstituted them in order that they clarify the procedure for the prisoner to lodge an appeal. Notwithstanding the Minister's defence of the section on Committee Stage, it is not properly drafted. I have taken into account his point about such matters necessarily being directed through the governor of a prison and the amendments reflect this. They place a clear legal duty on the governor.

These amendments also redefine who shall be allowed to be a member of the appeals tribunal. On Committee Stage, the Minister expressed concern that a person on a tribunal might not have the requisite knowledge of procedures and doctrines. However, to reject this amendment is to deny a significant corpus of knowledge and experience to the appeals process. Consequently, I have updated the amendment to allow the Minister to prescribe the necessary legal training for that person. I strongly believe, especially regarding amendment No. 23, that it should not be confined to the legal profession. Has the Minister decided how many people should be involved in an appeals tribunal? Will it be one, three or five? The number should be spelled out.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I propose to deal with amendments Nos. 16 to 23, inclusive, together as they relate to sanctions and appeals. Amendment No. 16 proposes that one of the sanctions that can be imposed by a prison governor on a prisoner for a breach of prison discipline is the forfeiture of some or all of the money credited or to be credited to the prisoner from public funds for work carried out in a prison, which is not subject to the National Minimum Wage Act. I have consulted the Parliamentary Counsel and am advised the current text of section 13(1)(e) already deals with this point. Hence, the amendment is unnecessary and I do not propose to accept it.

Amendment No. 18 tabled by Senator Cummins proposes the insertion of the phrase, "denial, but not confiscation,", of a gratuity earned in section 13(1)(g). On Committee Stage I indicated that I would reconsider the wording of this subsection and revert to the House. The wording I now propose in amendment No. 17 replaces the word "denial" in this provision with postponement of payment of the gratuity earned, which I hope makes the meaning more clear. The intention is that while the prisoner would not have the use of any gratuities for a period, such gratuities would not be forfeited. Senator Cummins's suggested use of the word "confiscation" in this regard is not the best solution as confiscation can only apply to something already in the prisoner's possession and not to moneys that would normally be earned during the 60 day period. The use of the word "postponement" removes any doubt as to the meaning of the provision.

Amendment No. 19 has been introduced following the tabling of an amendment on Committee Stage by Senator Tuffy to the effect that a governor would inform the prisoner of his or her right to any sanction imposed through an appeal tribunal. At the time, I indicated that I had sympathy for that amendment because the Bill did not expressly state that a prisoner would be informed of an option to appeal. Having consulted the Parliamentary Counsel on the issue, I have tabled this amendment to section 13 to the effect that when a sanction is imposed, the governor must explain, in ordinary language, that the prisoner may petition the Minister regarding a sanction, and if the sanction includes forfeiture of remission of a portion of a sentence, the prisoner may appeal the decision to an appeal tribunal. I am widening the provision in the manner suggested originally by the Labour Party Members. Moreover, the provision will be better placed in section 13, rather than in section 15 as originally proposed. I thank Senator Tuffy and the Labour Party Members for bringing this matter to my attention and for their proposed amendment. This makes amendment No. 20, which deals with the same issue, redundant.

I cannot deduce the need for amendment No. 21 tabled by Senators Cummins and Brian Hayes. The use of the term "request" in this regard, as suggested by the Senators, indicates the governor would have some form of discretion in the process of allowing an appeal or that he could allow or refuse the request. This is not the case. An indication of a forthcoming appeal must be forwarded to the tribunal as is provided for in section 15(2) and it is not in the governor's power to prevent this. Therefore, the amendment should not be accepted.

In respect of amendment No. 22, while I cannot accept the proposed amendment, the word "request" is not the most appropriate. I will reconsider the wording in conjunction with the Parliamentary Counsel with a view to reverting to an appropriate amendment in the Dáil.

Amendment No. 23 would have the effect of allowing persons other than barristers or solicitors of seven years' standing to act as appeal tribunals. I indicated on Committee Stage that I do not propose to accept this measure. It is important that a member of an appeal tribunal should have extensive legal experience. Moreover, as an appeal tribunal is a quasi-judicial authority, it is not appropriate that somebody with no legal background should take on a judicial role.

It was suggested in the House that persons such as former prison governors or prison chaplains would be eminently suitable for the role. Having considered that carefully, I am not in agreement. It would be unfair to ask a religious person to sit in judgment in this fashion and probably not a role that he or she would relish.

As for former prison governors, appeal tribunals must be independent in their functions and while a prison governor may have certain experience which I fully accept could be useful in the role, if I were to allow a former prison governor to consider lifting a sanction placed on a prisoner by a current prison governor, there would be many objections as to whether the procedure was truly independent.

As appeals tribunals are being established to ensure that we are in compliance with the European Convention on Human Rights, it is important that they should be perceived as being wholly independent and of a legal nature. Furthermore, if we were to stray outside the requirement for legal personnel, we would be looking at something close to the existing visiting committee structure and that might not be appropriate either.

The case law of the European Court of Human Rights and legal opinions obtained by the Office of the Attorney General point to the possibility that imposing loss of remission as a sanction might be regarded as the equivalent of imposing an additional sentence of imprisonment and therefore might require safeguards associated with due process, including the right to legal representation. For that reason, it would be more appropriate to have a person with not just legal training but legal experience, rather that have somebody who had no such training. I do not want a situation where a lay person is being bamboozled by lawyers and it is important that if somebody will act at the tribunal and if it is possible at all that lawyers will appear in that forum, it is better that the tribunal members should have some legal training.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Does the Minister suggest that barristers bamboozle members of the public? I still feel strongly about this matter. It should not be confined to barristers or solicitors of seven years' standing. I changed my stance and asked that if the Minister felt it appropriate, proper training or instruction would be given to people being appointed before an appeals tribunal would be set up. I have been reasonable in making this suggestion. I also asked the Minister about the numbers he envisages involved in such a tribunal. Perhaps he might reply on that matter.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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It all depends. Tribunals can have a number of members or just one member. For instance, at present the Refugee Appeals Tribunal has one member. Other appellate bodies have a number of persons in them.

The real point is that this is where a prisoner could be appealing, for instance, a forfeiture of a remission, which could be a quarter of the prisoner's sentence. If that were to happen, let us be under no illusion that it is not a minor but a significant matter. If it were to happen, I would like to have the confidence at least that whoever would make the decision would know the law, or at least could be presumed to know the law, and would be somebody who would have had experience of seeing the law administered and of participating in the administration of justice. That is why I am doing this. It is not to give jobs to my friends or anything like that. It is purely because I strongly believe that it involves something of such importance to a prisoner.

As Senator Cummins will appreciate, the term of imprisonment of a prisoner sentenced to ten years is reduced by a quarter if he or she behaves properly.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Automatically.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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If the prisoner were to behave in a manner that could potentially lead to the reinstatement of that two and a half years, it is important that the person who does the job of deciding whether that decision was fairly made can see around corners and can see that due process requires X and Y to happen in the conduct of the appeal.

This is not small beer. If it were some kind of argument about whether a prisoner was rude to a prison officer and was losing his or her entitlements to a visit for a day, one can well imagine that this would be small stuff which any decent, honourable and commonsense person could carry out. I agree with Senator Cummins that in those circumstances, it might be superfluous that only a barrister or a solicitor of experience could do it. However, let us not forget that this is a serious function and one is dealing with significant remission as well. If push came to shove and somebody faced an extra year in prison as a result of one of these decisions, the Senator may bet his bottom dollar on it being a situation in which any departure from the constitutional requirements, due process, natural justice or whatever would be challenged immediately, and it would be down to the High Court where an expensive judicial review would be unleashed on the State.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Who carries out the function at present?

Rory Kiely (Fianna Fail)
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The Senator has replied and cannot speak again.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I would not be introducing this if I thought that it were not advisable under the European Convention on Human Rights to provide for such an appellate system. It is for that reason I want to do it.

I ask Senator Cummins to consider the notion that I could stand up in public and state that a man or woman is about to lose a year's entitlement to liberty which has been determined by a prison governor, and that person now has a right of appeal to a former prison governor.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Whether they should have that automatic remission is another day's work.

Rory Kiely (Fianna Fail)
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The Senator has replied.

Amendment, by leave, withdrawn.

Government amendment No. 17:

In page 13, to delete line 23 and substitute the following:

"(g) postponement, for a specified period not exceeding 60 days, of payment of".

Amendment agreed to.

Amendment No. 18 not moved.

Government amendment No. 19:

In page 14, between lines 22 and 23, to insert the following:

"(8) On the imposition of a sanction under this section, the governor shall explain in ordinary language to the prisoner concerned the content of section 14(1) and, if the sanction consists of or includes forfeiture of remission of portion of his or her sentence, of section 15(1).".

Amendment agreed to.

Amendments No. 20 to 22, inclusive, not moved.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 23:

In page 15, to delete lines 36 to 38 and substitute the following:

"(3) The Minister may appoint a person who is—

(a) a practising barrister or solicitor of not less than 7 years' standing, or

(b) in the Minister's opinion, suitably qualified for the position through that person's—

(i) professional or academic experience,

(ii) substantial experience of the prison system, or

(iii) relevant international experience of penal systems,

to be a member of and constitute an Appeal Tribunal.

(4) In the case of a person appointed under subsection (3)(b) of this section, the Minister may prescribe such training or instruction as he or she deems appropriate before such a person may be a member of an constitute an Appeal Tribunal.".

Question put: "That the words proposed to be deleted stand."

The Dail Divided:

For the motion: 24 (Cyprian Brady, Michael Brennan, Peter Callanan, Brendan Daly, Timmy Dooley, Geraldine Feeney, Maurice Hayes, Brendan Kenneally, Tony Kett, Michael Kitt, Terry Leyden, Don Lydon, Martin Mansergh, John Minihan, Paschal Mooney, Pat Moylan, Labhrás Ó Murchú, Francis O'Brien, Mary O'Rourke, Ann Ormonde, Eamon Scanlon, Jim Walsh, Mary White, Diarmuid Wilson)

Against the motion: 14 (James Bannon, Paddy Burke, Paul Coghlan, Noel Coonan, Maurice Cummins, Frank Feighan, Michael Finucane, Brian Hayes, Derek McDowell, David Norris, John Paul Phelan, Feargal Quinn, Shane Ross, Joanna Tuffy)

Tellers: Tá, Senators Minihan and Moylan; Níl, Senators P. Burke and Cummins.

Question declared carried.

Amendment declared lost.

Bill recommitted in respect of amendments Nos. 24 to 26, inclusive.

Rory Kiely (Fianna Fail)
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Amendments Nos. 24 to 26, inclusive, are cognate and may be discussed together.

Government amendment No. 24.

In page 16, line 35, before "Prison" to insert "Director-General of the Irish".

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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Amendments Nos. 24 to 26, inclusive, are technical. The reference in the section, as drafted, is to the "Prison Service" as an organisation. This is a drafting oversight as the Prison Service is not an identifiable legal person who can issue directions. The amendments clarify that reference to the "Prison Service" is to the director general of the Irish Prison Service, to whom certain functions have and may be assigned by the Minister under law. The word "Irish" has been inserted because the full title of the organisation is the "Irish Prison Service" and it is normally referred to as such.

Amendment agreed to.

Government amendment No. 25.

In page 17, line 41, before "Prison" to insert "Director-General of the Irish".

Amendment agreed to.

Government amendment No. 26.

In page 17, line 45, before "Prison" to insert "Director-General of the Irish".

Amendment agreed to.

Bill reported with amendments.

Rory Kiely (Fianna Fail)
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Amendments Nos. 27 to 29, inclusive, are related and may be discussed together.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 27:

In page 18, between lines 4 and 5, to insert the following:

"(b) the Oireachtas,".

I am pleased the Minister has accepted the proposal I made on Committee Stage imposing on the Minister a statutory duty to inform the Oireachtas of his or her plans.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Amendment, by leave, withdrawn.

Government amendment No. 28.

In page 18, between lines 10 and 11, to insert the following:

"(2) The Minister shall cause a copy of the notice to be laid before each House of the Oireachtas.".

Amendment agreed to.

Government amendment No. 29.

In page 18, line 11, before "shall" to insert "of the development".

Amendment agreed to.

Rory Kiely (Fianna Fail)
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Amendments Nos. 30 and 31 and 33 to 35, inclusive, are related. Amendment No. 32 is an alternative to amendment No. 31 and amendment No. 36 is an alternative to amendment No. 35. Amendments Nos. 30 to 36, inclusive, will be taken together.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 30.

In page 24, lines 9 to 12, to delete all words from and including "the" where it secondly occurs in line 9 down to and including "appropriate." in line 12 and substitute the following:

"any one or more of the following persons, as the Inspector considers appropriate:

(i) the governor of the prison concerned;

(ii) the Director-General of the Prison Service; or

(iii) the Minister.".

The Minister indicated on Committee Stage that he would consider this amendment. As it is largely technical in nature and improves the readability of the Bill, I ask him to accept it. Notwithstanding his prolonged protestations on Committee Stage, I also ask the Minister to accept amendment No. 32 which proposes to increase and improve the accountability of the Government before the Houses of the Oireachtas.

On amendment No. 33, one of the criticisms laid against the Bill by experts on penal matters is that it does not provide for an independent prisons ombudsman whose function would be to investigate individual complaints made by prisoners. It is not necessary to fetter the Inspector of Prisons and Places of Detention in the manner prescribed in the Bill. Section 31(6) effectively prevents the inspector from investigating a complaint from an individual prisoner. While I do not suggest that responding to every complaint should be one of the inspector's functions, the purpose of the amendment is to ensure the inspector's hands are not tied in any way. The amendment provides that he or she could examine issues raised by a prisoner and hence fulfil one of the inspector's important functions. Amendment No. 34 creates a specific offence of failing to co-operate with the inspector and, as such, provides important support for his or her work.

Amendment No. 36 addresses an issue I have raised on several occasions during debates on the Bill. It is important to provide statutory timescales within which the Minister must lay documents before the Houses. Without such a provision, it is, as we have seen, too easy and convenient to ignore the Oireachtas and delay publication of a document indefinitely or publish such documents at a time which precludes a debate being held in the House. While I understand the reasons the Minister set out on Committee Stage in respect of the delay in publishing the most recent report of the Inspector of Prisons and Places of Detention, nevertheless the Bill should stipulate a timescale for the publication of reports.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment. Has increased overcrowding in prisons resulted in a rise in the number of complaints made by prisoners?

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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Overcrowding in prisons was much worse in the past than it is now. In so far as temporary release is an indication of overcrowding in prisons, in the mid-1990s between 15% and 20% of prisoners were on temporary release at any given time. This is no longer the case. I intend to continue to provide adequate prison space, not in the hope that it will be filled but in the confident expectation that no prisoner will be released in circumstances in which he or she should not be, that is, owing to the absence of prison space. That is the policy I am trying to pursue.

I indicated on Committee Stage that I would review amendment No. 30. Having re-examined it with the Parliamentary Counsel, I am advised that I should not accept it as it does not improve the text.

On amendments Nos. 31, 32, 35 and 36, amendments Nos. 32 and 36 provide that time limits be inserted into the provisions relating to the publication of reports. Having indicated on Committee Stage that I would re-examine this issue before Report Stage, I have tabled amendments Nos. 31 and 35 to address the matter.

As I indicated, unforeseen issues sometimes arise in respect of the publication of reports. I noted on Committee Stage, for example, that legal advice had to be sought in a particular instance. For this reason, it would be wrong to impose an inflexible and unachievable deadline for exceptional cases. However, I do not want it suggested that a Minister would purposely delay publication, which I have never done. The amendment I propose provides for a statutory duty that the reports concerned be published as soon as practicable. This provision has a legal meaning as it imposes a duty on the Minister to publish reports as soon as it is practicable to do so. In drink driving legislation, for instance, a sergeant must send off samples as soon as practicable, although one might require that this be done in 24 or 48 hours.

My amendment imposes a strong duty on the Minister to publish reports as soon as practicable and makes it improper for him or her to leave them unpublished for no good reason. I assure the Senator that the formula stated is a strong requirement that it is not open to any Minister in future to leave a report unpublished because it is politically inconvenient for the Minister or because the Department is administratively burdened by publishing the report. This will no longer be possible.

Precedents exist for that wording. For instance, in the Garda Síochána Act, the Minister must lay before the Oireachtas a three-year review from the Garda Commissioner for the efficiency, effectiveness and the management and deployment of resources of the Garda Síochána and this must be done as soon as is practicable.

Amendment No. 33 proposes an addition to section 31(6) to clarify that the Inspector of Prisons and Places of Detention can examine the circumstances surrounding a complaint by a Minister for the purpose of fulfilling his or her functions under the Act. I indicated on Committee Stage that I would review this proposal and revert to the House. I have received advice that there are good grounds not to do it but I am persuaded by the Senator's amendment that it is reasonable to say that if the inspector receives a particular complaint, in certain circumstances — although his function is not to investigate the complaint, he can do it along the lines suggested by the Senator's amendment — he shall have the right to examine the circumstances surrounding the complaint for the purposes of fulfilling his other functions. I think this is a reasonable statement of the law as I would like it to be and I will accept that amendment.

I do not propose to accept amendment No. 34. I do not wish to start creating offences because there would be all sorts of arguments whether the request was reasonable or not. I do not wish to criminalise this. The Inspector of Prisons and Places of Detention has the moral authority to ensure compliance with his or her directions and requests. I do not want a situation in which people are being arrested for failing to comply with his request as that is not usual in these circumstances. Inspectors are not usually given that kind of power to impose criminal liabilities on others. This would almost make him into a judge with a contempt jurisdiction and I am not happy to go that far. However, I believe the present inspector has, as a matter of course, received every co-operation from the Prison Service. If he arrives at any given time and asks to see any particular place, he will be shown it. I do not believe that he is being held out or obstructed in the carrying out of his duty. I prefer not to introduce an element of criminalisation into this issue.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I thank the Minister for accepting amendment No. 33. I accept the Minister's bona fides with respect to the other items, including a timescale of three months. I accept the Minister's argument and the legal standing of the phrase "as soon as practicable".

Amendment, by leave, withdrawn.

Government amendment No. 31:

In page 24, to delete lines 17 and 18 and substitute the following:

"(3) As soon as practicable after receiving the report, the Minister shall, subject to subsection (4), cause a copy of it to be laid before each House of the Oireachtas.".

Amendment agreed to.

Amendment No. 32 not moved.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 33:

In page 24, line 31, to delete "prisoner" and substitute the following:

"prisoner, but he shall have the right to examine the circumstances surrounding the complaint for the purpose of fulfilling his functions under this Act".

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Amendment agreed to.

Amendment No. 34 not moved.

Government amendment No. 35:

In page 25, to delete lines 11 and 12 and substitute the following:

"(3) As soon as practicable after receiving a report under this section, the Minister shall cause a copy of it to be laid before each House of the Oireachtas.".

Amendment agreed to.

Amendment No. 36 not moved.

Rory Kiely (Fianna Fail)
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Amendments Nos. 37, 38 and 42 are related and may be discussed together by agreement.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I move amendment No. 37:

In page 25, line 22, after "prison" to insert the following:

"or designated centre (within the terms of the Criminal Law (Insanity) Act 2003)".

In the case of amendments Nos. 37 and 38 I have pleasure in proposing them on behalf of Senator Henry. We are all agreed that the notion of giving evidence by video link is a positive development and that it should be used as widely as possible wherever the circumstances are appropriate. It would be ironic if some people who perhaps stood to benefit most from such an arrangement were to be excluded simply because the legislation did not apply to the place where they were detained. The Bill as it stands discriminates between two classes of detainees and I see no possible reason for discriminating in this way. I urge the Minister to accept amendments Nos. 37 and 38 as they discriminate on the basis of the place where somebody is detained rather than on the basis of the individual himself.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I second both amendments. They are very worthy amendments as tabled by Senator Henry and explained by Senator Quinn. These amendments would improve the Bill if accepted.

5:00 pm

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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On Committee Stage in this House Senator Henry proposed amendments to the effect that video-conferencing facilities in the Bill would also apply to persons in designated centres under the Criminal Law (Insanity) Act 2006. I indicated at the time that I had some considerable sympathy with the Senator's views and that I would examine the matter prior to Report Stage. I am now bringing forward amendment No. 42 to section 34 which provides that the video-conferencing provisions in section 33 can apply to a designated centre if the Minister for Health and Children so directs after consultation with the Minister for Justice, Equality and Law Reform.

While I hope my proposal meets the concerns of Senator Henry and Senator Quinn, it also meets some concerns which were expressed by Senator Norris, which I shared, about extending the concept of prisoner in section 33 to the category of persons detained in designated centres. In this regard, my proposal for an amendment to section 34, which extends the provisions of section 33 to persons in remand centres or to children's detention in schools, meets the point raised by Senator Henry while at the same time avoiding the difficulty in terminology regarding prisoners which would be implicit if that route were taken.

On a point of clarification, the amendment refers to the Act of 2003 instead of 2006. The Bill was introduced in 2003 but it took its time to get through the Houses, as is always the case.

I thank Senator Quinn for proposing the amendment and Senator Henry on the previous occasion. I have taken on board their concerns. I just want it to be the case that the Minister for Health and Children remains the lead Minister in respect of an initiative of this kind and that it is not suggested that the Minister for Justice, Equality and Law Reform has an interfering role in the extension of these facilities to centres of the kind in question. The Minister for Justice, Equality and Law Reform has an interest and therefore he would need to be consulted on the matter.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I appreciate the Minister's concern. I did not quite understand the need for the Minister for Health and Children to be involved but the Minister has explained it very well and I am happy to withdraw both amendments.

Amendment, by leave, withdrawn.

Amendment No. 38 not moved.

Rory Kiely (Fianna Fail)
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Amendments Nos. 39 and 40 are related and may be discussed together by agreement.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I move amendment No. 39:

In page 26, line 16, to delete "prisoner or" and substitute "prisoner,".

These two amendments will ensure that both the prisoner and his legal team will receive notice of the application. There is no reason a prisoner should be disenfranchised from the legal process and he or she should be copied on all relevant documentation. I would be grateful if the Minister could shed some light on the reason the notice is only issued if the judge in question is of the view that it is desirable in the interests of justice. Why are notices not automatically provided to all parties to a case?

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I second the amendment.

Derek McDowell (Labour)
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The judge has the decision in the matter. Clearly a prisoner cannot participate unless the prisoner is somehow involved. I want to avoid a person saying a testimony is invalid because a notice was not served on the prisoner and his legal representative when both were well aware of what was happening and it was adequate to serve it on the legal representative. Physically serving a notice would require handing it to the prisoner. I want to make this workable without in any way diminishing the prisoner's rights. If the prisoner's legal representative is aware of the situation, to co-notify the prisoner and to require the opposite to be done is an unnecessary impediment to making the system work. If somebody in Portlaoise has to testify in a court in Dublin, I do not want a judge saying the Seanad amended this Act so that he or she cannot actually hear the person because somebody did not hand him or her a notice before the hearing started.

Debate adjourned.