Seanad debates

Tuesday, 9 July 2019

Parole Bill 2016: Second Stage (Resumed)

 

Question again proposed: "That the Bill be now read a Second Time."

3:30 pm

Photo of Marie Louise O'DonnellMarie Louise O'Donnell (Independent)
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I welcome the Minister of State. I thought that I would be delighted to have the Parole Bill here but I am not delighted at all. I do not agree with Part 3 of the Bill. It addresses eligibility for parole, which has been radically altered. Section 24 is gone or is certainly unrecognisable. Certain sections of this Bill as I read it a week ago have been erased and a very serious aspect of it, judicial discretion when imposing sentence, is completely omitted. The Bill which I was referring to last week stated: "When imposing sentence upon a person, a sentencing judge may impose a specified period during which that person shall not be eligible for parole." Little did I know that beneath me, in the Lower House, this provision was being eradicated. I was not informed that it was being magicked away.

I was led to believe that my Criminal Justice (Judicial Discretion) (Amendment) Bill 2019 would be dealt with to some degree in this Parole Bill. I did not make that up but somewhere I was led up the garden path. When I read the Parole Bill in its original form last week, it stated: "When imposing sentence upon a person, a sentencing judge may impose a specified period during which that person shall not be eligible for parole." That would lead one to believe that it went some way towards implementing my Bill. Who informed me of the change? It was the Irish Penal Reform Trust, IPRT, which submitted a lobbying document from which Senator Clifford-Lee quoted a few minutes ago. The document outlined what the IPRT agreed with in the Bill from the Lower House and what it disagreed with. It lobbied me about its amendments and informed me that my section of the Bill had been removed and that it was delighted.

The IPRT believes that we must make communities safer and use prisons sparingly. It believes in an early prison release system and that all aspects of parole should be transparent, fair and coherent. I do not disagree with that. It campaigned for the implementation of a statutory parole system, fully independent of political control, and it got its way. It should be here, in the position of the Minister of State, because it is now taking his role. It will be responsible. We know what happens when an executive becomes responsible. The Parole Board is now responsible for everything related to release. The buck will stop with it. We all know what happens to committees and executives when they are in charge. There is no baseline accountability. I fundamentally disagree with that. The IPRT informed me that it knew what was going on. It acted like the Minister of State. It had a number of recommendations related to Deputy O'Callaghan's Bill. The Fianna Fáil Senators should note that Deputy O'Callaghan's Bill, which I thought was excellent, was radically overhauled by this Government, to my detriment. It is not the same Bill that Deputy O'Callaghan introduced. The Irish Penal Reform Trust is against mandatory sentencing and has made recommendations on it. It even recommended that people serving a mandatory life sentence be eligible for parole before the 12 years provided for in the Bill. What is this legislation achieving in reality? The Parole Board is now a Government; it is ministerial.

Last week, 35 family members of murder victims accompanied me to the Seanad. All of these victims submitted impact statements about their lives and feelings and the intellectual and internal damage the death of a son, daughter, brother, sister or parent had caused. Everybody is worried about the victims. We are falling around with worry and compassion about the victims, yet all legislation, sociology, criminology and law is about the offender. It is rarely about the victims. The Irish Penal Reform Trust is concerned about the potential impact of victim input on parole outcomes. It states: "Where submissions by victims are permitted, the legislation should provide for what can be included." These are the people who I should be listening to, who thought it was a good idea to get rid of my section and are delighted it has been eradicated, and who believe it is right to ignore the victims of murder.

This Bill in its current form states that our judicial system is one purely based on reform and certainly not any kind of punishment. I was dealing with first degree murder. That is wilful, purposeful, violent murder, nothing else. No judge is now allowed to even make suggestions for the gravest crime, that is, wilful, violent murder. I have said before that I believe in rehabilitation and change. I also believe in equality before the law. The Irish Penal Reform Trust refers throughout its summary and its subsequent lobbying, as did everybody else who read its document and thought they were on its side, to clarity, transparency and fairness. Its whole document was like a memorare prayer. Every second sentence refers to clarity, transparency and fairness. I was offering that with certainty for the families, the parents, brothers, sisters and children of people who have been violently murdered. I offered that the judge would have the facility to impose, along with mandatory sentencing. One cannot have clarity, transparency or fairness without certainty. I disagree with section 24 on which I will call for a vote. It is outrageous.

Photo of Martin ConwayMartin Conway (Fine Gael)
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I commend Deputy Jim O'Callaghan on his success in bringing this Bill through the Oireachtas. As a fellow member of the Joint Committee on Justice and Equality, where we have had significant engagement on this issue, I acknowledge that Deputy O'Callaghan was very keen to progress the legislation. I was sorry to miss the debate last week on Senator Marie-Louise O'Donnell's Private Members' Bill, but I listened with great interest to her podcast on the subject. The points she has made today are important and relevant, and I hope there is some engagement with them on Committee Stage in respect of Part 3 of the Bill. I am not sure if such engagement is possible, but I hope it is.

This important Bill is to be welcomed, notwithstanding the concerns some Members have with parts of it. During the term of the last Seanad, the Minister of State, Deputy Stanton, was Chairman of the Joint Committee on Justice, Defence and Equality, which completed a significant body of work on the issue of restorative justice, including a report with recommendations and references to the models in south Dublin and north Tipperary which were working well. In addition, we had an important engagement on community courts and what they had achieved in New York city, particularly in the area of Times Square. Of course, when people commit a crime, they absolutely must be punished for it, and that punishment must be fair and proportionate. That is what society expects. However, the time inevitably comes when people are released back into society, and we have a responsibility to ensure that they are properly rehabilitated. Advocates of restorative justice practices, community courts and similar measures emphasise the importance of engaging with perpetrators to help them achieve an understanding of what they have cost their victims. I appreciate that it is a totally different situation where murder and other very serious crimes are concerned. However, in the case of less serious crime, we should always have an open mind and an eye to the future when people are trying to re-enter society. We have a responsibility to ensure that those people, once they have served their sentence, are properly rehabilitated, can gain an understanding of the damage they did to their victims and, most important, are no longer any danger to society.

The Minister of State is well equipped to bring this legislation through the Houses because of the work he did in the Joint Committee on Justice, Defence and Equality in the previous Oireachtas term. It was a full five-year term in which we had an extensive engagement on the issue of alternative sentencing. I hope we have an opportunity to bring as many people as possible on board on Committee Stage.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Cuirim fáilte roimh an Aire Stáit. In broad terms, Sinn Féin strongly supports the proposals set out in this Bill. At the same time, I appreciate the passion with which Senator Marie-Louise O'Donnell has argued her position on the issues. The Bill started well and, despite some heavy amendment on Report Stage, retains at its core that original intent. I am satisfied that the amendments introduced on Report Stage in the Dáil enhance the Bill, particularly in respect of certain definitions and circumstances set out therein. For example, where a family member who would have been the point of contact is deceased, there is now provision in the Bill to enable his or her replacement. The Dáil amendments provide greater detail to some of the provisions in the Bill, and my colleagues were happy to support them.

A balancing of rights must be achieved and, as such, it is right that victims should have a say via a more participatory stake in the justice system and access to legal aid. This is good legislation that will make a significant difference to the operation of our justice system. There are difficult considerations to balance. As it stands, and with the prospect of potential further amendments in this House, I am confident that the Bill can achieve that balance. The system of parole currently operates at the discretion of the Minister for Justice and Equality, under advice from the Parole Board. It has been a long-standing position of the Government that the parole process should be placed on a statutory footing. It is the correct thing to do. The current system is unsatisfactory because it is not based in statute and is ultimately controlled by a politician. My intention in saying that is not to question the integrity of any individual, but this is a matter which requires independence, transparency and a statutory footing.

I commend my colleague on the justice committee, Deputy O'Callaghan, on his efforts in advancing these proposals. It is difficult to get a Private Members' Bill past Second Stage in either House and harder again to bring it through several Stages. It is particularly difficult to draft such a technical and comprehensive Bill, and Deputy O'Callaghan's achievement in this regard is both commendable and valuable. I commend the Minister on his engagement with and support for these provisions. I ask the Minister of State, Deputy Stanton, to encourage his Cabinet colleagues to engage in a similar way with other Opposition Bills with a view to taking them through all Stages. We could do with a bit more of that type of co-operation, and I am glad it happened in this instance. I reiterate my own and my party's support for this Bill. It took a long time to get to where we are, but the progress we are now seeing is welcome.

Photo of Ivana BacikIvana Bacik (Independent)
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I welcome the Minister of State, Deputy Stanton, to the House to introduce this important Bill in the Seanad. I am particularly pleased to welcome him given his former role as Chairman of the Joint Committee on Justice, Defence and Equality. It was my pleasure to serve on that committee under his chairmanship, from 2011 to 2016. As Senator Conway noted, the committee produced several important reports on issues around restorative justice and community courts and also, notably, a report on penal reform in 2013 which made a number of recommendations relevant to our discussion today. I welcome the Bill, which is in keeping with my party's long-standing commitment to penal reform, as expressed by the leader, Deputy Brendan Howlin, when it was introduced as a Private Members' Bill in 2016. I join colleagues in paying tribute to Deputy O'Callaghan for bringing it forward.

It is long overdue that the mechanisms for dealing with the parole process and the Parole Board itself be placed on a statutory footing. I am grateful to the Irish Penal Reform Trust for pointing out to us that the main purpose of parole is to increase community safety by providing structured, supported and supervised transition of prisoners serving long sentences back into the community. A clear, transparent and fair system of parole is in the interests of all members of society, including victims and offenders. That is very much the view that we in the justice committee took in 2013 in looking at how to adopt strategies around structured sentencing and structured release of prisoners to ensure that sufficient and adequate means of rehabilitation would be in place for prisoners serving time and that people would not be released back into the community without some type of structure in place. For a long time, that lack of structure was a point on which our prison system could be criticised. It is only in relatively recent times that we have seen a more structured approach to release, the development of a sentence management process and better legislation.The previous Government undertook a good deal of penal reform but, as Deputy Howlin pointed out, there is still room for a good deal more - for example, the placing of the Prison Service on an independent statutory footing rather than its retention as simply a division of the Department of Justice and Equality. Nonetheless, I see this parole legislation as very much a step in the right direction.

It does not, however, go as far as we recommended in 2013, when we called for the introduction of a single piece of legislation to set out the basis for a structured release system to include changes to remission, temporary release and parole and to provide a statutory framework for an expanded community return programme. All of us on the committee were very impressed by the community return programme we saw in operation within the prisons in Ireland. We were also very impressed by the open prison system we saw in Finland when we did some research on Finnish penal policy. We argued that such legislation would underpin strategies currently used by groups working with offenders post release and potential offenders, recognising that there are some excellent NGOs doing a lot of important work on rehabilitation post release and in assisting the Prison Service within prisons. That is very important to say. All these recommendations are made with a view to increasing the likelihood of rehabilitation and decreasing the likelihood of reoffending, thereby providing a service for victims, the victims' families and the community as a whole. That is a very important context in which we debate the Bill.

I have a procedural issue with the Bill. I raised it on the Order of Business. Although the Bill has been in the system for three years - as I said, Deputy Howlin and others spoke on Second Stage of the Bill when Deputy O'Callaghan introduced it in 2016 - we now see it being rushed through the Seanad in three days in July, during our last sitting week. This tends to happen all too frequently with justice legislation. I said this earlier. It is unfortunate because this is such an important Bill and is so long awaited, and it is a pity we did not have a longer time to debate it. Having said that, my party is fully supportive of it, as am I, and we will facilitate its rapid progress through the Seanad. We do not intend to obstruct it. I just wanted to make that procedural point, that the Bill deserves greater time for consideration.

I wish to make some specific points about the Bill. Again, I am grateful to both the Irish Penal Reform Trust, which gave us a very helpful submission, and Dr. Diarmuid Griffin of NUI Galway, who just last year published a paper on life imprisonment and parole called Killing Time, which is beautifully written and encapsulates a lot of the parole issues we are debating. As I said, I think all of us working on penal reform - and, I hope, victims' advocacy groups - will very much welcome the Bill for placing an existing process on a statutory footing and giving greater clarity and certainty. I listened to Senator Marie-Louise O'Donnell. She is right about the need for clarity and certainty, and I was grateful to her for giving us the opportunity last week to debate life sentences in the context of her Bill. The Parole Bill, however, has an application, and will have a future application, beyond just those serving life imprisonment. Dr. Griffin reminds us: "Life sentences are rarely imposed and are exceptional as a punishment in a sentencing system [such as ours] characterised by determinacy." He gives us an interesting figure: in 2016 life sentences accounted for only 16 out of 12,163 committals to prison. We are therefore talking about a very small number of committals and a relatively small number of persons in prison. However, as Dr. Griffin states, "The ultimate penalty available in a state has a social, political and cultural significance that goes beyond its use as a sanction." Those words are very pertinent. It is very important we scrutinise the Bill in detail because, while it has an application beyond those serving life sentences, its most immediate application, as provided for, is clearly to those serving indeterminate life sentences. While persons released on parole may be released from prison, they are always subject to recall. We should remember that that is genuinely a life sentences in that sense.

The Irish Penal Reform Trust points out a number of concerns it has about aspects of the Bill, and I share those concerns, in particular the increase in the period before which a person serving an indeterminate sentence is first eligible for parole from seven years currently to 12 years. I know why this provision has been put into the Bill, and again I will not oppose it, but it should be possible for those serving life sentences to be reviewed prior to the 12-year point - not that they should necessarily be released. We know that those serving life sentences serve on average 18 years so, in fact, very few if any are released after seven years. Parole decision-making is a process, however, and again, in the interests of good sentence management and structured release, it is key that persons prepare over some years for eventual release. That is in the interests of victims and their families. I am therefore not sure that the absolute 12-year cut-off is essential.

There are also issues surrounding the independence of the board. Is the membership sufficiently independent of the Minister, given that the members are appointed by the Minister? I am glad to see gender balance provided for, and I know we will have more time to debate this in detail on Committee and Report Stages.

I will make two final points. The minimum period of eligibility for 12 years of parole review will apply equally, it seems, to that very small number of children convicted and sentenced to indeterminate sentences. Again, this might be better amended. I refer finally to the role of victims in the parole process. My colleague, Deputy Sherlock, tabled amendments in the Dáil in this regard. I am glad to see that section 41 of the Bill incorporates the right of victims to information. We know how critical that is for so many victims and their families.

Again, I welcome the Bill. I look forward to making more points on Committee and Report Stages and to the speedy passage of the Bill into law.

Photo of Michael McDowellMichael McDowell (Independent)
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I am one of the few people in the House who has never been scared of the idea that people with political accountability should in the end make far-reaching decisions about certain kinds of people who have been sentenced to prison for life. It has always surprised me that people should claim that it is wrong that somebody who is politically accountable should have the final say on such matters. This is why I believe that the idea of an advisory parole board is preferable to a board which makes parole orders itself. I have always thought that Ministers in particular are sensitive to issues of public satisfaction or dissatisfaction with the implications of sentencing policy and early release. One need only consider the well-known Lough Inagh murder case of Shaw and Evans, in which a life sentence meant very long life sentences for two offenders convicted of murder, to realise that there are certain things which can be put on the scales in determining whether or not to grant parole or to allow somebody out on licence, including in the last analysis issues such as the message that is sent out to potential offenders, particularly people coming to Ireland for the purpose of committing sexual murders and rapes. We just have to be careful we do not sweep away in this legislation powers which ought to be retained in the political sphere. It should also be said that the power of remission and commutation of any sentence is vested in the Government under the Constitution to operate through the President. Therefore, the Government has, and cannot be deprived of, an overriding role to commute or remit a sentence regardless of this legislation, and we must bear that in mind.

I echo what Senators Bacik and Marie-Louise O'Donnell said about rushing this through in the last days of this session. There is no rush. The Bill took a long time to get to us from the Dáil. It only passed the Dáil on 3 July of this year, and why this House should effectively turn off its critical faculties to facilitate the Bill's early passage into legislation I do not know. I do not see any reason matters would be in any sense prejudiced if we were to give ourselves a couple of months to look at this legislation to make sure that it is what we wish it to be.

I wish to zero in on section 24 of the Bill. It states:

(1) Subject to this section and section 6(2), the following persons shall be eligible for parole:(a) a person serving a sentence of imprisonment for life who has served at least 12 years of that sentence;

(b) a person serving a sentence of imprisonment of a term equivalent to or longer than such term as is prescribed in regulations made by the Minister under subsection (3), who has served at least such portion of the sentence as may be prescribed by the Minister in accordance with that subsection.

One must look to subsection (3) to see what is the Minister's power. It states:

The Minister may, for the purposes of subsection (1)(b), following consultation with the Board, by regulations prescribe—(a) a term of imprisonment of not less than 8 years, and

(b) the proportion of such a term to be served by a person prior to becoming eligible for parole.

One of the problems with the Bill is that it is not clear from its terms whether these regulations can differentiate between offences. Is it simply intended to be 60% or 50% of the sentence regardless of the offence for which it is imposed or is it a power to make regulations intended to apply different minimum periods or proportions of sentences to different offenders? That is not made clear by subsections (3) or (4). Subsection (4)(d) provides that one of the criteria to which the Minister is supposed to have regard is "the desirability of equality of treatment with regard to eligibility for consideration for parole, insofar as is possible, between persons serving sentences of imprisonment for life and persons serving sentences of imprisonment for a determinate term, and between persons serving sentences of imprisonment for determinate terms of differing lengths".

I do not know what this section means and it has not been clarified. We should not be in a situation where I have five minutes to pose that question. I do not think I will get a very enlightening answer, although perhaps the Minister of State will explain exactly what the section means. It seems to me that section 24 is significantly problematic in terms of the language used in addition to the difficulties raised by Senator Marie-Louise O'Donnell in respect of whether it is appropriate that a sentencing judge imposing a life sentence may make a recommendation that would override the 12-year period by raising it or otherwise, which I presume is what she has in mind.

I will finish on that point as I only have five minutes to make a contribution, which is ludicrous. This Chamber is shaming itself again by running through legislation. Although I am not comparing myself to him, under the current rules of the House former Senator W. B. Yeats would not be allowed to make the speech in which he proclaimed "we are no petty people". Rather, he would be told to sit down after five minutes or so. I make the point, if I may, that-----

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Thank you, Senator.

Photo of Michael McDowellMichael McDowell (Independent)
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-----the Bill should not be rushed through. I commend Deputy O'Callaghan on getting the Bill through the Dáil and to this point, but that does not mean that Members of this House should pass section 24 without knowing what it means.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I thank the Senator. For clarification, as he is well aware, the Order of Business sets out the speaking times allocated to each item and the Chair carries out those instructions to the best of his or her ability.

Photo of Michael McDowellMichael McDowell (Independent)
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There is no need to rush this legislation.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I am not commenting on that, but I point out that the Chair gave the Senator plenty of latitude in regard to his five minutes.

Photo of Michael McDowellMichael McDowell (Independent)
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I am grateful for that. I may have had six or seven minutes.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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The Senator could add another minute to that.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank Senators for their contributions and I acknowledge their concerns and passion. Similar concerns were raised and passion displayed when the Bill went through the Dáil last week. The issues raised by Senator McDowell and other Senators will be dealt with on Committee Stage on Thursday. The subject matter of the Bill is difficult and the balancing act required is very challenging. As the Minister, Deputy Flanagan, stated, it seeks to take account of the perspectives of people who have felt the awful effects of the crimes committed by prisoners who have received a long sentence as well as those of people who believe that the worst of us deserve the opportunity to rehabilitate and, at least, the prospect of some daylight on the other side of the prison walls.

I join Senators in commending Deputy O'Callaghan on introducing the Bill and acknowledge his spirit of co-operation in getting the Bill to this point before the House. I acknowledge the chair and members of the existing parole board and the many other State organisations and non-governmental organisations which provided their expertise and gave us much food for thought in their submissions on the Bill and parole generally. The reforms in the Bill are designed to put the operation of the parole board on an independent statutory footing and ensure that it makes its decisions in an open, transparent, fair and fully informed manner. I believe the Bill achieves that aim and I ask the House to support it.

Question put:

The Seanad divided: Tá, 35; Níl, 6.



Tellers: Tá, Senators Gabrielle McFadden and James Reilly; Níl, Senators Marie-Louise O'Donnell and Victor Boyhan.

Question declared carried.

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
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When is it proposed to take Committee Stage?

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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On Thursday.

Committee Stage ordered for Thursday, 11 July 2019.