Thursday, 11 July 2019
Parole Bill 2016: Committee and Remaining Stages
I would like to make a brief point on section 2. I welcome the Minister of State to the House and wish to say, as I did on Second Stage, how much I welcome the Bill on behalf of Labour Senators, although I regret that it is being rushed through so swiftly. I did not table amendments because the Dáil will not be sitting tomorrow and will therefore be unable to accept any Seanad amendments, but I will support the amendments tabled by my colleague, Senator Ruane. I have a number of points to raise regarding specific sections of the Bill and, given that we cannot address them this week due to time constraints, I hope they will addressed at a future date if necessary.
One of these points relates to two aspects of section 2(1) of the Bill, which I will raise now and then raise again in the context of later sections. Section 2(1) comprises definitions or interpretations. Section 2(1) defines a "legal representative" as "a practising solicitor or a practising barrister". I am grateful to my fellow barrister and colleague, Tony McGillicuddy, for raising with me in a personal capacity an issue arising from that definition. He points out that, given that the definition refers to a practising solicitor or a practising barrister, it is unclear whether later references to legal representatives in the Bill preclude the appointment of a barrister and a solicitor to represent a parolee where that is required. To explain this issue in more detail, the Bill allows for legal representation at parole hearings by a legal representative as defined in section 2(1), which is very welcome. There is also provision in section 14 for legal aid to be provided for the legal representative. The issue I am raising, and on which I seek clarity from the Minister of State, is whether "legal representative" should be read to mean either a barrister or a solicitor or whether it might be possible for victims to be represented by both in some cases, as is generally the case in contentious matters. Parole hearings might be said not to be contentious, but clearly they could be. This should really be clarified.
The specific provision to which I am referring is section 14(1), which again makes reference to legal representatives. This reference is made in the context of the application. The section is titled "Procedures of Board". Section 14(1)(a) refers to the granting of legal aid. Sections 14(1)(c) and 14(1)(d) enable the relevant person and his or her legal representative to attend a meeting with the board. Later in the Bill there are provisions allowing persons seeking parole to apply on their own behalf. I seek clarity as to whether it is possible for legal representatives to make applications on their behalf. Again I am grateful to Tony McGillicuddy for pointing this out. There seems to be a discrepancy between section 31 of the Bill and section 26(3). Section 31(2) enables an application to be made by a person or on his or her behalf to vary a parole order whereas section 26(3), which refers to applications for parole, does not make express provision for applications to made on behalf of a person. This seems somewhat anomalous given that legal representation is, rightly, provided for.
I have raised the issue of whether "legal representative" must be read as a single representative or whether it could include both a solicitor and a barrister where necessary but there is also the issue of whether applications can be made by a lawyer on behalf of a parolee. There might be particular cases in which people would want their lawyer to make the application on their behalf, as they are empowered to do under section 31 in the case of applications to vary parole orders. I have made a number of points. They relate to different provisions of the Bill but, as section 2(1) contains the definition of "legal representative", now seemed a good time to raise them.
Another issue, which I will raise later and which I raised on Second Stage, is the issue of whether the definition of "parolee" includes a child who has been sentenced to life. The Irish Penal Reform Trust has rightly raised concern about the 12-year minimum, which it believes is too high a bar for a child serving a life sentence. I will raise that issue again when we come to section 24 as that is the more appropriate place to discuss it but I looked again at section 2 and there is no distinction made in the definitions in respect of parolees who are minors. An amendment could have been tabled in that respect had this Bill not been rushed through at this late stage. I welcome the Bill and I will not stand in its way. I am just putting down markers as to issues that could have been dealt with better had we had a little more time to deal with the Bill, given that three years have now passed since it was first introduced.
I move amendment No. 1:
In page 9, between lines 12 and 13, to insert the following:“(4) Notwithstanding subsection (3)any regulation made by the Minister under section 24shall not have effect unless a resolution approving such regulation has been passed by each House of the Oireachtas within 21 days on which those Houses have sat after the regulation is laid before it.”.
I will call for a vote on this. The subsection proposed in my amendment effectively requires positive approval by both Houses of any regulation made under section 24 fixing the minimum proportion of a non-life sentence which must be served. The present version of section 4 merely allows either House to veto any such regulation. In my amendment I am suggesting that the Minister would have to positively justify such regulation to the satisfaction of both Houses in order to make the regulation effective. The Bill as presently drafted assumes that each House will acquiesce. In other words, the regulations are a fait accompli. Should my amendment pass, the House would have a chance to probe and scrutinise the Minister on the rationale underpinning his proposals. This is very simple but very important and I would like this to be considered. The Oireachtas should consider the Minister's regulations before they become law instead of them automatically becoming law whenever the Minister published them with the only possibility of overturning them being if either House of the Oireachtas passed a motion annulling them, as would happen under the law as currently designed. The passing of such a motion is an exceptionally rare event. I do not believe it has ever occurred under any other legislation containing similar provisions. I will call a vote on this amendment.
I support my colleague, Senator Marie-Louise O'Donnell, on this issue. One cannot doubt her commitment to ensuring a proper system for sentencing is put in place with regard to the issues that are of concern to her and those she represents through her association with AdVIC. I will support the Senator's amendment in a vote.
I thank the Senator for her amendment. Section 4 deals with the Minister's powers to make regulations under the Act. Section 4(3), which, as the Senator has already pointed out, is a standard provision in legislation, provides that if the Minister wants to use any power to make regulations under the Act, he must lay a copy of that regulation before each House and that, if either House is not happy with the regulation, it can annul them by resolution. Each House has 21 sitting days to do so. This effectively gives each House a veto on any regulation the Minister proposes to make under the Act.The Senator's amendment seeks to add a further provision, without deleting the first provision, stating that the Houses must pass a resolution approving any regulation made under section 24, that is, to extend parole to other categories of prisoners within 21 days or it will automatically lapse. While a provision somewhat similar to this is occasionally used in legislation, it is very rare. In this case the Minister believes it is unnecessary because the provision already under section 4 is sufficient and the power to annul provided there already fulfils the requirement.
It also unclear whether regulations made under section 24, and therefore covered by the new subsection proposed in amendment No. 1, would also be covered by the existing section 4(3), potentially resulting in an absurd situation in which both provisions apply at the same time and a lack of clarity as to which, if any, would prevail. When we deal with subject matters such as this, it is of the utmost importance that there is legal certainty and that unintended consequences are avoided.
Section 4 also gives the House the power to annul the regulations. How it arrives at this decision is a matter for the House, not the Bill. For these reasons I am not in a position to support the amendments. They could lead to legal uncertainty, unintended consequences and a conflict with what is already in the Bill, which is not being amended at all. I ask the House to oppose the amendment.
I move amendment No. 2:
In page 14, between lines 29 and 30, to insert the following:“(7) A person who, by virtue of subsection (4), is not qualified, or has ceased, to be a member of the Board may apply to the High Court for an order that he or she may hold the position of member of the Board, and the High Court may, upon such an application, make such an order if it considers that it would be in the public interest for it to make such an order.”.
I thank the Minister of State for coming before the Seanad. I welcome the Bill and the fact that our parole system will soon be placed on a strong statutory footing. Parole is an absolutely fundamental and necessary part of the rehabilitative nature of our criminal justice system. I welcome the work done in this area by Deputy O'Callaghan and the fact that the Bill has been accepted and brought through the Houses by the Government.
Section 12 sets out the provisions relating to the resignation, removal and disqualification from, and ineligibility for, the Parole Board to be established on a statutory footing by the Bill. The Parole Board is the body that will be given responsibility to adjudicate on parole applications. It is the beating heart of this legislation and the main means by which its rehabilitative aims will be realised and implemented. Therefore, the membership and shared competencies and experiences of the board are a crucial balance to get right to ensure this system works well and fairly for those applying for parole. I note the obvious work done in section 10, which sets out detailed provisions on membership, the bodies that will nominate members, etc. I am concerned, however, by the provision in section 12 relating to the disqualification of members, in particular by subsection 4, which states that anyone who is convicted of an offence will be disqualified, with no opportunity to appeal or recourse to challenge that decision.
As the Minister of State will be aware, I have a keen interest in the issue of spent convictions and criminal record disclosures and I have legislation in this regard pending before the Houses. My view is that a provision relating to someone's suitability for a role such as this in the context of his or her criminal record must have regard to his or her individual circumstances, proportionality and a recognition of the value of someone with experience of a conviction to this parole process. This is the spirt in which I have tabled this amendment. It is a near identical provision to section 55 of the Charities Act 2009, which allows for someone with a criminal record to apply to become a member of a charity board through the High Court if it is deemed in the public interest. For example, if a former offender wished to serve on the board of the Irish Penal Reform Trust, it would obviously be in the public interest to have someone with that experience on the board considering the work it does. I therefore ask simply that the same provision be made in this Bill. Arguably, the need for diverse experiences within the criminal justice system is even greater than the need for such experiences on the board of a charity. The amendment would allow someone with a conviction to apply to the High Court for an order to serve on the Parole Board if deemed in the public interest. I would like this parole adjudication process to be fully inclusive and I do not want the disproportionate blanket ban contained in subsection (4) to act as a barrier to the contribution of valuable experiences to this process. I hope the Minister can accept the amendment.
I express my strong support for the amendment.It is a very important one. It makes sense to ensure there is a mechanism for persons with certain convictions to seek High Court permission to serve on the parole board.
Support for the amendment is present in the current wording of section 12(4), which only disqualifies people in respect of certain convictions, for example, convictions on indictment, convictions involving fraud or dishonesty, or certain declarations or disqualifications under the Companies Act. Obviously, somebody who has a summary conviction which is not for an offence of fraud or dishonesty is eligible to be on the board. It makes no sense to me that certain convicted persons can apply and can be members but others cannot.
When we are thinking about the functions of the parole board, dealing in the first instance with persons sentenced to life and, potentially, with persons sentenced to lengthy sentences of eight years or more, patently, people who have been convicted on indictment of more serious offences should be the people who are serving on boards. If we are agreeing to the principle that persons convicted of certain offences are eligible, surely those convicted of offences for which a lengthier sentence is likely are going to be more important on the board.
I note that the Irish Penal Reform Trust has suggested this amendment. It states it believes the relevance, gravity or seriousness of length of time since an offence was committed must be considered in any assessment of conviction history. This sort of blanket ban on certain convictions, as Senator Ruane has said, is not proportionate and, indeed, lies counter to the stated functions and purpose of the parole board.
I stress my support for the legislation. However, this would be a beneficial amendment to make. If we cannot make it, given the unfortunate shortness of time we have to debate this, the fact we are taking all Stages today and the fact the Dáil is not sitting tomorrow, perhaps we can come back at a later date and amend the legislation. There are a number of ways it could be improved and this is clearly one of them.
Senator Ruane mentioned the issue of appeal. Of course, a difficulty with the Bill as currently drafted is that it no longer has provision for appeal against the decision not to grant parole, as Deputy Jim O'Callaghan’s Bill did in its original inception. That is another procedural issue that could perhaps be dealt with in a different way. All of us have acknowledged Deputy O’Callaghan’s immense contribution in putting his Bill forward, but Second Stage was taken in the Dáil in June 2016, which is more than three years ago. It is unfortunate we have been given such a tight timeframe within which to debate the amendments.
I thank Senators Ruane and Black for tabling the amendments. As has been stated, section 12 deals with the circumstances where members of the board are to be removed, disqualified or become ineligible to hold office. Subsection (4) of section 12 provides that a member of the board ceases to be qualified and ceases to be a member of the board if that person is convicted on indictment of an offence or of a fraud or dishonesty offence, or has a declaration or disqualification under the Companies Act made against them. The amendment seeks to give the High Court the power, where a person disqualified by this section applies to the court, to override the section and make an order that the person may be appointed to the board while leaving the section itself in force.
Subsection (4) is standard in this kind of Bill. It does not disqualify every person who has committed any offence whatsoever, as Senator Bacik said. It is limited to those who are convicted on indictment and those convicted of fraud and dishonesty offences. I am sure we all agree that honesty and integrity are essential for persons who are to be making these kinds of decisions. Of course, the High Court does not and should not have a role in appointing persons to State boards, except of course in circumstances where the court already has the power to review a decision of the Minister on such an appointment where it finds it has been arrived at arbitrarily or unfairly.
I am satisfied that subsection (4) is proportionate. Of course, as Senator Bacik said, we must always keep legislation under review. If, in time, a clear problem identifies itself and, for instance, this provision is demonstrably precluding suitable persons from being appointed, then we can look at it and consider whether any future legislative reform might be needed. I know the matter of spent convictions is one close Senator Ruane’s heart, and I commend her on that. We did a lot of work on that in the justice committee when I was a member. However, these matters are being looked at separately.
I am of the view that this amendment is not necessary or wise at this time. I would ask the House, therefore, not to support it. We will keep the legislation under constant review. We are breaking new ground here to a certain extent and the Senators’ point will be kept in mind when we are looking at this in the light of experience.
Catherine Ardagh, Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Lorraine Clifford Lee, Paudie Coffey, Martin Conway, Mark Daly, Paul Daly, Aidan Davitt, Frank Feighan, Robbie Gallagher, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Joe O'Reilly, James Reilly, Neale Richmond.
May I say to Senator Marie-Louise O'Donnell that if you thought I was a bit hasty in response to your challenge to me during the vote, I withdraw any remark you thought might have been inappropriate. As you all know, once a vote is called, I cannot deal with anything.
I move amendment No. 3:
In page 24, between lines 40 and 41, to insert the following:“(11) When imposing sentence upon a person, a sentencing judge may impose a specified period during which that person shall not be eligible for parole, to include any sentence that the court may determine over and above the minimum period as set down in subsection (1)(a)above.”.
I thank the Minister of State for his patience. I am very much in favour of the Bill, aspects of which are excellent. I have grave concerns about one matter, namely, the fact that version of the Bill introduced in 2016 became the subject of political theft last week. Fianna Fáil Senators know that the version before us is completely different from the version Deputy O'Callaghan originally brought forward.
There was a provision to give the court discretion to decide on a set tariff that must be served before parole can be considered for the offence of murder and only murder. That is what it was - no more and no less. I do not agree with covering eligibility for parole that has been radically altered. Section 24, if not quite gone, is certainly unrecognisable. It has been rewritten extremely badly because much of it cannot be understood.
The most serious section of the Bill, as I read it a week ago, has been erased. The omitted section 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" in respect of first degree murder, which I accept is a filmic term. That has been eradicated - magicked away. I was led to believe that what I am seeking to do via my Criminal Justice (Judicial Discretion) (Amendment Bill) would be somewhat dealt with in this Parole Bill. Representatives of the Irish Penal Reform Trust informed me with great glee that this section had been deleted while they were lobbying for their amendments. They indicated that we must make communities safer and use prisons sparingly. They believe in early prison release. They believe that all aspects of parole should be transparent, fair and coherent. I also believe that. Political cowardice has won the day, however, by virtue of the galloping hordes of those with offender anxiety of biblical proportions - not offenders themselves, with whom I have worked through the years - who stand up for those barbarians who ruined families and communities by committing murder.
The net effect of this recent legislative evisceration is simple. If we accept the Bill as it stands, whereby a court may under no circumstances hand down or even recommend a set tariff to be served with a mandatory life framework, we are saying that our judges should have no discretion within the life framework when it comes to the most heinous of crimes. The political effect of the theft of this simple but effective section by Fine Gael and Fianna Fáil, which has acquiesced, means that we have now given legislative imprimaturto a transfer of what is a blindingly obvious judicial function, sentencing, into the hands of the Parole Board. Sentencing should be transparent fair and coherent; it is not. When it comes to murder, it is uncertain. The offence of murder requires a life sentence, but it does not mean life. I was asking that, when handing down a sentence, a judge may impose a specified period during which the person involved shall not be eligible for parole. That was all I was saying in respect of murder - wilful, powerful, violent, purposeful murder.
Fine Gael is afraid of making real and genuine decisions and is influenced by quangos. The Irish Penal Reform Trust is trying to tell it and me what to do. Sociologists are trying to tell me and everybody else what to do. Academics are writing papers telling me and everybody else what to do. In the end, bravery gets lost. Fianna Fáil is worse. Deputy O'Callaghan's Bill is now unrecognisable. They were jumping up and down praising it. If I were to ask Fianna Fáil Senators if they could tell me the difference between Deputy O'Callaghan's Bill as it came to the House and the Bill as it stands today, I bet they would not pass that exam.
The Parole Board is to become a Minister in the form of a committee. The Minister has no power, no hand, act or part. His role is over and our role has been taken away. It is the handover to the executive. It is happening everywhere with individual voices getting lost. The representatives of the Irish Penal Reform Trust campaigned for the implementation of a statutory parole system, fully independent of political control and they have got their way. They should be here; they are now at ministerial level. No one here is responsible. No Minister is responsible anymore. The executive, the Parole Board, is now responsible for everything to do with release. The buck stops with it and we all know what happens when committees are in charge. When an executive is in charge there is no baseline responsibility. I know the answer - the Parole Board is now a kind of government in itself. The board is the military wing of the entity seeking to bring about this legislative coup and the Irish Penal Reform Trust is surely its political master. There is no corner of mindless liberality to which this organisation will not go to ensure offender-led justice. Are we now saying that the offenders are running the system and the victims are to be left hurling from the ditch? That seems to be what is happening. Are the great voices to be silenced? Executives do not get blamed. They are the system and the system is never wrong and always offers a place to hide.
What of the victims? I have met hundreds of family members of victims of murder. Those children, mothers, fathers, brothers and sisters outlined how their lives had been impacted upon, their feelings and the internal eternal damage caused by the deaths of their sons, daughters, mothers, fathers, aunts and uncles. However, the Irish Penal Reform Trust is very concerned about the potential impact of victim input on parole outcomes. It has stated, "Where submissions by victims are permitted, the legislation should provide for what can be included."Senator Bacik, who was involved in developing victim impact statements, should look carefully at that.
Who thought it was a good idea to get rid of my section in the Bill? Who believes it is right to ignore the victims of murder, or that a judge should not be allowed impose a specified period during which a person shall not be eligible for parole? This Bill, in its current state, shows that our judicial system is based purely on reform, rather than punishment of any kind. One is told there is something wrong with them if they mention punishment. Judges are not even allowed suggest a specified period without parole, even for the gravest crime of the willful, violent taking of a life. Even when I argue like this, people do not believe me. I was an educationalist all my life, and I believe totally in rehabilitation and change. I have atoned for my own sins for most of my life, and have forgiven the sins of others.
I also believe in equality before the law, and the Irish Penal Reform Trust, IPRT, wrote to me again today to point out to me why I am wrong about this Bill. It has referred, throughout its summary of the Bill and its subsequent lobbying, to clarity, transparency, and fairness. Going though its arguments is like reading the memorare, because every second sentence is about clarity, transparency and fairness. Where is the clarity, transparency and fairness for victims and their families? There is no certainty in mandatory life sentences. A family member of a murder victim told me they will never get justice, because nobody ever believes murder will happen to them or their families. They do not believe it because it is too ugly, and they never think it will come their way. I am offering clarity, transparency and fairness under the auspices of certainty in this section. That is all I am offering. One cannot have clarity, transparency, or fairness without certainty.
In this section, the Government appears entirely incapable of walking even a few centimetres in the shoes of the families and communities of homicide victims. Is the Minister of State so lacking in any kind of emotional or legislative maturity that, until he holds his own brutally murdered son or daughter in a morgue, he will be incapable of understanding that offender-led justice means only one thing - victims for the criminal classes? I am speaking about murder.
The Minister of State, quangos, advisers, and groups lack bravery and I am now questioning my lifelong loyalty to Fine Gael. I saw the Government's lack of judgment when dealing with farmers yesterday. I have also seen it both generally and in the areas of health and housing, but it has now come to my door. I am a patron of AdVIC, and I have spent years dealing with people who have been destroyed forever by what has happened to them, but we are now coming up with legislation for offenders. I have hundreds of files about this. I want to see the same equality and balance for the offended as for the offender, in cases of first-degree murder. I am not referring to anything but first-degree murder, and I do not want to get involved in anything else because those are issues for the Judiciary. Neither I, my colleagues in AdVIC, the wider group of families who have lost members to violent murder, or the public will sit idly by any more when we open newspapers every day to be met with stories of violent murder. This terrified Oireachtas continues to make a mockery of the lives of innocent victims. I demand that this section, which states, "When imposing sentence upon a person, a sentencing judge may impose a specified period during which that person shall not be eligible for parole", be reinstated. I disagree with its omission and will call for a vote on it.
I listened with courtesy to what Senator O'Donnell said. I acknowledge her great passion and commitment, and her work with AdVIC. I too have worked with AdVIC and have worked on victims' rights for many years. However, I have also worked with offenders, both as a criminal justice practitioner and as an activist. I take grave exception to the Senator's critiques of the IPRT and her attacks on that excellent organisation. I served on the board of the trust many years ago. IPRT is a non-governmental organisation. It is not a quango or an arm of the State and cannot be characterised as such. The trust has, over many years, taken brave and courageous stances in support of penal reform.
The IPRT's call for placing the Parole Board on statutory footing has not been made in isolation. Many others have called for it, including the Joint Committee on Justice and Equality, on which I was proud to serve as a member during the previous Seanad, along with Senator Conway, under the chairmanship of the Minister of State. In 2013, that committee recommended placing the parole process on a statutory footing. The Department of Justice and Equality has also acknowledged that need over many years, so it has not been called for by only one body or organisation. It is a well-established, important reform of our penal process. While we have a Parole Board, it needs a statutory framework, and that is important. Placing the Parole Board on a statutory footing has also been a long-standing policy of my own party.
This reform is not only in the best interests of offenders. Ensuring a structured programme for the release of persons serving long sentences, whether indeterminate life sentences for murder or any other long sentence, is also in the best interests of both victims and our society as a whole. The current practice, whereby persons are eligible for parole after seven years of a long sentence, will change under this section, and that minimum term will be extended to 12 years to give certainty to victims and their families. That term may be too long and may lengthen the time people serve, given that the average life sentence term served is 18 years. However, parole is a process and consideration of applications may start years before a person is released.
I also acknowledge Senator O'Donnell's great initiative in bringing forward opportunities for us to discuss life sentences for murder, and I was delighted to participate in that debate on her Bill. However, I cannot support this amendment - and I did not support her Bill - although I supported the opportunity to debate life sentencing. We should not have mandatory minimum sentencing in our laws generally, though it is provided for in other legislation. Indeed, sections 24(11) to (15), inclusive, of this section refer to presumptive minimum terms under firearms, drugs, and sex offences provisions. It would be better to do away with mandatory life sentences for murder and replace them with determinate sentencing, subject to a maximum of life imprisonment, as we have for manslaughter. Anyone who has worked in criminal justice will know that a conviction for murder may relate to a broad spectrum of human behaviour, or killing that may include premeditated, gangland crime on one end and less serious offences on the other. While each murder is deeply devastating for victim's family, an argument could be made for structured discretion in sentencing for murder, subject to the maximum of life imprisonment, just as there is for manslaughter and rape. That is the bigger reform I would like us to consider, but I accept that it is beyond the scope of this Bill.
This Bill provides for a sensible and structured statutory framework for the consideration of eligibility for release on parole of persons serving long-term sentences. I have critiqued some aspects of that. It is unfortunate that consideration is not given specifically to children, or those under 18 years old, who are serving life sentences in this section. Twelve years is a long time to wait before eligibility for parole in the life of a child. I will support Senator Ruane's amendment No. 4, which is coming up next, which would grant more flexibility in when someone can be considered eligible for parole. That would be a sensible reform.I commend the Irish Penal Reform Trust for its great work. There has been, at my instigation, an Oireachtas all-party group on penal reform, which has met quite a number of times over various years. We might reinstitute it in September. I hope all colleagues who have an interest in penal reform, particularly Senator Marie-Louise O'Donnell, would attend those meetings and meet the Irish Penal Reform Trust, Advic and others to discuss how best to make progress on penal reform matters. The Judicial Council Bill is very important because it will provide for sentencing guidelines for the first time and we will then see the structured discretion in sentencing that we need. The Parole Bill is an important reform, flawed in some ways with an unfortunately short timeframe in which we have to debate it, but very much worthy and deserving of our support. The Irish Penal Reform Trust is quite right to support it, not just in the interests of offenders but in the interests of victims and all of us.
I will not take much of the Minister's time in what I have to say. One of the great things about being in the Seanad is that we can sit and listen to debate and different sides of the argument. Senator Marie-Louise O'Donnell's passion and conviction in this area is beyond question, as is her commitment to Advic. Those who have suffered at the hands of the cold-blooded murderers we are speaking about deserve more certainty in their lives.
I see what Senator Bacik is speaking about and I accept that a more determined system would probably be better where we could have some certainty when people are being sentenced, but we are faced with a Bill that is going through today and the amendment, unless I am completely misreading it, is very simple. What we are doing is giving discretion to judges where the most horrendous crimes take place. I fully agree with Senator Bacik that murder occurs for many different reasons and rationales. I am mindful of murders that took place in Ireland in 1976 or 1977, when two men went on a rampage throughout the country and one unfortunate young girl was pulled out of a lake in Connemara. These guys came here with nothing else to do. That is what they wanted to do. They wanted to murder young women. To think they could find themselves before a parole board in seven or 12 years would be unthinkable. I remember the period in Galway at the time. The entire city was in absolute terror because it was known these guys were in town. When they were eventually put in jail surely to God it was not beyond the capability of the judge to state they should not go before a parole board for 20 years. It happens in other jurisdictions.
I agree with the approach of Senator Bacik, and I accept that if a Bill comes at some stage in the future we would amend this, but right now I fully support Senator Marie-Louise O'Donnell in what she is trying to do. I fully support the people in Advic. I cannot imagine what it must be like to be the mother or father of a murdered child and to see the murderer 12 years later walking down the street. I cannot imagine what that must be like. I always think of that young boy - I cannot remember his name - who was taken on his way home from lunch at school. Every now and then his name comes up.
I cannot begin to imagine what his poor mother and father must feel. At the time of the Moors murders I was living in England and there was the way they played with the families. At least they were locked up and kept there until they expired. What Senator Marie-Louise O'Donnell is trying to do is allow judges to state this guy or woman should not go before a parole board for X number of years. At least it would give some certainty. I agree with Senator Bacik that we need to go back and visit this and come up with a more determined and certain system in the very near future.
I want to be associated with everything Senator Bacik has said. Notwithstanding the content of the amendment, it is extremely important for us that when we think about people who work in penal reform, such as the Irish Penal Reform Trust, it is not an offender versus a victim or introducing offending legislation. People who look to reform the penal system, the parole system and the justice system do so with the same ultimate goal of reducing crime. When people work with offenders in terms of applying human rights principles and rehabilitative principles to the prison system it is with the ultimate goal that when the person is reintegrated into society and let out that there are no more victims. This is not to ignore the current victims of a particular crime. The Irish Penal Reform Trust has stated every time it speaks about offenders that it also speaks about the need for victim support and it is not that one cancels out the other. We need to be very clear that working with offenders in penal reform is looking to reduce crime, recidivism and the number of victims. It is not to disregard all that victims have gone through and do go through or to ignore victims' rights in any shape or form.
I commend Senator Marie-Louise O'Donnell on bringing forward this important amendment. Just as I supported her Private Members' Bill last week, I am very happy to support the amendment. I support the principle that judges should be in a position to make a recommendation. As I pointed out last week, and it arises here again, the precise amendment we are looking at would provide that a sentencing judge may impose a specified period. I would be happy to support that at this point because the principle underlying this is that unless and until we have a system of the type described by Senator Bacik in her contribution-----
-----it is reasonable for us to seek to intervene at this point in the matter.
Senator Bacik did a slight injustice to Senator Marie-Louise O'Donnell in not acknowledging what she herself said, namely, that she accepts the principle of the Bill in general. This is an important point. What I hear coming from Senator Marie-Louise O'Donnell is that she accepts the principle of the Bill but seeks to tweak it in a way that is appropriate given the law we have at present and given the law we will have after the enactment of the legislation.
Although I am very cognisant this is a very serious topic, nonetheless I am grateful to Senator Marie-Louise O'Donnell for adverting to the Memorare. I am sure it was only a matter of time before she or Senator Bacik did so. I was going to make passing reference to the Catholic Church's evolving teaching on capital punishment, which is interesting. We are not, thankfully, in a capital punishment regime here. To recap on what I said last week in that debate, when section 1 of the Criminal Justice Act 1990 abolished the death penalty for any offence in Ireland it formally removed the concept of an eye for an eye from our criminal justice code. No human being should ever be deprived of his or her life for any reason whatsoever, no matter how heinous the crime. It is interesting to see how the Catholic Church's teaching has evolved in this area. Certainly under Pope John Paul II the position was very much that it could be acceptable in theory, and this is in the current catechism. One could imagine a country where there was no law and order and where it was not possible to safely incarcerate people, but the position was that it is hard to imagine circumstances in which it could ever be justified. Pope Francis has moved to put the lid on that and state capital punishment can never be justified. This is a position with which we are all comfortable. Respect for life at all stages is what we should aspire to in our law, from its very beginnings to its very end, without exceptions.The abolition of the harsh penalty of death involves a quid pro quo, that is, if the ultimate penalty is not to be available in law, surely it must be expected that the tariff for the most serious crime, murder, should reflect its sheer gravity. That would bring some closure to victims’ families, to the extent that it could ever be possible in those awful circumstances. We cannot and should not take a "lock them up and throw away the key" approach to sentencing, as they seem to do in the United States or at least some parts of it. We must try to ensure the perpetrators of crime are not viewed as a lost cause, incapable of redemption. In an ideal world we would always hope convicted criminals were capable of redemption and reintegration into society. It is worth our while reflecting on the purpose of sentencing, which I accept is to punish. That part is included. There is a penalty due for the wrong one does and it is due to society for the wrong one does to its individual members. There is a lot we could say about the necessary investment of time and resources in systems of restorative justice where justice can also be rendered in some way to the direct victim of the crime which obviously is not possible in the case of murder, but punishment is included as is prevention, while the person is incarcerated, and deterrence, in that others will I hope be prevented by the successful operation of investigation, prosecution, conviction and sentencing. Rehabilitation must always be central to our purposes. There is a balancing that is needed in the system, but before we can win widespread support for the work of rehabilitation, redemption and reintegration into society, it seems that the public must rest assured that an adequate punishment has been imposed and a proper sentence is being served. That is part of the quid pro quoin seeking public confidence in and support for a humane criminal justice system.
It is almost barstool chatter in Ireland. When one hears that somebody was sentenced to life imprisonment, the automatic reaction is to think to oneself that life means X number of years and that the person will be out in seven. There is a need for clarity from the beginning for the integrity of the system, at least to a certain degree, because behaviour in prison and the evolution of a person in it can and should have an impact on matters thereafter. That is part of the work of the Parole Board. Senator Marie-Louise O’Donnell and AdVIC noted that what was being proposed mirrored the practice in other jurisdictions, including the United Kingdom. That is the reason I support her amendment, although I would perhaps like to see it changed from being the imposition of a specified period to giving the ability to judges to recommend the specified period. I agree with Senator Bacik that what is really needed is structured discretion in sentencing-----
-----subject to a certain maximum and, I dare say, a certain minimum period also.
I will make one final point in passing. Sentencing is the time to deal with the attitude that underlies crime and the circumstances surrounding it. There is a lot of talk these days about the need to name and create penalties for specific hate crimes. While I understand the thinking and sentiment behind it, it is fundamentally wrong-headed because very often it is the intersection of identity politics and criminal justice. The attitude that lies behind the crime, whether it be sexism, racism or other moral fault, is something that must be dealt with separately, through the education system and in all of the ways we try to socialise citizens. It may also be relevant to the sentence imposed but creating specific crimes to differentiate between different categories of people who suffer and are the victims of the same crime is wrong. That is not the subject of the Bill-----
Senator Marie-Louise O'Donnell's opinion is very much influenced by her engagement with victims, which has very much been hands-on for many years and it equips her with a viewpoint on these matters. Her view has developed from intensive engagement with victims and her testimonial must be given due respect and definitely listened to.
Most of the time I agree with Senator Bacik, but the Irish Penal Reform Trust is not beyond reproach, any more than any other organisation, and does not always get it right. No organisation does. That said, it has done enormous good work and the message that should go out from here is that while it has done a lot of good work, like every other organisation, it is not beyond reproach. To be fair to Senator Marie-Louise O'Donnell, she is talking about first degree murder where there is no equivocation or mitigating circumstances. It may not be possible to address the issue through this legislation, but we need to engage in a debate at another stage to see how we can address it. Every item of legislation brought to this House is open to amendment and should be reflective of people's views and changes in society. The reason we are here is to amend and improve legislation. I am interested in hearing what the Minister has to say about the matter. From time to time Senator Marie-Louise O'Donnell does deliver incredibly passionate addresses in this House and this is one of those days.
I thank colleagues who have spoken in support of my proposition. To clarify, what I favour is more wholesale reform of sentencing for murder. As Senator Conway is well aware, we do not have the concept of first or second degree murder in our law. Anyone convicted of murder, regardless of the context, receives a mandatory life sentence. That is what I would like to see us change. I accept that it is not possible to do so in the Bill before us, but we should move towards a system where judges would have discretion in sentencing for murder, subject to a maximum sentence of life imprisonment, in the same way as they do in sentencing for manslaughter or rape.
I cannot support Senator Marie-Louise O'Donnell's amendment because it would mean that a judge in sentencing a person within the current system, under which there is a mandatory indeterminate life sentence for murder, would be empowered to prescribe a minimum period of custody during which a person would not be eligible for parole. That would lengthen the time persons would serve prior to being eligible for parole and could amount to a double punishment where somebody had been sentenced to what was an indeterminate term of life imprisonment. Within the framework envisaged by the Bill, a person would be eligible for parole after 12 years, but there would be an additional layer, if the amendment were to be passed, whereby they would not be eligible for parole until another term had been served. I do not see that as a sensible or reasonable approach to take to sentencing within the current system. That is the reason I oppose it. As I said, I am opposed generally to the concept of mandatory minimum sentencing. It is better to set maximums in sentencing legislation and allow tructured discretion in sentencing guidelines for judges.The average life sentence served in Ireland is 18 years but there are quite a number of people serving life sentences who have been in prison for more than 20 years. According to the Irish Prison Service in 2017, two persons have served over 40 years. We should be clear that it is extremely rare, if ever, that anyone will get out at seven or 12 years and that life sentences are longer in our system.
I do not want to give the impression that I think we should be closing down the Irish Penal Reform Trust; I am not at all, it is a wonderful organisation. I was just very angry with it for some of the things that it has suggested about victim impact statements and the controlling of such statements, particularly when I am trying to stand up for victims of great grievous, heinous crimes. They also did not particularly like my idea of a judge having the facility to impose certain tariffs. Eighteen years is all very well and the Senator is correct, there are 355 prisoners for murder in jail at the moment and 17 to 18 years is the average term that they serve. I asked the question of who decided that someone's life was worth 17 years? In the 1990s it was nearly 12 years and before that it was nearly seven years. Who is deciding this? I was trying to introduce certainty around what Senator Bacik spoke of, a mandatory life sentence, maybe of life or notionally of life, but it is not. That is the core, choking problem and to get rid of that, because there are degrees of murder, although I do not like to use that expression-----
Yes, and in that case they would not all have this mandatory life sentence. The whole area of consecutive and concurrent sentencing also needs to be looked at. It is enormous. If two people are burned or killed, which life sentence is the prisoner doing? There are many families of such victims in AdVIC. I will not stop and I will continue to stand up for victims in whatever way I can but the law does equalise. I am delighted with aspects of this Bill and am personally delighted at parole rising from seven to 12 years, which gives some certainty to families of victims. I will continue to speak for the families. I have worked in disadvantaged areas all of my life, and taught in them, and been very proud to do so. I would be equally as proud to stand up for the victims who, interestingly, also come from very disadvantaged areas. Look at the work of John Lonergan or any work on prisoners in Ireland, what happens to people and how they end up there. That is another day's work.
We do not have first degree murder here, it is a filmic term but it is something that we use to convey that a crime is so heinous and violent, that it was not an accident, grievous bodily harm, fatal assault, it was not a thump outside the chip shop but it was murder with intent.
I can see that if I call a vote I might have the magic five Members, but all I am doing is standing up for the victims of this appalling crime. I am disappointed that it was magicked out of the Bill and that when I had been arguing for it in this House it was being obliterated in the Lower House. I am also disappointed that Fianna Fáil did not support me since we supported the Bill generally but maybe it is busy talking about other things.
I thank the Senators for a very interesting debate. The Government is very conscious of the position of victims. Several measures have been taken to support the victims of crime in recent years. We do more than just stand up for victims; we actually act. Senators will be aware of the Criminal Justice (Victims of Crime) Act 2017 which gave a myriad of rights to victims of crime. All criminal justice agencies have put in place measures to support victims. The Department of Justice and Equality provided funding of €1.712 million for victims' organisations in 2018, including AdVIC. We have put in place serious, effective and strong legislation to support victims and we are also funding victims' agencies and organisations while the criminal justice agencies have also trained their people in supporting victims. A lot is going on there, and more needs to be done, but people should not think that the Government does not support victims. We do and have been doing so for quite a while.
I wish to acknowledge Senator Marie-Louise O'Donnell's acknowledgment of a spirit of co-operation on this Bill. It is important legislation and is doing much important stuff. The Government has worked extensively with the Bill's sponsors and I believe its underlying values and principles have been respected here. This has been supported and welcomed in both Houses. I also acknowledge Deputy O'Callaghan's initial proposing of the Bill, which the Government has taken on and on which it has worked very hard to ensure it is robust, will work and will be substantial.
Senator Craughwell referred to a case from some years ago. I am familiar with it. One person has served 40 years behind bars and the other has since died.
One could argue that the system, the parole system, works as the Senator indicated. The perpetrator is not free and has served 40 years. I want to put that on the record in case anyone thinks that they were released earlier. I am sure the Senator will acknowledge that.
I thank Senator Bacik for pointing out all the careful and expert consideration that has gone into developing the Bill. The placing of the parole board on a statutory footing has been widely recommended, including by the Law Reform Commission.
Senator Ruane made a very good point about keeping the parole board as non-adversarial as possible. The broad support for the Bill shows we are all trying to achieve the same thing, namely, to give the prisoners with the longest sentences some incentive to rehabilitate and work towards a day when they can be released safely to serve the rest of their sentence in the community. That is important. Senator Mullen spoke of an eye for an eye, it was kind of Old Testament stuff but the New Testament talks a lot about mercy and forgiveness, which is also important. One Senator did mention mercy and forgiveness last week.
We are not really dealing with sentencing in the Bill, and perhaps some of the Senators' points can be explored further in the context of Senator Marie-Louise O'Donnell's other Bill, which is on Second Stage before this House. The other Bill is not dead, it is very much alive. Parole is a separate matter, although undoubtedly it is related.
Section 24 sets out who is eligible for parole. Currently, and in the Bill as originally introduced, parole is available to life-sentence prisoners and those serving sentences of eight years or more. The Bill was amended in the Dáil so that parole will, at least initially, only be available to life-sentence prisoners, and only after serving a period of 12 years rather than seven, which is a big change. The new eligibility criteria will apply to prisoners whether they were sentenced before or after the Act comes into force, and the Minister can extend the eligibility by regulation to prisoners serving sentences greater than eight years, having regard to various criteria set out in the section.
The Minister is acutely aware of the genuine concerns which underlie the proposal in the Senator’s amendment. The Senator’s Private Members' Bill was discussed here last week on Second Stage. I did not have an opportunity to speak, given the time constraints that the House was operating under at the time. I look forward to that discussion continuing when the debate resumes.
However, I do not believe the Parole Bill is the place to deal with this specific measure, which is really a matter of sentencing policy. Having said that, the Parole Bill itself contains very significant measures in relation to the lengths of sentences served by prisoners before being eligible for parole. The concerns of victims and their families are taken very seriously and were to the forefront of minds when the Bill was being developed and worked on in the Department.They are part of the fundamental underlying rationale for the Bill, which provides for the first time that a prisoner with a life sentence will become eligible for parole after that prisoner has served 12 years of a life sentence. When a prisoner is serving multiple consecutive sentences, he or she must complete any fixed-term sentence before the 12-year sentence requirement even starts. In these, thankfully, rare and terrible circumstances, the person would not be eligible to be considered for many more than 12 years. If a person has two consecutive sentences, he or she serves the first one and then the life one kicks in. It is 12 years after that parole is considered, which is a major change. Senator Craughwell mentioned a case, and that will apply in other such cases.
The Bill does not contain anything that would prevent the board from taking into account any judicial decision or recommendation on sentencing. It does the opposite in that it specifically lists the remarks of the judge who is sentencing as one of the matters to which the board shall have regard when making its assessment. That is another move in the direction of Senator Marie-Louise O'Donnell's amendment. Ultimately, the Bill is designed to deal with parole, which is a particular type of conditional early release; it is not designed to deal with sentencing except to ensure that parole does not interfere with minimum terms provided for elsewhere in law.
I remind the House about some of the measures that the Government is taking with regard to sentencing policy. Senator Bacik mentioned the Judicial Council Bill, which provides for the drawing up of sentencing guidelines by the Judiciary, which has been long called for. The type of measure that the Senator wishes to insert here is, I believe, a change to sentencing policy. The Senator introduced a Bill on a similar theme in 2017 and at that time, the then Minister, former Deputy Frances Fitzgerald, said that such a proposal would benefit from consultation with members of the Judiciary and other experts. I am not sure whether these consultations have happened. Perhaps they were undertaken in preparation for the Senator's 2019 Bill. If so, I would be interested to hear from her about the outcomes when the debate on the other Bill resumes. Has she had an opportunity to talk to judges and other experts in the court, and what have they said? I believe that this type of change deserves its own space and own debate. Nothing in the Bill before us precludes that.
While the Bill can complement and sit alongside sentencing reform, the sentencing measures themselves belong elsewhere and I will not support the amendment for that reason. Senator O'Donnell has said that her amendment applies only to life sentences and murder, which she stressed strongly, more than once. I point out that the amendment as drafted does not state this anywhere. This Bill greatly enhances the participation of victims and provides for both legal aid and legal representation for victims but the amendment does not mention anything about murder. That means it could be giving the judges that power with regard to any sentence. We have to be very careful when drafting legislation. It has to be focused and specific, and we have to be careful about unintended consequences.
I indicated on Second Stage that I would address some of the points raised. Senator McDowell mentioned sections 24(1)(b), 24(3) and 24(4)(d). These subsections deal with what happens in the event that the Minister extends the eligibility criteria, by regulation, to cover prisoners serving fixed-term sentences. Sections 24(1)(b) and 24(3) provide that the regulations may set out the length of term of sentence and the portion of that term that must have been served before the prisoner is eligible for parole. Senator McDowell is correct in that it does not provide for different types of offences to be treated differently for eligibility purposes. For example, a prisoner serving a 12-year sentence for assault would be treated similarly to a prisoner serving the same length of sentence for burglary when deciding whether they are eligible. The decision here is only whether they can apply to be considered. The nature and gravity of the offence is something that will be taken into account by the Parole Board in reaching its decision and the Bill provides for that in section 27.
The purpose of section 24(4)(d) is to require the Minister, in making regulations, to take account of the need for people serving different lengths of sentences to be treated fairly when compared to each other and to those serving life sentences. The regulations should not make it more advantageous, for example, to be serving a life sentence than a sentence of 20 years. The regulations must try to set the eligibility criteria so that those sentenced to longer terms do not become eligible before those serving shorter terms. This is the intention here. It is worded in drafting language, but its purpose is to ensure fairness insofar as it is possible.
That is all I have to say on this at this time. I made the main point, which is that another Bill is before the House that deals specifically with Senator Marie-Louise O'Donnell's amendments. This is a parole Bill, not a sentencing Bill. The amendment as drafted is quite loose in some ways so we are not in a position to support it.
I thank the Minister of State for his excellent explanation. I learned a long time ago that if one wants something to change or to get it done, one has to keep at it. Members know this as politicians. I have learned this in the House and have tried in every way possible for the past three years to highlight the victims within the law and what happens to them. I know that many changes have been made and I would like a final change to be made with regard to murder and what happens to people who ruin families and lives by wilfully taking away the only thing a person has, his or her life. I have to try in every way possible to keep people's hope and way forward alive, even though it may have been fatally taken from them. That is why I have tried to introduce this legislation in a thousand different ways. I take on board exactly what the Minister of State said, that this is a parole Bill, but there is a sentencing structure within it. I accept that, and I accept this as a fine Bill. It would stop me from coming in under the floorboards in trying to get justice-----
-----for people who have influenced me greatly. I am not just influenced by AdVIC but by the society in which we are becoming very violent. We are entertained by violence and communicate through violence wrongly. We are trying in the best way that we can, starting with young people in education, and in 1,000 different ways, to look at who we are. We are not the monkey shaved; we are civilised human beings. I also believe in mercy and forgiveness. I believe in all of those things but I am trying to articulate this on behalf of victims of serious crime who have been traumatised for the rest of their lives because of what was done to them wilfully by others. I take on board and thank the Minister of State for everything he has said.
The Senator spoke about society getting more violent. We need to look at the underlying causes of that. The Senator mentioned earlier that she works in disadvantaged areas. Many people who are living in disadvantaged areas are not violent and they are not criminals by any means. I am not suggesting that the Senator suggested that.
People from the most well-off areas have committed the most heinous crimes as well. We have to see why it is becoming so violent. Somebody said last week that society is almost immune to violence and just asks where today's murder happened. In the past, it was a rare event and it was front page news for a week. Why is this happening? Much research needs to be and is being done on this. I am working on a new justice strategy, which has to examine intervening very early with young people and supporting them to make sure that they do not become victims to criminality and anti-social behaviour. Education at an early age, keeping people in school and education, youth work, youth supports and so on are of key importance in prevention and intervention. Keeping people safe is also involved. There are myriad matters, not just one aspect. I acknowledge that the Senator said that because it struck a chord with me as something that I feel strongly about.
I did not mean at all that people from disadvantaged areas are criminals. It is a fact that many of our prisoners would not have had the thousands of different advantages that others have.If one looks at lots of the research in the area that is what I was speaking about and the meaningless of that. I will not call for a vote on this.
Amendment No. 4 proposes to delete the provision in section 26 of the Bill that says the parole board can only consider an application for parole once the applicant officially becomes eligible. This process can be long and arduous and there may be resource implications as it gets up and running. We can speed up this process for it to run as quickly and efficiently as possible for the benefit of applicants and for the board. I do not see why a board could not adjudicate on application before the applicant becomes officially eligible, and then allow the decision to become formal once eligibility was reached. The amendment would remove an unnecessary administrative barrier to the board deciding on applications that were already right in front of it since the Bill already allows an applicant to apply before his or her parole is up. This would simply allow the process to move quicker and if an application is successful, the applicant would avail of parole sooner and for an unsuccessful application the person could go back to working on the reapplication sooner. I urge the Minister of State to accept this amendment.
I wish to speak in support of this amendment. I have already spoken about my issue with lengthening the time before a person becomes eligible for parole from seven years, which is the current practice, to 12 years. I am concerned that this will reduce the potential for rehabilitation of individuals. As the Irish Penal Reform Trust has pointed out to us, the parole process does take some time. Engagement by prisoners with services and treatments often is strengthened once the first parole is scheduled and the first parole review is generally only the beginning of the review process. If we only schedule the first parole review at 12 years, it will prolong the period before a person may engage sufficiently with rehabilitation. It also reduces the capacity for rehabilitation and reintegration into society. For a number of reasons it would be better to have more flexibility. This is what Senator Ruane's amendment seeks to do. It proposes to delete subsection (4) from section 26.
It seems particularly harsh in the case of children serving sentences for life imprisonment when release on parole is only considered at 12 years, even if he or she has made applications prior to the 12 years. The Minister has not engaged with me on this although I have raised it a number of times. I have combed through the Bill to see if there is any reference to children in it. The only reference I can see is in section 13(2)(b), which refers to prisons or children detention schools. Clearly the Bill applies to children in that the persons applying for parole can be children. This is envisaged in section 13. The 12 years is a lengthy period and the provision in section 26(4) that states "the Board shall not consider the person’s release on parole prior to the date on which he or she becomes so eligible" just prolongs the period before which there can be no consideration of an application for parole. I believe it would be better to have a little more flexibility built in.
On that last point, the period that a child sentenced to life imprisonment spends in a child detention centre does count in determining when they are eligible, but they cannot apply for parole while still a minor. There are other provisions in law that deal with the release of children. I hope this answers the point made by Senator Bacik.
With regard to the proposed amendment No. 4, section 26 provides that the board will write to the prisoner telling the prisoner when he or she will be eligible for parole and asking whether he or she wishes to be considered. That is the first step. The prisoner's written confirmation that he or she wishes to be considered is the application for parole. The parole board will, whenever possible, give the prisoner six months' advance notice of becoming eligible. The amendment proposes to delete section 26(4) that says the board shall not consider the person’s release on parole prior to the date on which he or she becomes so eligible. The Senator's amendment would have the effect of allowing prisoners to be considered by the board before they are actually eligible. I believe the existing wording is very clear and reflects precisely what is intended in raising the point at which a person becomes eligible for parole to 12 years. The board will have written to the prisoner six months in advance of the eligibility date and the prisoner can use this time to prepare his or her case with the assistance of his or her legal representative. The board can consider the matter once the prisoner has fulfilled the eligibility requirements, which I believe are clear and reasonable. For that reason I am not in a position to support the amendment.
Catherine Ardagh, Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Lorraine Clifford Lee, Martin Conway, Mark Daly, Paul Daly, Frank Feighan, Robbie Gallagher, Anthony Lawlor, Tim Lombard, Ian Marshall, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly, Neale Richmond.
I move amendment No. 5:
In page 29, lines 28 and 29. to delete all words from and including "and" in line 28 down to and including line 29.
The amendment seeks to delete the provision that states that where an applicant has been unsuccessful and the Parole Board has written to the Irish Prison Service advising it on how the applicant's sentence could be better managed to produce a successful application for parole, the recommendations are explicitly non-binding. There is no point in the Parole Board making such recommendations if the Prison Service is given an obvious and clear excuse, explicit in the Bill, to ignore the recommendations. If we want the system to support rehabilitation and fairness and to promote access to parole, recommendations of this kind must not be so clearly weakened by a line in the Bill which states, in black and white, that they shall not be binding.
I hope the Minister of State will consider the removal of the provision. I chose not to insert the phrase "should be binding", giving the resources and the ability of the Prison Service to ensure that a person will be able to meet all the recommendations. Instead, I seek to remove the line that includes the phrase "shall not be binding" in order that it will give some more direction and need for the Prison Service to act on some of the recommendations. As drafted, the Bill will undermine what we are trying to achieve.
I understand the underlying rationale of and good intention behind the amendment. Nevertheless, I will point out a few aspects and we might have a discussion about it thereafter. The section deals with the refusal of parole. A decision to refuse must be in writing and include reasons and a date not more than two years later than when he or she will become eligible to be reconsidered for parole. When parole is refused, the board can make recommendations to the Prison Service in respect of sentence management that will help the prisoner prepare for his or her next application. This is done by the current non-statutory board. The board might recommend, for example, measures that could further the prisoner's rehabilitation, such as the prisoner undergoing a treatment programme in prison, being granted short periods of release, or spending time in an open prison to help him or her to acclimatise generally and gradually to new freedoms and see how he or she copes. In the Bill as drafted, the board will retain this function, which will not change, and the recommendations are not binding on the Prison Service.
The amendment seeks to delete section 30(3)(b) and make the recommendations binding-----
There is an ambiguity in that regard. It is important that legislation be certain. In the Minister's view, the management of prisoners is, and must remain, a matter for the governor of the prison and the Prison Service., although the prison governor will always take seriously the recommendations of the Parole Board. We must allow for circumstances where, through no fault of the prisoner or the prison, it might not be possible to implement the recommendations of the Parole Board. For example, the board may make a recommendation that a prisoner move to an open prison but it could transpire that the open prison is located far from the prisoner's family. It would not be practicable or desirable, therefore, for him or her to make such a move. Similarly, a recommendation that a prisoner attend a course or participate in treatment could turn out to be unsuitable or unhelpful. Such decisions are dynamic and must take account of circumstances on the ground and day-to-day realities.
The amendment would take the power to make decisions about day-to-day management of certain prisoners out of the hands of the prison governor, who deals with the consequences of those decisions. Ultimately, the governor and the Prison Service are best placed to make the final decisions on such matters. It is not the intention or practice of the Prison Service to ignore recommendations of the Parole Board. The governors and the Prison Service are anxious to assist and support prisoners to rehabilitate. While it is in their interest to do so, it is also their professional role and, in many instances, personal ambition. They are the people dealing with sentence management day to day. The recommendations can be recommendations only and the Bill needs to provide clarity that this is the case. While I understand the Senator's intention, I ask that she withdraw the amendment, which I am not in a position to support.
I return to a point I raised earlier that relates to a number of sections. I am grateful to my colleague, Tony McGillicuddy, BL, for raising the matter with me. There seems to be a discrepancy in the wording of the sections, including in that of the section before us, about whether notifications are to be made to the parolee or to his or her representative. It arises in section 31(6), which states the board is to provide a copy of the decision on varying the parole order to the parolee, while in section 31(2), an application to vary may be made by or on behalf of the parolee. That is in contrast to section 26, which seems to contain no provision for the initial application for parole to be made on behalf of the prisoner. Will the Minister of State clarify whether the absence of the words "on behalf of" in section 26 means that the application must be made by the person, particularly in view of the fact that, under section 31, the application to vary may be made by or on behalf of the parolee? It seems to be an odd anomaly.Then, in section 31(6), why is the copy of the decision sent only to the parolee, even though the application to vary may be made on their behalf? Similar anomalies apply also to the victim representatives. My colleague, Deputy Sherlock, raised the issue of notifications to the victim's representative or family of decisions made and I am glad to see that notifications are provided for throughout the Bill, including in section 31, where a parole order is varied. It is again unclear as to whether submissions must be made by the victim or the victim's family or by their legal representative. There is a slight difference of language between where applications may be made on behalf of a parolee or victim or where they must be made by the victim or parolee themselves. I seek a little clarity on that from the Minister of State.
Section 31 deals with the variation of a parole order. This section provides that the board can vary a parole order of its own motion or by an application by the parolee, the Probation Service, the Prison Service, An Garda Síochána, the Minister or any person that the board considers appropriate. A variation will generally be to the conditions attaching to a parole order but it can also be to the release date. For example, if a prison governor feels that the prisoner needs more time to prepare for full release, the decision to vary a parole order must be in writing and give reasons for the decision. It must also specify the date when the variation comes into effect. The decision will not contain any information about the victim unless this is necessary. A copy of the decision on variation must be provided to the parolee, the Probation Service, the Prison Service, and An Garda Síochána. The Minister must also be notified. The victim must be notified in writing of the decision and of any variation of a decision relevant to them and the effective date of the variation, unless they wish otherwise.
The initial application is simply a written confirmation that they wish to be considered. Their submission, which contains all the details, can be made on their behalf.
I wish to reiterate the support of the Minister, Deputy Flanagan, and that of the Government for this Private Members' Parole Bill, which seeks to establish an independent parole board on a statutory footing and sets out the process to be followed by the board in making its decision. The Government decided in April 2017 to support the Bill and has worked extensively with Deputy O'Callaghan and the Office of the Parliamentary Counsel to develop amendments to the Bill. I was very pleased to see such broad support in the Houses and would like to acknowledge this spirit of co-operation and genuine understanding here in this House on these issues, which we all agree has lent itself to a very positive and engaging debate today. It is true to say that the principal ideas and values underlying the original Bill introduced by Deputy O'Callaghan on 24 May 2016 have remained intact. I congratulate the Deputy on what is very important and comprehensive legislation.
As Members are aware, the Minister for Justice and Equality currently makes the final decision on parole, which in legal terms at present is a form of renewable temporary release, taking account of recommendations from the non-statutory parole board. Under this Bill the final decision on release will be a matter for the statutory parole board and the release will be on parole proper, a form of conditional release rather than temporary release. The criteria used in making the decision will be clear and open and the factors to be taken into account will be set out in statute. The Bill also raises the eligibility criteria for being considered for the first time for parole to those who served 12 years of a life sentence rather than the current seven years, which the Minister believes is a necessary and proportionate measure to balance rights of these long-sentence prisoners with the need to ensure that the issue of early release is not raised to trouble further the hearts and minds of victims and their families at a point where there is no real prospect of release.
The sentence management facility from which prisoners currently benefit, whereby they are advised and encouraged to take measures themselves to rehabilitate and prepare for the day when they may finally be able to move outside the prison and serve the remainder of their sentence in the community, provided they are of good conduct and do not breach any conditions, will, for prisoners not eligible for parole under the new system, continue to be managed by the Irish Prison Service, which is expert in this area and well placed to put these measures in place in ways that are tailored to the individual circumstances of each sentenced person.
In summary, this is a good Bill. I support its intentions and together with my colleagues here today, I would like to see it enacted as soon as possible. I again thank colleagues in the Seanad for the excellent debate here today, with very interesting questions raised and points made, some robustly and strongly, and that is to be expected when people feel something passionately. I look forward to the Bill's enactment.
I welcome the passage of the Parole Bill, which is long overdue, where we will be placing the parole board and process on a statutory framework and footing. It is in keeping with my party's long-standing policy and with many recommendations from different bodies, including the Joint Committee on Justice and Equality. I am grateful to the Minister of State, his officials and for the help and support others, including the Irish Penal Reform Trust.
The main purpose of parole is to increase community safety and it is in all of our interests that we have a structured system for release of prisoners who have been serving long-term sentences of imprisonment to ensure their rehabilitation and reintegration back into the community. This is in the interests of victims and of all us as a society. I look forward to the speedy implementation of the Bill and again thank colleagues and the Minister of State.
I too welcome the passage of this Bill, which pertains to a very important aspect of our criminal justice system. It will have profound effects for the victims and perpetrators of crime in society as a whole. I pay tribute to the Minister of State, to his Department and officials, and to thank colleagues here in this House for supporting the Bill, which was put forward by Deputy O'Callaghan in the Dáil. It is a very good day that this is now passed and I thank everybody for their support.
I too want to welcome the passing of the Parole Bill. It is important, proper and appropriate that the parole board would be set up on a statutory basis and enshrined in primary legislation. This is another example of how Private Members' Bills can and do work in this House. When a Member such as Deputy O'Callaghan puts forward a Private Members' Bill, where there is significant engagement from all sides in both Houses and where the Minister, his Department and officials are prepared to work in a positive way to ensure the legislation is brought forward in the best and strongest possible way, the only people who will benefit are the citizens, namely, the people we are elected here to represent. This Bill brings the process of parole into the 21st century and the debate has been interesting and invigorating. The passion that has been shown by people in this House for the victims of crime and trying to come up with restorative ways of reintegrating people into society when they have had their sentences fulfilled is something that would give one hope. It is the culmination of a lot of work by a lot of stakeholders in this country, and by the Joint Committee on Justice and Equality, of which Minister of State, Deputy Stanton, was Chairman and of which both Senator Bacik and myself were also privileged to be members.
Significant work was done by all the stakeholders and all sides in this House. It is a good day for politics and for the victims of crime as well.
My apologies for coming in again but it would be very remiss of me not to acknowledge the huge hard work done by the officials in my Department on this Bill and the professionalism and dedication they bring to their work, as well as the people in the Office of the Attorney General who are obviously indispensable. I wish to acknowledge that and apologise for not having said it earlier. They are so good at their work that they almost go unnoticed in the background but they are indispensable and I really value their work and efforts. I also wish to thank the officials in this House who facilitated the debate.