Amendments Nos. 1 and 4 form a composite proposal and amendments Nos. 2 and 5 form an alternative composite proposal. I suggest, therefore, that we discuss amendments Nos. 1, 2, 4 and 5 together.
Transfer of Sentenced Persons Bill, 1995: Report and Final Stages.
I move amendments No. 1:
In page 3, line 26, after "applies" to insert "or a state or territory outside the State designated by the Minister for Foreign Affairs under section 2 of this Act".
We had a detailed and helpful discussion at the Select Committee on Legislation and Security on the Committee Stage of this Bill. It highlighted the benefit of the committee system in that it allows a real debate to take place on legislation. I undertook to consider suggestions and amendments put forward by Members and I am pleased that I was able to accept a number of them. The fact that I tabled nine amendments on Report Stage is a measure of the constructiveness of the debate on Committee Stage and I thank Members who participated.
The effect of amendments Nos. 1 and 5 is to make it possible for a transfer to take place between this State and a State that is not a party to the convention. As matters stand the convention may be acceded to by any interested States, not necessarily members of the Council of Europe. Five States that are not members of the Council of Europe, including the United States and Canada, are now contracting parties to the convention. Some States, however, may be unable to make a commitment to signing the convention on a multilateral basis but may be interested in signing on a bilateral basis. These amendments would give such a bilateral arrangement binding legal effect so that an Irish national serving a sentence in a country which is not party to the convention but is party to a bilateral arrangement could apply for repatriation to an Irish prison. Foreign nationals serving sentences here will also be able to apply for transfer to their countries if they are party to a bilateral arrangement.
The amendments differ somewhat from those Deputy O'Donoghue tabled in that they make it clear it will be for the Minister for Foreign Affairs rather than the Minister for Justice to negotiate such bilateral agreements. The Minister for Foreign Affairs will be able to designate the third country concerned after which all of the provisions of the Bill will apply. The application for transfer and the transfer will be treated exactly as if the country was a party to the convention in a multilateral way. In other words, the three-way consent will have to exist. The criteria for transfer and all the other conditions that will apply will be the same.
Apart from some slight differences my amendments meet the requests made by Deputy O'Donoghue and others on Committee Stage and supported by Deputies Woods and Browne in that they will fill a lacuna in the Bill. I commend them to the House.
I warmly welcome the Minister's amendments and thank her for having taken our comments on board. I can well understand why the Minister would wish it to be the Minister for Foreign Affairs who would designate a non-convention State since his Department would be au fait with such matters. Some States which may never be convention States might have a good relationship with this State and be willing to enter into an arrangement whereby prisoners could be transferred. The number of Irish nationals in such States is relatively small. They are very far from home and may be incarcerated in appalling prison conditions suffering tremendous hardship.
It is extremely important that the provisions of this Bill be extended to that small minority whom I am sure will welcome the opportunities provided by these amendments. I have no difficulty in withdrawing my amendments and accepting the Minister's admirable ones along the same lines.
Amendment agreed to.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 3, line 30, after "deprivation" to insert "or restriction".
In some foreign countries, penalties or sanctions are imposed which do not amount to imprisonment but to a restriction on liberty. I have in mind house arrest sentences imposed in a small number of Asian countries where a sentenced person is sent to a remote place and required to reside there. Within that context, while the deprivation of liberty does not amount to imprisonment, the restriction imposed on the individual is very severe. I suggest that the Minister take this amendment on board.
For the reasons explained on Committee Stage I cannot go along with the amendment. As Deputy O'Donoghue said, its purpose is to extend the provisions of the Act to alternative penalties imposed in some countries, such as weekend or evening imprisonment. The definition of "sentence" used in the Bill is identical to that in the Council of Europe Convention on the Transfer of Sentenced Persons. Article 1 under Definitions which reads as follows:
For the purpose of this Convention:
(a) "sentence" means any punishment or measure involving deprivation of liberty ordered by a court for a limited or unlimited period of time on account of a criminal offence.
It is clear that the definition of "sentence" in the convention — to which we are giving legislative effect — clearly is meant to apply only to punishments or measures which involve "deprivation of liberty" not curtailment or any other restriction on liberty. To introduce the concept of "restrictions" would go beyond the terms of the relevant convention clearly aimed at those who are in custody. The same humanitarian considerations could not be applied to those whose liberty is restricted. Obviously, the most severe restriction on liberty is the deprivation of liberty and incarceration.
It can be argued that any non-monetary sanction imposed by a court, such as probation or community service, amounts to a restriction of liberty. It would be going beyond the scope of the convention for us to have an obligation to people in those categories. If we provided for that we would expect that if we imposed a similar type of restrictive sentence on a non-national who wanted to return to his or her country, such person would seek the same privilege if and when returned to his or her country.
The provisions of this Bill are based on the convention and we should not go beyond its terms in the manner requested by Deputy O'Donoghue. Therefore, I am afraid I cannot accept his amendment.
I am disappointed the Minister is of the opinion that my amendment goes beyond the scope of the relevant convention but, in the circumstances, I withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 4, between lines 8 and 9, to insert the following:
2.—Where the State is a party to international arrangements providing for the transfer between the State and a state or territory that is not a party to the Convention the Minister for Foreign Affairs may designate that state or territory to be a Convention state for the purposes of this Act.
Amendment agreed to.
We come to amendment No. 6 in the name of the Minister. I observe that amendments Nos. 7 and 11 are alternatives and I suggest that all three be discussed together by agreement. Is that satisfactory? Agreed.
I move amendment No. 6:
In page 4, between lines 8 and 9, to insert the following:
3.—A person on whom a sentence has been imposed in the State and to whom the provisions of this Act concerning a transfer out of the State may apply shall be informed, in a language which he or she understands, as soon as may be after the commencement of the sentence, of the substance of this Act.
In the course of our debate on Committee Stage Deputies O'Donoghue and O'Donnell tabled amendments to provide that foreign nationals serving sentences here should be informed of their right to apply for a transfer to their native country under the provisions of this Bill. With or without such a provision, once the convention is ratified, there will be an obligation to inform any person to whom the provisions of the Bill may apply of its substance. That obligation is laid down in Article 4.1 of the convention. I also indicated I had no problem in strengthening the Bill by enshrining therein some sections of the convention. Therefore, I have no difficulty in including the obligation of furnishing information to a non-national who would require to know the substantive provisions of the Bill once passed.
The wording of my amendment adheres closely to that of Article 4.1 of the convention and, in effect, provides that the person should be informed as quickly as possible of the substance of the convention, on which basis I commend it to the House.
Deputy O'Donoghue's amendment requires that the prisoner should be informed at the commencement of his or her sentence while Deputy O'Donnell's requires that it be done within two weeks of the imposition of such sentence whereas mine proposes it be done "as soon as may be" meaning it must be done as quickly as possible, representing a compromise between both Deputies' amendments. My slightly more flexible wording will ensure that the information is properly furnished, with advice. It may not perhaps be necessary to immediately furnish somebody information, particularly a non-national who may have difficulty in understanding its full import, even though it may be furnished in their native language so that the stipulation "as soon as may be after the commencement of the sentence" affords prison staff who will have to furnish such information greater flexibility to have on hand somebody who can advise the prisoner concerned.
I commend my amendment as a compromise between the two Opposition ones.
I welcome the fact that the Minister recognised the need to stitch into the legislation the obligation to provide information. As said on earlier Stages, the Bill does not give a right to a person to be transferred; it gives them the right to apply for a transfer. It is important that people are made aware of their right to apply and the procedures that will follow such an application. People have the right to apply to the Minister and, following that, an Executive decision will be made.
Many Deputies, including myself, were concerned on Committee Stage that any discretionary powers given to the Minister should have corresponding safeguards as to its exercise. Following a wide-ranging survey of how the State interfaces with the individual, a report by the Ombudsman concluded that information should be much more freely provided to citizens in relation to their rights. We do not have a good record in this regard although the Minister stated that the convention places an obligation on member states to make people aware of their rights. I welcome the fact that the Minister recognised this and I am withdrawing my amendment.
It is desirable that prisoners are informed of the existence of the Act and the convention. It is conceivable that some prisoners may not know of the provisions of the Act and the minutiae of the legislation. I also welcome the fact that the Minister will now provide for the Department to advise prisoners of their right to a transfer out of the State and I hope that similar legislation will be introduced in other convention countries. This is a humane and important provision. In that context, it would be remiss of me not to extend my warmest congratulations and the congratulations of this House to the Irish Commission for Prisoners Overseas, which has campaigned for the introduction of this legislation and undertaken much work to inform prisoners about it.
I thank the Deputies for agreeing to accept the amendment and for their input to this part of the debate. While these provisions are laid down in the convention, which will become applicable when the Bill is enacted, we must ensure there is not any doubt in the minds of prisoners as to their entitlements under the Bill.
Deputy O'Donoghue referred to the Irish Commission for Prisoners Overseas. That organisation has been extremely helpful, not just to me but to Opposition Deputies. I am sure they received the volume of amendments prepared by the commission which were based on its many years of experience in this area. I formally accepted the commission's own draft Bill which was very useful to us in the preparation of this Bill.
Amendment agreed to.
Amendment No. 7 not moved.
Amendment No. 8 is in the name of Deputy O'Donoghue. I observe that amendments Nos. 10, 13 and 14 are related and I suggest we discuss amendments Nos. 8, 10, 13 and 14 together, if that is satisfactory.
I move amendment No. 8:
In page 4, to delete lines 20 to 22 and substitute the following:
"(3) Subject to subsection (4) of this section, the Minister shall grant an application under subsection (1) of this section if the Minister is satisfied that the following requirements have been fulfilled, save only where there are substantial grounds for believing that the sentenced person concerned may be in danger of being subjected to torture, inhumane or degrading treatment if transferred, or where the Minister is otherwise satisfied that there are good and substantial reasons for believing that it would not be in the interests of justice or the welfare of the sentenced person to grant such an application.".
This amendment would give a foreign national imprisoned here, who satisfies the criteria in the legislation, a right to transfer to his or her home country provided that the native state agrees to accept the prisoner. I know the Minister will say that the legislation is based on the concept of consent; the consent of the sentencing state, the receiving state and the prisoner. The concept of consent would not be undermined by allowing a person imprisoned here the right to transfer out of the State. This House can legislate to provide for such circumstances and the concept of consent would continue to be central to any such legislation because the receiving state would have to consent to the transfer. The Minister should take all reasonable steps with due expedition to request the administering state to agree to the transfer in the event of this amendment being made to the Bill. That is the reason I tabled amendment No. 10.
The Minister may well argue that this would eliminate her discretion in relation to an application by a prisoner, and I accept that, but it would give a right of transfer to an individual to return to the receiving state. I understand the Minister's difficulty with the concept of discretion being eliminated in so far as she is concerned but what is her reason for denying a prisoner, who is a foreign national, the right to transfer out of this jurisdiction assuming, of course, that the receiving state agrees to accept the prisoner?
It will come as no surprise to Deputy O'Donoghue, having listened to my views on Second and Committee Stages, that I am not in a position to accept these amendments because they would substantially remove the discretion available to me, as Minister, to refuse to consent to the transfer of a prisoner from this jurisdiction. A central feature of this convention is that all three parties, the sentencing state, the receiving state and the prisoner, must agree to the transfer. That three way consent must be reflected in our legislation and this legislation is implementing the convention.
I and any Minister for Justice, would be generally anxious to facilitate the transfer of foreign nationals back to their own country in the same way as we are anxious to see a facility for Irish people serving sentences far away from their families to come back and serve the remainder of their sentences here. There are humanitarian considerations but also the consideration — let us be frank about it — that if foreign nationals apply for a transfer out of this jurisdiction it frees up a place in our prisons to allow for better consideration of applications coming the other way. Obviously I would be disposed in a positive way to having that kind of free space for an Irish applicant coming from somewhere else. However, we cannot rule out the possibility, rare though it might be, that other considerations that would, perhaps, outweigh humanitarian considerations would have to be taken into account.
For the first time in the history of this State this measure will allow for the exchange of prisoners between one jurisdiction and another, and we have no practical experience of how this will work. For that reason and others we must maintain the freedom and latitude in the Bill, in keeping with the Convention. I do not want to create a situation where, in some unforeseen circumstance that I cannot anticipate, a Minister's hands might be tied and he or she be obliged to grant a transfer when there are very good reasons to refuse one. We do not have any examples to give but, for the sake of argument, let us say that a non-national serving a sentence here for smuggling drugs into this country is transferred to his or her own country; the penal system in that country might deal more leniently with drug smuggling and the Convention may have been implemented in a different way from the way we are implementing it. There are two methods of implementing the Convention: continued enforcement of a sentence or what amounts to a retrial in the country to which the prisoner is transferred. We are implementing it by way of continued enforcement of sentence. If the receiving country operates a different regime, it is possible that somebody who had smuggled large qualities of drugs into this country and caused great damage might, on being transferred back to their own country, be treated more leniently. It would not be suitable for us to give positive consideration to an application for a transfer in such a case. People who have been damaged by the smuggling of drugs into this country would like to be assured that the sentence as imposed by the sentencing country will be applied. That is an example that might arise but, having no experience of the working of this Convention, we cannot fully envisage conditions that might arise.
Section 2 allows us to comply with our obligations under the Convention, and it would not be prudent to go beyond that. I do not believe there will be any great difficulty in consenting to transfer of non-nationals back to their own country. We would have to be cognisant of the fact, as mentioned in Deputy O'Donoghue's motion, that one would not return somebody to a country where it is known they would be subjected to torture, inhuman or degrading treatment or where their lives would be in danger. The acceptance of Deputy O'Donoghue's amendment would give rise to unforeseen and undesirable difficulties.
The effects of amendments Nos. 13 and 14 would be to oblige the Minister, where a transfer has been consented to, to issue a warrant within 14 days. I appreciate the thinking behind these amendments, but there would be no practical advantage in incorporating them, and doing so might give rise to practical difficulties and might even work against the transfer of prisoners if the examination of their application for transfer required more than 14 days. If I were caught by the 14-day rule, I might be obliged to refuse a transfer. In particular, the state to which the prisoner is being transferred may not be in a position to receive that person straight away. In those circumstances it would be premature for me to issue a warrant because there would be a gap between the time of their leaving our jurisdiction and getting a prison place in their own country. I assure the House that there will be no undue delay on our part in arranging for transfers. For the reasons I have given, I cannot accept this amendment.
In respect of signatories to the Convention to date, their laws in relation to drug smuggling are, if anything hasher than ours. The philosophy behind the amendment is to exercise some moral authority over other states in relation to the transfer of Irish prisoners because I fear some states, for certain reasons which may not be valid, may not wish to allow certain prisoners into this State. While expressing my disappointment that the Minister was not in a position to take it on board, I will not press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 4, line 38, after "consents" to insert "in writing".
As amendments No. 9 is in the name of both myself and Deputy O'Donoghue, I have no doubt that it will recieve immediate and widespread support. On Committee Stage Deputy O'Donoghue tabled an amendment to section 2 (3) (d) to provide that where a person consents to the transfer outside the State on a sentenced person's behalf such consent must be in writing. This is in the convention but it is a good idea to include it in the Bill. I undertook to table an additional amendment to a subsequent section, section 4 (3) (d), which would provide a corresponding requirement in respect of incoming transfers. I tabled both amendments because I was not sure whether or not Deputy O'Donoghue would be tabling an amendment on Report Stage. It is to ensure that in regard to transfer into or out of this country consent must be given in writing. It is a technical amendment which I commend to the House.
I should have adverted to the fact that amendment No. 18 is cognate and that we would discuss amendments Nos. 9 and 18 together.
I welcome the Minister's acceptance of this amendment which was designed to dispel any doubts there might be about the adequacy of the consent of the prisoner. The fact that the consent is in writing will remove any such doubts.
Amendment agreed to.
Amendments Nos. 10 and 11 not moved.
Amendments Nos. 12 and 20 in the name of Deputy O'Donoghue are related, and No. 25 is an alternative. I suggest, therefore, that we discuss amendments Nos. 12, 20 and 25 together.
I move amendment No. 12:
In page 5, between lines 13 and 14, to insert the following:
"(6) In deciding whether or not to grant the application under subsection (1) of this section, the Minister shall not discriminate between applicants on grounds of race, colour, ethnic identity, gender, marital status, age, religion, sexual orientation, medical condition, or political opinion.
(7) The Minister shall develop and publish criteria in accordance with which decisions whether or not to grant an application under section (1) of this section shall be made. In devising such criteria, the Minister shall have regard to such factors as the length of sentence that the sentenced person has remaining to serve, the circumstances of the sentenced person's family, and the sentenced person's health.
(8) Where the Minister refuses an application under subsection (1) of this section, the Minister shall furnish to the applicant within one month a written statement of the grounds for such refusal.
(9) An appeal against a refusal by the Minister of an application under subsection (1) of this section shall lie to the High Court.
(10) Where within the period of two months begining on the day of of receipt by the Minister of an application in writing from a sentenced person under subsection (1) of this section for transfer out of the State the Minister has omitted to grant or refuse to grant the application, a decision by the Minister to grant the application shall be regarded as having been made on the last day of the said period, and the Minister shall be under a duty to seek the agreement to transfer of the proposed administering state.".
There is a number of amendments contained under the umbrella of this amendment. The amendment provides that the Minister should publish criteria in regard to decisions on whether or not to grant an application for transfer of a prisioner and that in devising such criteria the Minister should have regard to such factors as "the length of sentence that the sentenced person has remaining to serve, the circumstance of the sentenced person's family and the sentenced persons's health". It is imperative that prisoners know the criteria involved in making a decision on their application for a transfer and they should be published.
The amendment serves the interests of openness and transparency. The prisoner would know where he or she stood and the public would be aware of the criteria to be followed in making a decision on an application for transfer out of this jurisdiction or, in the case of an application from an Irish prisoner in a foreign State which is a signatory to the Convention or a State designated for the purposes of the Convention by the Minister for Foreign Affairs, for transfer to this State. The amendments would ensure the Minister complies with minimum criteria in deciding on applications. The Minister indicated she would not agree to a right of transfer for a foreign national in an Irish prison and that is another reason for publishing the criteria.
The Minister stated that we do not know how the legislation will work in practice. She is not obliged to say what the criteria are or publish them immediately. She can develop and publish them at a later date in the light of the operation of the legislation. I also provide in the amendment that in deciding whether to grant an application the Minister must not discriminate between applicants on grounds of race, colour, ethnic identity, gender, marital status, age, religion, sexual orientation, medical condition or political opinion. That is desirable. I fully accept the integrity of the Minister as far as non-discrimination is concerned but it is desirable that such an amendment be accepted.
In this block of amendments I propose that where the Minister refuses an application, she will furnish a written statement of the grounds for such refusal to the applicant within one month. Any prisoner in this State whose application is refused has a right to know why it was refused. Equally an Irish prisoner in a foreign state which is a signatory to the Convention or one designated by the Minister for Foreign Affairs pursuant to this legislation is entitled to be told by the Minister for Justice the reason for refusing his or her application for transfer. That is in accordance with natural justice. A person has a right to know.
There has been much complaint recently that people cannot get information from Government Departments or State agencies. They cannot see their own files. It would contravene the spirit of the Freedom of Information Bill if the Minister were to refuse to give the grounds for refusing an application for a transfer. When the prisoner receives the grounds for refusal they could appeal to the High Court. If a prisoner is not told why the application was refused it would be difficult to mount any serious challenge in the High Court. How could a prisoner appeal if they did not know the grounds for refusing the application?
That is a fundamental and extremely important amendment. The Minister is exercising a quasi-judicial function when deciding on applications for transfers. If the Minister refuses to accept this block of amendments would it be within the power of the prisoner, whether in this or another State, to seek a judicial review of the decision in the High Court? If so, it would be extremely serious. The decision would be made in secret and the prisoner would not be told the reason for the refusal. The Minister would have no option but to outline the reasons for refusing the application for transfer. I understand her desire to keep the legislation as simple and direct as possible but we must keep in mind natural justice, the possibility of litigation, the need for openness and transparency, and we must respect the right of the individual to know.
Far too often decisions are made and no reasons are given for them. A secrecy culture has built up around certain elements of the bureaucracy in the State. For example, health boards have only recently been obliged to set out the precise reasons for the refusal of a medical card. An individual has the right to know and this amendment seeks to ensure this.
Subsection (10) of amendment No. 12 states:
Where within the period of two months beginning on the day of receipt by the Minister of an application in writing from a sentenced person under subsection (1) of this section for transfer out of the State the Minister has omitted to grant or refuse to grant the application, a decision by the Minister to grant the application shall be regarded as having been made on the last day of the said period, and the Minister shall be under a duty to seek the agreement to transfer of the proposed administering state.
In regard to an individual incarcerated in a designated state or a state which is a signatory to the Convention, subsection (11) of amendment No. 19 states:
Where within the period of two months beginning on the day of receipt by the Minister of a request under subsection (1) of this section for transfer into the State the Minister has omitted to grant or refuse to grant the request, a decision by the Minister to grant the request shall be regarded as having been made on the last day of the said period, and the Minister shall be under a duty, where necessary, to seek the agreement to transfer of the sentencing state.
These amendments seek to ensure that decisions are made without delay in the case of applications by a prisoner in this State for transfer out of the State and by a prisoner in a designated state or a state which is a signatory to the Convention for transfer into this State. These amendments are of fundamental importance in the context of an individual's right to know and from the point of view of natural justice, and I strongly believe they should form a composite statutory imperative.
We discussed these amendments in detail in the select committee. The difficulty is that amendments Nos. 12 and 20 are omnibus amendments which cover a number of issues. I said I could not accept certain elements of the amendments but readily undertook to look at other elements of them. One of the difficulties with an omnibus amendment is that one can accept some elements but not others.
I have looked again at these amendments with a view to seeing which elements can be taken on board. I have looked at the anti-discrimination clause and the proposal that the grounds for the refusal of transfers in and out of the State should be made known to the applicant. These issues are covered by my amendment No. 25, subsection (2) of which states that the Minister will, where practicable and where the interests of justice do not preclude so doing, set out the reasons for a refusal. Obviously this will be subject to security and other considerations.
At the select committee my difficulty with the anti-discrimination clause was that in considering applications for transfers I would have to make distinctions between applicants on the basis of gender, age, medical condition or other grounds which would require to be considered in the context of the practical day-to-day operation of the prison system. I was anxious to avoid a situation where the making of such distinctions could be perceived as discrimination against an applicant. Having discussed the matter with the parliamentary draftsman I have come up with the satisfactory formula in subsection (1) of amendment No. 25 which dispels the problems I outlined at the Select Committee and does not distract from the substantive point that there can be no discrimination between applicants without good reason. I am afraid that someone would regard the distinctions which have to be made on practical grounds as discrimination, and under subsection (2) of amendment No. 25 the Minister is obliged to furnish a statement specifying the reasons for the refusal of any transfer into or out of the State.
Deputy O'Donoghue's amendments seek to remove the discretionary element in the implementation of the convention. The tripartite agreement between the sentencing state, the administering state and the prisoner is the kernel of the convention. Deputy O'Donoghue is seeking to remove the discretionary element while I want to ensure that the administering Minister will have discretion.
He also proposes that if a decision is not made within two months then the application should be approved automatically. This is similar to the system whereby, a planning application is automatically approved if the county council makes a mistake and does not make a decision within two months. I do not want to impose a time limit as it may not be in the best interests of the applicants. For example, at times there may be delays in communications between the sentencing country and the state to which the prisoner wishes to be transferred and if there was a two month time limit I would have no choice but to refuse an application which might have been approved if more time was available.
On the question of an appeals system, if the Minister of the day has the right to refuse an application the system could be turned on its head by giving the prisoner the right to appeal. The Minister may decide to refuse an application if the report from the sentencing country indicates that the prisoner has, to use prison parlance, been of bad behaviour for a period. However, if he applies for a transfer some months later and the report states that his behaviour had greatly improved he has the right to have his application considered again. The refusal of an application does not deny a prisoner the right to continue to apply for a transfer, and this point must be made clear to prisoners.
Deputy O'Donoghue asked me to publish criteria under subsection (7). In section 2 a large number of criteria is listed and the prisoner will be made aware of this. It spells out, as the convention does, the conditions under which a prisoner must be considered for a transfer. The difficulty about preparing a further list of criteria would be that one could militate against a prisoner by not including some specific criteria that would apply to one or two prisoners. I have already agreed on Committee Stage to issue an annual report. That annual report will spell out clearly the criteria used. If after the first annual report, it appears possible to set out the criteria more specifically in legislative terms it will be open to the House to look again at that section. We are dealing with prisoners who have committed horrific crimes and there must be latitude to openly examine the circumstances of each. I do not want to be tied to either having to refuse an application or grant an application because some specific criteria has been laid down. I have gone as far as I can go to accept some of the amendments tabled. I am unable to accept the remainder of the amendments.
In response to the Minister's amendment I recognised on Committee Stage the thrust of the reservations put forward by Deputy O'Donoghue. What we are talking about here is administrative law, a principle of which is that any exercise of executive power of a Government Department or of a Minister should be amenable and open to scrutiny by judicial review in the High Court. Had the Minister not gone as far as she did in accepting the principal reservations Deputy O'Donoghue and I expressed on Committee Stage, people would have had to bring applications for judicial review to the High Court. It is vital in the exercise of executive power such as this that people know why decisions have been reached so far as that does not impede justice. I am pleased the Minister has accepted that, in principle, apart from circumstances where the interests of justice do not preclude doing so, a statement will be given to the person who has applied under the provisions of this legislation to be considered for a transfer. The Minister's amendment has gone a long way to address the concerns we expressed on Committee Stage.
Another exercise of a discretionary power would be the petition system which has recently come under scrutiny in the courts. It has been found that the way that discretionary power was exercised did not live up to the standards of proper administrative law. If decisions were being made by officials of the Department, indirectly by the Minister, a person could legitmately feel that natural justice had not been seen to be done in terms of exercising that power. It would be open to that person to go to the High Court and seek a judicial review of the exercise of that discretionary power by the Minister. The Bill is better because of this amendment. Without this amendment, which takes on board the concerns expressed on Committee Stage, it would have been an unfettered exercise of a discretionary power with long term implications for the person involved. It is not a right to transfer, it is only a right to apply. The Minister has accepted that the application must be treated openly in a proper way — while still retaining the discretion and all the politics that goes with the exercise of such power — and her amendment is an appropriate response to the concerns expressed on Committee Stage.
I am disappointed the Minister stated she will not agree to the publication of criteria because people should be entitled to know the background to the decision about to be made. I acknowledge that the Minister has gone some way down the road by agreeing to specify the reasons an individual is refused the transfer into or out of the State but she has not gone far enough. There should be a right of appeal to the High Court and this right of appeal should be specified in the legislation. That it is not specified in the legislation leads me to the conclusion that it may well be that an individual will have the right of judicial review in respect of the decision in any case and this is a more cumbersome procedure.
I accept the Minister has gone some of the way specifically in relation to setting out the non discriminatory provisions in a manner I advocated. The notification of the reasons for refusal is welcome also. Unfortunately the Minister has decided not to accept the other amendments which I tabled. In those circumstances the best I can do is to withdraw them but I do so with great reluctance.
I thank Deputy O'Donoghue for agreeing to withdraw his amendment. If an appeal system is introduced it may be on the basis of somebody being refused and wishing to appeal it on one of the grounds of refusal but, essentially, that is at the kernel of this convention. If a person has the right to go to court to appeal a refusal that automatically takes away the right and the discretion of the Minister to make a decision on the application. A court might decide on appeal to allow the transfer where there has been a refusal and the conditions for that transfer might not exist. One of the reasons for refusal might have been that the receiving state had made a strong case that it did not want this person returned or did not have a facility for this person. If a person was returned in those circumstances effectively he would be released from serving the remainder of his sentence. I am sure that is not what Deputy O'Donoghue has in mind but it is a possibility. Our annual report will allow us to look at the criteria issue. Giving the reasons for refusal to each applicant will clarify the criteria involved. It stands to reason, when the Minister is considering an application, that issues such as length of sentence, the health or sex of a person will be considered. What else would I take into account when considering an application? I will consider what a person is in jail for, what sentence is being served, its length and the implications of being transferred out of this country, etc.
The prisoners know what I will consider when dealing with their applications. I have seen letters they write to get temporary release. They know why they are in prison and what grounds they must present so that the Minister may consider favourably any conditions under which they are serving their sentence. I thank Deputies for their positive reactions to my amendments.
Amendment agreed to.
Amendments Nos. 13 and 14 not moved.
Amendments Nos. 15 and 27 are alternatives and may be discussed together. Is that agreed? Agreed.
I move amendment No. 15:
In page 6, line 16, after "State." to insert "A sentenced person in a Convention state may request the Minister in writing to consent to such a transfer into the State, subject to the subsequent agreement of the sentencing state.".
This amendment would allow direct approaches to the Minister for Justice from prisoners abroad. At that point I hope the Minister would, in appropriate circumstances, find herself able to assist in obtaining the agreement of the sentencing state. This is a desirable change and the Minister may have an amendment to this effect, which I would welcome.
A person in a foreign jurisdiction may find himself alone. He may apply to the sentencing state for a transfer to this State but receive an unsympathetic hearing, for reasons best known to the sentencing state. In that context he should be in a position to enlist the help and support of his native state. That is the intention behind this amendment, which I regard as desirable.
Amendment No. 27 provides that where an Irish national or person who would be regarded as such is sentenced in another state and wishes to apply for transfer to this State, that person may apply to the Minister; and if the sentencing state does not forward an application from the person concerned to the Minister, she shall be empowered to request the transfer of that person. This is to give the Minister the power to request the transfer of a prisoner held in a designated state or in a signatory state to the convention. It makes the Minister pro-active, in that she can request the transfer. This amendment is also desirable.
I am surprised this amendment was put down because we amended the Bill on Committee Stage to take on board the provisions in Deputy O'Donoghue's amendments. I moved the amendment to deal with those points and the Bill as amended in committee makes it clear that an applicant serving a sentence abroad may make an application for transfer directly to me. In the convention, it is implied that such a person applies to the sentencing state and in turn the application comes here.
This amendment to section 4 (2) provides that without prejudice to subsection (1) of that section, a request to transfer into the State to serve the sentence, or the balance of the sentence imposed in a sentencing state, may be made directly to the Minister by or on behalf of a sentenced person. The Bill as amended on Committee Stage allows a person serving a prison sentence in England or France to write directly to me instead of making an application to those authorities. With no disrespect to Deputy O'Donoghue, these two amendments are superfluous to the Bill.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 16 and 17 are alternatives and may be discussed together. Is that agreed? Agreed.
I move amendment No. 16:
In page 6, to delete lines 17 to 22 and substitute the following:
"(3) Subject to subsection (4) of this section, the Minister shall consent to a request made under subsection (1) of this section if the Minister is satisfied that the following requirements have been fulfilled:
(a) that the sentenced person concerned is, for the purpose of the Convention, regarded by the State as a national of the State. This shall include such persons, being nationals of another state who have or have developed close ties with the State such as to make it desirable for humanitarian reasons that they should serve their sentences within the State;".
The philosophy of this amendment is to allow for a flexible definition of Irish nationals for the purposes of the legislation. Some people have close ties with this country — they may not necessarily be Irish citizens but they may have family ties to this State which should, for humanitarian reasons, allow them to make a successful application for transfer into a prison in this country.
The amendment expands on the definition of a national for these purposes and provides that a national of another State will be regarded as a national of this State where the transfer of the national is considered appropriate having regard to any close ties the national has with the State. This provides that an individual in prison in this State has the same right as an Irish person in a foreign state. An individual in this State who has family ties with Great Britain but is not a citizen of that country would have the right to transfer there. This provides that the reverse will apply and extends the definition of "national" for this legislation.
Amendment No. 17 is in my name. Deputy O'Donoghue, with clever use of words, implied that the only import of his amendment is to define "national" but he also changed the word "may" to "shall". He has shown ingenuity in trying to make the discretionary powers of the Minister mandatory but it is difficult for me to accept that part of the amendment. For the reasons I gave before I cannot accept what appears to be the simple change from "may" to "shall". However, I do accept that the term "national" for the purposes of incoming transfers should be interpreted in a wide sense to include persons who have close ties with this country. My amendment takes on board the concern which was expressed on Committee Stage. As I said at that time, if the Deputies look at the definition of convention in section 1 they will see it includes the 1987 EU agreement and explains the description of nationals. It was rightly pointed out to me at that stage that very few countries are party to the 1987 convention, so it is appropriate for me to spell out clearly and explicitly what we mean by "national".
Article 3.4 of the convention gives the contracting parties the possibility at the time of ratification to define "national". The Department of Foreign Affairs, which will be responsible for the process of ratification, can make a declaration at that time to encompass the scenario of a person having close ties with this State, and if we put it into the Bill it will be even more explicit. I have no difficulty with clarifying in the Bill that a national would be defined in the wider sense as somebody regarded as having close ties with the State. For example, a member of a family who were not Irish citizens but had lived here for many years could request to be transferred to serve a sentence here because of their close family ties with the State, although they would not be nationals in the true sense.
This is a good amendment which arose out of concerns expressed on Committee Stage that there would be no equivocation on the definition of a national. I hope this amendment will receive the support of the House.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 6, line 27, after "State" to insert the following:
"and, for the purposes of this subparagraph, a national of another state shall be regarded as a national of the State where it considers the transfer of the national appropriate having regard to any close ties which the national has with the State".
Amendment agreed to.
Acting Chairman
Amendment No. 18 arises out of Committee proceedings and has already been discussed with amendment No. 9.
I move amendment No. 18:
In page 6, line 40, after "consents" to insert "in writing".
Amendment agreed to.
I move amendment No. 19:
In page 6, between lines 44 and 45, to insert the following:
"(4) The Minister shall not consent to a request under subsection (1) of this section unless he or she has first obtained a certificate from the governor of the prison in which the sentenced person concerned will be detained certifying that the reception of that person into the prison will not necessitate the release of any prisoner detained within the prison prior to the expiry of his or her sentence.".
This amendment, which I unsuccessfully moved on Committee Stage, is an attempt to bring some reality, in terms of numbers into the debate on this humanitarian legislation. The Progressive Democrats support this legislation but it would be an exercise in self delusion on the part of this Government and the House if we were not to address, at this crucial point before this Bill is sent to the Seanad, the fact that we have a chronic shortage of prison spaces. My amendment proposes to oblige the Minister before she consents to the transfer of a person sentenced in another State to complete his sentence here, as is provided for under the convention and the Bill, to ascertain from the governor of the relevant prison that there is space for that person.
Refusing to include a recognition in this Bill that our prison system is in chaos is an exercise in ministerial self delusion. My amendment seeks to put into the Bill a requirement for some contact or administrative questioning at that critical time to inform the Minister's decision before she consents to the transfer of an offender sentenced for crimes committed in the UK, Germany or wherever. Before consenting to the return of a prisoner on humanitarian grounds, as is provided for under the legislation and the convention, she should first see if there is a place in this State where such a person can be put without requiring the release of a person convicted for crimes committed in this State who deserves to be kept in prison until he has completed his sentence.
The Minister indicated that the implications of my amendment are impracticable which I reject. How can it be impracticable, in administrative terms, to ask the governor of Mountjoy or another institution if they have space in their prisons for a returned offender without requiring the release of a person who has done evil in this State? The Irish people expect such a person to be kept in jail rather than being released to make space for a prisoner returned from overseas. It cannot be fair, prudent or just for the Minister to decide to accept the return of a prisoner from abroad without addressing that critical factor.
My amendment was drafted and tabled before this Government decided to reverse the policy of providing an extra 210 prison spaces. My amendment was relevant then and it is even more relevant now because, with the recent Government decision to scrap the extra 210 prison spaces, we are in an even worse position when it comes to applying this Bill.
As I said earlier, my party supports this legislation as an integral part of the peace process. The reservations I am expressing here today have no impact whatsoever on the possible return of paramilitary prisoners from Britain because we have space for them. There has not been enough discussion of the figures. We are making provisions which allow the Minister wide powers and we have not realistically addressed our prison accommodation problems.
I understand there are 58 subversives out of a total of 162 prisoners in Portlaoise, which has capacity for over 200 prisoners. There are 58 prisoners in Portlaoise in the category scheduled for phased release under the peace process, which I hope will continue. I wish the Minister well on that as the issue of prisoners is an essential part of progressing towards reconciliation. There are 35 prisoners in Britain who I hope will apply to return to Ireland to complete their sentences and I believe the Minister is well disposed, in terms of the peace process, to that. It is an essential part of the peace process and there is space in Portlaoise for that category of offender.
However, I am not referring to that category of offender but prisoners in Mountjoy which is unbelievably crammed. The visiting committee in Mountjoy referred to it as a volcano waiting to erupt. In terms of rehabilitation and any humanitarian, decent treatment of our prison population, we are in a chronic situation. It is irresponsible of the Minister to allow this legislation to go through this House without including it in some recognition of our chronic overcrowding and shortage of prison spaces. The prison system manages to lurch from crisis to crisis on a daily basis by the temporary release of convicted offenders who reoffend in the community.
When I put this issue to a vote on Committee Stage, I was the only person who supported including a provision to oblige the Minister to address the problems in regard to prison spaces. She has failed to do that. She said it would be impracticable for her to ask the Governor of Mountjoy if he has space for a returned prisoner without releasing an Irish offender onto the streets of Dublin. I do not see anything impracticable about that. I would regard it as a normal administrative function in the proper management of the prison system. The Minister is in flight from reality in enacting this legislation without first addressing that critical issue.
On Second Stage the Minister of State mentioned that it may be necessary for the Government to insert a reservation during th eratification process stating the availability of space will be one of the criteria to be applied. As in the case of other provisions, even if the convention allows for discretion, such a reservation should be inserted in a statute.
It is essential in terms of the proper management of the criminal justice system that we include the safeguard that a prisoner will not be released into the community to re-offend in order to house a prisoner who wishes to return here from Germany or Britain for humanitarian reasons. The people should be asked if they think it is right, fair and just that a person convicted here of burglary or rape should be released early so that a prisoner convicted of similar misdeeds in Britain can return. The Minister obviously thinks so and that it would be impractical to ask the governor of Mountjoy Prison to certify that space is available. It would be folly if she were to allow this legislation to go through without first coming clean to the House and the people and addressing the issue of lack of space. It is a matter of regret that the Minister has refused to accept a reasonable amendment.
Prisoners are being released early from Mountjoy Prison to make way for those convicted by the courts and those held on remand. This is the main reason people constantly re-offend. The people are sick to death of persistent offenders being released early because of overcrowding. Under this Bill the Minister will be allowed to agree to the return of up to 400 prisoners from foreign jails. Because of emigration patterns during the past 50 years many people who would be considered to be Irish nationals will be entitled to return here at the Minister's discretion.
The Bill has been improved both on Committee and Report Stages by restricting the discretion allowed for. It is wrong in principle for the Minister not to accept that we are in a position to agree to the return of paramilitary prisoners also. It is necessary to do this in the context of the peace process. The British Government will not accede to each request but that is a matter for negotiation between the two Executives. If ordinary offenders — thieves, burglars, rapists and child abusers — in prison in Britain and Germany are allowed to return at a time when insufficient space is available for persistent offenders this Bill will be a recipe for disaster.
This legislation is a crucial leg of the peace process and it is vitally important that no barriers be placed in its way. With all due respect to Deputy O'Donnell, the amendment would be precisely that as the governor of a prison would have to certify that space was available. Aside from the fact that the prison population is always in a state of flux, inevitably those who seek to return will be Irish citizens or, in accordance with the amendment agreed to earlier, considered to be Irish nationals because of close family ties.
I mentioned last night that if 210 places were required two weeks ago they are still required today. There is a chronic shortage of prison spaces and, without wishing to rake over old ground, it was the Minister for Finance who pulled the plug. There is deep concern in the community about this. This legislation does not, however, envisage the release of criminals on to the street in order to make places available for transferees into the State.
For the most part prisoners in Irish jails are Irish citizens. Deputy O'Donnell appears to be making a distinction between an Irish citizen incarcerated in a foreign jurisdiction and an Irish citizen incarcerated here solely on the basis that the individual incarcerated here committed the offence here. What she is really saying is that we have first and second class Irish citizens, that the second class Irish citizen should remain incarcerated in a foreign jurisdiction until such time that the governor of a prison certifies that space is available while the first class Irish citizen will be incarcerated here because that is where he or she committed the offence. With all due respect, one cannot distinguish between Irish citizens, who have the same constitutional rights, and it would not be right to do so. The purpose of the legislation is to introduce some semblance of humanitarianism to meet the needs of Irish citizens in prison abroad. This amendment does not serve that purpose.
The Irish Commission for Prisoners Overseas estimated that there would be about 40 applicants in the first year of operation of the legislation, and that figure is realistic. However, that is not to say that all 40 prisoners will be accepted because the Minister has retained discretion in that respect, and in any event it will require the consent not only of this State but of the sentencing state and of the prisoner involved. The Irish Commission for Prisoners Overseas estimates that after the first year the number of applicants for transfer to this State will not exceed ten. That appears to be a realistic figure because the commission has carried out considerable research in this regard.
If the number of applicants for transfer to this State is balanced against the number of prisoners who will apply for transfer from the State, it is conceivable that the number of places that will be required in Irish prisons may be less than the figure I mentioned. Nonetheless it is undeniably true, and I strongly agree with Deputy O'Donnell, that there is need to provide additional prison places. Failure to do so would be extremely serious, and I outlined the reasons to the House last night.
It is a matter for the Government to provide prison places. A lack of sufficient prison places will not be an excuse for not passsing this legislation or for passing the amendment proposed by Deputy O'Donnell. The legislation must be passed on humanitarian grounds and in the interests of the peace process. It must go through the House without barriers, or at least with a minimum number of barriers, and failure to ensure that could have serious consequences. We must face reality. A promise was made that the legislation would go through the House, and that promise must be fulfilled. Deputy O'Donnell's amendment is a barrier to the legislation. It would be unworkable and undersirable and would effectively create a two-tier system of citizenry, which is wholly undesirable.
The debate on this legislation, on Second, Committee and Report Stages, has been marked by unanimity that it is good legislation and it is well past the time when it should have been implemented — Ireland signed the convention in 1986. I am amazed and disappointed with the divisive way Deputy O'Donnell spoke on this amendment. She used very intemperate language. I thought the Progressive Democrats Party was in favour of this Bill and was concerned about prisoners overseas. However, having listened to Deputy O'Donnell, I do not think that support is forthcoming.
The Deputy is trying to put in the way of the implementation of this Bill every hurdle that will ensure not one single person will be able to transfer here. That is implied not only in the amendment but in her comments, which are scaremongering and divisive. Perhaps she is looking for a headline in making statements such as "the Minister will release rapists and murderers in order to bring people back from other countries". Why does she think I have retained the power that is implicit in the convention relating to the consent clause? I have done so because I am concerned about our prison population and the impact of legislation such as this on that population. It is necessary for a Minister — I am sure the same argument will be made by Ministers in other countries — to have discretion to examine the implications of agreeing to the transfer of a prisoner.
This convention was founded not because of the peace process but because a number of countries in the Council of Europe wanted a mechanism whereby humanitarian legislation could be implemented. Countries believed that people serving sentences in their prisons would more appropriately serve them, for the sake of their families, in their own countries.
We do not have sufficient space in our prisons.
The legislation is part and parcel of the convention.
Have we space for one extra prisoner?
Deputy O'Donnell will have an opportunity to reply in a moment. She should guard against intemperate remarks in making the valid point that I must have discretion in considering whether there is space for a prisoner without releasing some of the offenders she mentioned. I have no intention of releasing rapists or murders in order to allow a prisoner to come back from another country. As the Deputy rightly pointed out there will be a possibility of allowing a certain number of transfers because, for example, to date 20 paramilitary prisoners have been released from Portlaoise. There are still 58 prisoners in that category in Portlaoise. The Deputy's suggestion that all those prisoners will expect to be released in the event of the peace process continuing is not correct. The Government's decision on the release of prisoners will be taken carefully and considered on the merits of each case. There will not be a global package and the Deputy was wrong in generalising the matter.
Deputy O'Donnell is probably aware that there are other prisoners in Portlaoise. There are 28 prisoners who are considered serious, heavy criminals, nine special category prisoners, including people who are serving 40 year sentences, and in D Block there are 67 prisoners on half remission — they are referred to as ordinary prisoners as opposed to paramilitaries. The Deputy said that Portlaoise prison can cater for more than 200 prisoners. It was certainly built with that intention, but as a result of the 25 years of violence in the North it never reached that capacity because special arrangements had to be made in the prison.
I will happily arrange for Deputy O'Donnell to visit any prison and see how the prisons system works and how impractical it would be for me to obtain a certificate a month in advance of agreeing to a transfer. One of the criterion to be considered in making a decison on a transfer and the timing of such a transfer is that I will have to be satisfied there is a place for the prisoner. I am sure Deputy O'Donnell is aware of that but she is using the amendment to have a general go at the legislation in a way that exposes the reality that she and her party would prefer if it was passed. It is impractical for me, when I am getting information from a country from which a person might be wanting to come back to say, ahead of time, or for the governor to say: "On such and such a date we will not have a place" or "we will have a place." It would tie the hands of a Minister and force that Minister to refuse every single applicant. I do not believe that is what people in this House want to happen if this Bill is implemented, as I hope it will be.
Deputy O'Donnell, in the intemperate way that she was using language here today, referred to the Government's decision to "scrap" prison places. I have made it quite clear, and the Government have made it quite clear, they are deferred. The need for prison places has existed for some considerable time, long before we came to deal with this legislation. If the decision by the last Government to build Castlerea had been taken when the Fianna Fáil Party came into Government and when the Progressive Democrats were in Government too, those places would now be available but the decision was taken only last year, after six years of continuous Fianna Fáil Government. Those places would not be available, even if the decision was not taken by the Government two weeks ago, for two years.
I want to implement this legislation now as soon as it passes all stages in this House and I want to be able to consider applications now before those places are available. The peace process is an important element in the implementation of this legislation but it is not the only element. Deputy O'Donnell implies that there will be no spaces available chiefly because our prisons are overcrowded. Yes, they are overcrowded. I do not deny that but they were overcrowded when I came into this Department and they will, I hope, be less overcrowded when I leave this Department at the end of two and a half years when this Government, of necessity, has to go to the people again. As of 15 March 1995 there are 184 people who are not Irish in our prisons. There is one from Australia. I am quite sure an Australian serving a sentence here would very much like the opportunity to return to Australia to finish his sentence.
If he is in Mountjoy, I am sure he would.
There is one Austrian, one Belgian, one Canadian, three Dutch, 103 English, 31 of whom are in Mountjoy, no French, two Germans, one Indian, one Italian, one Milawian, 57 from Northern Ireland, ten Scottish, one Welsh and one from Hong Kong. It stands to reason that some, it not all, of those, at some stage over the next few years, will seek to have their sentences finished out in their own countries and if they fulfil the conditions will thereby give us some latitude.
May I finish by saying to Deputy O'Donnell that I am concerned about the impact of transfers back here on our prison places. She, in some kind of knowing way — she has no evidence at all — says I will immediately release rapists and murderers. That is just scaremongering language. I know it will catch a headline for Deputy O'Donnell but it is not a responsible way to deal with this legislation. I will not be dealing with this legislation in the way that Deputy O'Donnell is trying to imply. It is precisely because I am concerned about our prison population and the need for careful consideration of every application that I am maintaining what this convention wants me to maintain. Implied in its terms is the discretion to take into account all the considerations that Deputy O'Donnell, Deputy O'Donoghue and others have raised in the course of this long debate.
I wish Deputy O'Donnell would decide whether she is in favour of this legislation or against it. The concerns she expressed today about prison spaces are concerns I have and will continue to have in the implementation of this legislation.
It is not sufficient for the Minister to say that she shares my concerns. The fact that the Minister has got herself into a tailspin and accuses me of scaremongering and intemperate language shows that I have hit a sore point. This piece of legislation is going through the House and had I not put down this amendment to address our chronic shortage of prison spaces and to address the dilemma and the choices that would have to be made by the Minister in the proper management of our prison system we would not have got the figures that the Minister has just given us. We would not have heard that there are 184 foreign nationals in jails here.
I would have given that information on the next amendment.
My purpose in putting down this amendment was to force the Minister to get real, to actually give us the figures.
May I ask, on a point of order——
Is it a point of order?
Deputy O'Donnell again is imputing that I might have hidden some information. I had this information available and would have given it——
For goodness sake, will you sit down?
I beg your pardon.
I did not imply the Minister was hiding information.
I would appeal to you, Chair, that Deputy O'Donnell should guard against imputing that somehow or other I would want to hide information. I have given masses of information. If Deputy O'Donnell had listened to some of it on Second Stage she would not have made some of the statements she made here today.
Was that a point of order?
You were impugning my character.
I would not dream of it. I withdraw any inference that the Minister might have been misleading the House.
Who is getting upset now?
The Minister has said that it would be impracticable for the governor of Mountjoy to assess his prison population and to say: "For me to take this prisoner in from Britain I would have to release another person". The fact that the Minister says that that is impossible as an administrative process indicates to me that the Minister is accepting the chaotic crisis management that is going on in the prison system at the moment. She is saying that everything is in a state of flux, we do not know who is released from one day to the next, the whole thing is a revolving situation.
What sort of people are released early? What sort of people are given temporary release? We do not know that because all of this information is not given to the Dáil. There is no register that I can go to and see how many people were released this week to allow for other people to come into the prison system. The Minister is saying we cannot do that because the prison situation is in a constant state of flux and it would be impractical for the governor of Mountjoy to be asked whether the acceptance of an Irish national to this State necessitates the release of a person serving a sentence here. She is saying that is not possible, which is an indication that the Minister is not in control of the jails. She does not have sufficient information at her disposal in her Department to enable her to make a management decision, an accommodation decision, in consultation with the governor of Mountjoy, in relation to the temporary release of prisoners.
I believe I have raised an issue which hurts the Minister. She accuses me of scaremongering because I have raised this issue but the Minister cannot put her hand on her heart today and say there is space for people who are to be returned from Britain to finish their jail sentences here under the terms of this Bill. The reality is we do not have space. The prison officers have said Mountjoy is overcrowded. The prison officers working in all the other jails have indicated, similarly, that they are sick to death of trying to cope with the chronic shortage of prison spaces. The Minister has no response to this point today because she cannot say there is space. If this Bill goes through the House and in six months time ten, 14 or 41 people apply under the provisions of this Bill to come back to this State to finish their sentences, she cannot say there will be space for them. She will not accept that she should put in a reservation—
We do not keep empty spaces.
You do not keep empty spaces?
No. No more than the councils keep empty houses. We do not keep them to one side.
That is exactly what I am saying. We have no spaces. She is not willing to put into this Bill some indication that unless we have a space for that person we cannot accept that person back. I totally support the idea that this Bill has to go through the House. Indeed it should have gone through the House along ago.
Do you? I wonder.
Of course we do. We totally support this Bill. I am asking the Minister to address the chronic shortage of prison spaces. Other States are party to the convention and they passed legislation to allow its ratification, but do they have the same shortage of prison spaces?
Yes.
Do they have the same number of expatriates who have committed offences in other States? Have they been more sensible than us and included a reservation in legislation ratifying the convention and in their domestic legislation to provide that they cannot accept the transfer of prisoners if they do not have sufficient prison spaces? Surely that is one of the most important criteria. I accept and have said that we support this Bill from the point of view of the peace process as it is an essential part of it. Space is available to accommodate transferred paramilitary prisoners, not all of them will be transferred as that would not be acceptable to the British Government, but space is available to accommodate those who return to complete the remainder of their sentences here. The Minister has failed to address the issue of prison spaces. She has adopted an emotional accusatory mode in saying I am being intemperate.
The Deputy might use another few big words.
Heaven forbid that an Opposition Deputy might be intempeate. It is my duty to be intemperate if I am aware that legislation passing through this House——
That is irresponsible.
I wonder what is the view of the Minister of State, Deputy Gay Mitchell, regarding the Minister agreeing to accommodate transferred sentenced prisoners from another State when we are churning out offenders back on to the streets because we do not have sufficient places to accommodate them.
So the Deputy is not in favour of the Bill.
I am in favour of the Bill if we have sufficient prison spaces. I wish the Minister would put this matter to the people. As Minister for Justice, I wish she would attend a meeting on crime in her constituency.
I have attended many of them.
I wish she would tell those people that if we ratify the convention we are obliged to accept the transfer of prisoners serving sentences abroad who have committed crimes of assault, aggravated burglary and so on.
The Deputy is against the Bill.
I am not against it but we do not have sufficient space to accommodate a large number of prisoners.
The Deputy cannot have it every way.
The Minister has not included any provisions which would afford the State protection in terms of the number of prisoners who may be transferred. The peace process must proceed and there are adequate spaces to accommodate the people for whom this Bill has been politically accelerated. This Bill could have been ratified 12 years ago, but until now there was no rush to introduce it. A deal has been done because of the peace process. It is essential that it be introduced now as part of the peace process but the Minister has failed to address the chronic shortage of prison spaces here. I know she does not want to hear that. I can imagine what the Minister of State, Deputy Mitchell, would say if he were addressing the Minister from where I stand.
Carlow-Kilkenny): The Deputy appears to be repeating herself.
I would like Deputy Mitchell to express his view regarding the folly of this Fine Gael Minister who prior to taking up office as Minister for Justice was ably represented on this side of the House by the Minister of State, Deputy Mitchell, when in Opposition. He would have been the first to howl about this. The Minister may consider she has heard me use intemperate language, but she would not have heard the half of it if the Minister of State, Deputy Mitchell, were addressing her from where I stand.
Acting Chairman
I do not know if the Deputy is entitled to presume that he would be howling or doing anything else.
Am I not entitled to presume anything?
Acting Chairman
I am not sure if it is in order for the Deputy to make presumptions about other individuals.
I withdraw any implication that the Minister of State, Deputy Mitchell, might have agreed with me on this point. It might be insulting for a Minister of State to agree with an Opposition Deputy, but from his stance on law and order and on the criminal justice system when in Opposition representing the Fine Gael Party I am sure he would agree with me on this point. I consider that the Minister has taken a flight from reality if she refuses to acknowledge the difficulties regarding prison places if this Bill is passed without inserting safeguards to guard against the possibility that prisoners will be released from Mountjoy to enable Irish nationals sentenced in foreign countries to transfer to Irish prisons to serve the remainder of their sentences.
I will be withdrawing my amendment as it was rejected on Committee Stage. I am glad I raised it and I do not apologise for doing so. The Minister appears to think I owe her a range of apologies for being intemperate, for pointing out the reality in terms of the numbers issue and implying she might have misled the House. I made no such implication. The reason I tabled the amendment was to enable us to address the numbers issue which is relevant to the debate.
Amendment, by leave, withdrawn.
Amendment No. 20 not moved.
Acting Chairman
Amendment No. 21 arises from proceedings on Committee Stage, amendment No. 23 is related and, therefore, amendments Nos. 21 and 23 can be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 21:
In page 8, line 4, after "duration" to insert ", with due regard to any remission of sentence accrued in the sentencing state,".
I tabled the amendment to address the point covered by Deputy O'Donoghue's amendment on Committee Stage to section 5. I note it is covered in amendment No. 23. Section 5 (4) provides that a High Court warrant authorising the continued enforcement here of a sentence imposed by a foreign court will have the same force and effect as an ordinary committal warrant. It follows that when a sentenced person is transferred into the State, the person will be subject to the same rules governing remission, temporary release, administration of sentence in terms of the balance of the sentence to be served here as generally apply to other persons sentenced here.
As part of the continued enforcement, paragraph 49 of the explanatory memorandum states that the convention envisages that the duration of the sentence to be served in the receiving or administering State must correspond to the amount of the original sentence taking into account the time served and any remission earned in the sentencing State up to the date of transfer. The convention, and likewise the Bill in section 5 (6) (a), goes on to state that a person can never be any less well off from the point of view of time left to serve.
The Minister of State, Deputy Currie, undertook on Committee Stage to examine whether it would be preferable to make Deputy O'Donoghue's point more explicit in the Bill. The amendment to section 5 (4), which I tabled, seems to make it explicit in the Bill that the High Court in issuing a warrant for continued enforcement must have due regard to any remission accrued in the sentencing State. In other words, if a person has earned one-third remission in respect of the portion of his or her sentence served abroad, he or she will be credited with it and that will be reflected in the amount of sentence he or she will be required to serve when transferred here.
Deputy O'Donoghue's amendment No. 23 could have the effect that where a prisoner had earned remission at a higher rate than he or she would be able to earn here, say at a rate of one-third as opposed to one-quarter, that would be reduced retrospectively to one-quarter on transfer here in respect of the part of his or her sentence served abroad. I am sure that is not what he wants. He wants to ensure that a prisoner would not suffer as a result of a transfer here, but it could be argued that if he or she had a higher rate of remission in another country on, say, a ten year sentence, that when transferred here that higher rate would be reduced to the one applicable for the whole sentence. That could have been inferred by the wording of Deputy O'Donoghue's amendment. The amendment I tabled will address Deputy O'Donoghue's point, that due regard to any remission of sentence accrued in the sentencing State will be taken into account here. I commend amendment No. 21.
I welcome the Minister's amendment, it tackles the point I was trying to make. There was a need to clarify the rules governing remission and my amendment seeks to ensure that a prisoner transferred to the jurisdiction will not receive any less favourable remission. The Minister's amendment achieves that objective and in those circumstances I will withdraw my amendment.
Amendment agreed to.
I move amendment No. 22:
In page 8, to delete lines 7 to 12 and substitute the following:
"(5) On an application under subsection (1) of this section, or on the application of the sentenced person concerned within one month of being brought into the State from a place outside the State, if the sentence concerned imposed by the sentencing state concerned is by its legal nature or duration incompatible with the law of the State, the court may adapt the sentence to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed. A sentence shall be regarded as incompatible in its legal nature with the law of the State if it imposes a form of deprivation of liberty which in its legal or physical attributes is not known in the State. A sentence shall be regarded as incompatible in its duration with the law of the State if it exceeds the maximum penalty prescribed by the law of the State for a similar offence, or if the criteria for calculation of the duration of the sentence are incompatible with the law of the State. Before adapting the sentence, the court shall give the sentenced person concerned an opportunity to make representation with respect to sentence.".
A number of questions arise regarding the transfer of persons into the State. The convention appears to envisage that the rules governing remission and so on should be those that operate in the State to which the prisoner is transferred, in other words, the administering State. This matter should be clearly outlined in so far as prisoners transferred into this State are concerned. A sentence of incompatible duration can be made to correspond with practice in the other State if forms of detention of a similar nature are applicable in both States. I commend the amendment to the House.
This is a complex amendment and relates to one of the most complex parts of the convention. Essentially, Deputy O'Donoghue is trying to combine the two ways in which the convention can be implemented regarding continued enforcement of a sentence. Under Article 9 the convention gives the administering State the option of continued enforcement of the sentence immediately or conversion to the sentence applicable in the receiving country, as if the crime were committed there. In this legislation we opted for the continued enforcement method. Deputy O'Donoghue's amendment would include a little of both methods and, therefore, is not practical. It would cause too many difficulties.
Continued enforcement essentially means that where a prisoner is transferred the original sentence continues to be enforced. For example, where a prisoner had served five years of a ten year sentence before transfer he or she would serve the balance of the five years after being transferred. There are limited exceptions under the continued enforcement procedure and they would arise where the nature or duration of a sentence is incompatible with the law of the state to which the prisoner is being transferred. For example, a prisoner may be serving a sentence of penal servitude but that may not be a penalty under the law of the administering state. The convention provides that in such cases, under the continued enforcement procedure, the administering state would adapt the sentence to a sanction provided by its law for a similar offence. In the example I mentioned the likelihood is that a penalty of imprisonment or detention for the same duration would be substituted for the penal servitude penalty. The convention provides that where continued enforcement is used the substituted penalty should not aggravate the sanction imposed in the sentencing state nor exceed the maximum prescribed by the law of the administering state.
Under the conversion procedure — the other option under Article 9 — a state substitutes a penalty of its own rather than continuing to enforce the existing penalty. Various rules govern this, including a provision that under this procedure the penalty cannot be aggravated. In practice, this procedure will mean that the competent authority in the administering state will regard the facts behind the conviction as having been proved and then impose a penalty as if the person were convicted in the courts of that state. Continued enforcement rather than the conversion procedure is the approach adopted in the Bill. Under section 5 the court will issue a warrant for continued enforcement but may adapt the sentence where, by its legal nature and duration, it would be incompatible with our law.
The advantage of this procedure over a conversion procedure is that it carries greater certainty and in the majority of cases will be simple to apply. This will be the case particularly in regard to the transfer of prisoners from the United Kingdom because of our similar legal systems. The conversion procedure is much more complex and could involve a new sentencing hearing. It might be necessary to set up a new court procedure to convert a sentence imposed in another country. In the explanatory report accompanying the Council of Europe Convention it is recognised that the conversion procedure may take some time and, accordingly, the convention provides for a procedure for keeping the person in custody in the administering state pending the outcome of that procedure. It is difficult to envisage any advantage with the conversion procedure that would outweigh the difficulties to which it could give rise.
The changes proposed in this amendment have two purposes, the first being to qualify the concept referred to in section 5 (5) of a sentence which is "by its legal nature and duration incompatible with the law of the State". That phrase is taken exactly from the wording of Article 10 of the convention. The amendment suggests that this should be qualified by stating that "a sentence shall be regarded as incompatible in its legal nature with the law of the State if it imposes a form of deprivation of liberty which in its legal or physical attributes is not known in the State". While I appreciate the desirability to avoid doubt I am not sure this form of wording would achieve that. Moreover, given the complexities involved arising from the differences between various legal systems, the best approach would be to leave the wording of the convention enshrined in the Bill without further qualification and leave it up to the courts to apply this as appropriate in the individual cases that come before them. In other words, the words of the convention should be transferred directly to the Bill to allow the courts deal with each case as appropriate.
The basic purpose of the remainder of the amendment appears to propose to allow the courts in certain circumstances to operate a conversion procedure rather than an enforcement one. That is similar to having one's cake and eating it, in other words, using both systems. The success of the actual wording in achieving this — particularly with its reference to "criteria for calculation of the duration of the sentence"— is unclear. For the reasons I outlined earlier I regard the continued enforcement procedure as more appropriate in this case.
The amendment also states that before adapting a sentence the court shall give the sentenced persons concerned an opportunity to make representation with respect to sentence. If we were adopting the conversion procedure, I would see merit in that and I believe it is in that context it was suggested. It should not, however, arise in using the continued enforcement procedure.
This is a complex part of the legislation. The continued enforcement procedure will have the advantage of providing greater certainty and will lead to a simplified procedure for the transfer of prisoners to this State. I do not regard it as an injustice to individual prisoners whose sentences were imposed in accordance with the laws of the state in which the offences were committed and it should have the advantage of expediting transfers under the convention without a risk of injustice to the applicants or the need for costly and protracted court proceedings.
Will Deputy O'Donoghue take into account that the procedures I use are the simplified ones which are more appropriate in our legislation? For that reason, I ask him to withdraw his amendment.
I did not suggest that a conversion procedure be used rather than continued enforcement. The purpose of the amendment is to set out in clear detail the definition of "incompatibility with Irish law". In that context, the amendment, in defining "incompatibility", allows Irish principles of appropriate sentencing to be applied, in addition to Irish maximum sentences, and also gives the prisoner the right to raise the question of the compatibility of the original sentence with Irish law.
In section 5 (5) there is already an element of conversion. It provides that the courts may adapt the sentence to a sentence prescribed by the law of the state for an offence similar to the offence for which the sentence was imposed. That also refers to incompatibility. One could say, therefore, that where there is adaptation, there must be an element of conversion. One of the objectives of the amendment is to clearly define "incompatibility", the other being that the prisoner should have the right to raise the question of the compatibility of the sentence with Irish law. If that were to be accepted, the applicant would have to be allowed legal representation. However, I do not intend to press the amendment.
Amendment, by leave, withdrawn.
Amendment No. 23 not moved.
I move amendment No. 24:
In page 8, between lines 29 and 30, to insert the following:
"(10) A person transferred into the State shall be free at all times to utilise any procedure available to reopen his/her case and/or challenge his/her conviction in the courts of the sentencing state.
(11) Any document submitted to the court on an application pursuant to this section shall be admissible—
(a) in so far as it consists of a statement of fact, as evidence of the fact, and
(b) in so far as it consists of a statement of opinion, as evidence of that opinion.
(12) Any document submitted for the purposes of an application under this section which—
(a) purports to be a translation of a document, and
(b) is certified as a correct and true translation by a person competent to do so shall be admissible as evidence of that translation and shall be accompanied by an original or an authenticated copy of the document of which it is a translation.
(13) The sentenced person concerned may appeal a sentence imposed under subsection (5) of this section, or a refusal by the High Court to adapt the sentence imposed by the sentencing state to the Court of Criminal Appeal under the following conditions—
(a) if the appellant obtains a certificate from the judge who imposed sentence that the case is a fit case for appeal; or
(b) in case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grants leave to appeal.
(14) Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of the opinion that a question of law is involved, or where the sentencing hearing appears to that court to have been unsatisfactory, or there appears to that court to be any other sufficient ground of appeal.
(15) Section 33 of the Courts of Justice Act, 1924 shall apply to the hearing of an appeal under this section.
(16) Subject to the same requirements as are imposed upon the High Court by subsection (6) of this section, the Court of Criminal Appeal shall have power on such an appeal to remit, or to reduce, or to increase or otherwise vary the sentence, or to dismiss the appeal, and generally to make such order as may be necessary, within the terms of this Act, for the purpose of doing justice in the case.".
The first paragraph of the amendment is for the purposes of clarity. The paragraph relating to documentation will facilitate processing evidence from other convention states. The amendment also allows for an appeal to the Court of Criminal Appeal against a High Court sentence or a refusal by the High Court to adapt the sentence imposed by the sentencing state. These are procedural matters and I do not intend going into them in detail.
Under Article 13 of the convention, the sentencing state alone has the right to make decisions on an application for review of a sentence or an appeal of a conviction. The exclusive competence of the sentencing state is justified by the fact that the crime was committed in that state and it would have full knowledge of and access to all the relevant evidence and information and would be in a position to examine it. There is not anything in our law which would prevent a person transferred here pursuing whatever legal avenues of redress may be available in the state where he or she was sentenced. The inclusion of this amendment however, would enshrine in our laws measures relating to the laws of other states. We do not have any jurisdiction to do that and the inclusion of the new subsection (10) as proposed in the amendment would not be of any benefit to the prisoner. The convention clearly states that if a person is transferred here who has been sentenced in another state, any appeal he might wish to make must be made in the country in which he was sentenced. It cannot be made here. It would not be in keeping with the convention if we were to allow prisoners transferred here to have their cases retried in this State.
The remainder of the subsections would only arise if the conversion procedure were to be used. As we have not proceeded with that, the remainder of the amendment is not relevant. The new subsections (11) and (12), which deal with technical matters relating to the admissibility of documents, would only be relevant if the conversion procedure was being used rather than continued enforcement. These portions of the amendment flow from the proposed section 5 (10) and, as I am not accepting that subsection, the remaining portions are not relevant.
I accept there is a procedure for any appeal that may arise in the context of the sentencing state but if a person imprisoned in one of the signatory countries when this legislation is enacted transfers here and wishes to appeal his sentence in the sentencing state, there is not any stipulation in the Bill as to how matters such as length of sentence, travel costs, etc. will be dealt with. The presumption is that because the appeal would be heard in the sentencing state, any costs would be incurred by that state but complexities can arise and a country might possibly renege on its obligations if they are not clearly specified.
Acting Chairman
Under Standing Orders, the Minister is not allowed to contribute but I am sure she will discuss the matter with the Deputy later.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 25 was discussed with amendment No. 12.
I move amendment No. 25:
In page 9, between lines 18 and 19, to insert the following:
8.—(1) In deciding whether or not to grant an application under section 2 (1) of this Act or to consent to an application under subsection (1) or (2) of section 4 of this Act the Minister shall not, without good reason, discriminate between applicants, on the grounds of gender, marital or parental status, racial origin, age, political opinions or religious or other beliefs, health or sexual life, taking into account the operational requirements of the prison service and the welfare of the applicant.
(2) Where the Minister decides not to grant an application under section 2 (1) of this Act or consent to an application under subsection (1) or (2) of section 4 of this Act, the Minister shall notify the applicant or the requesting state, as the case may be, of such decision and such notification shall, where practicable and where the interests of justice do not preclude so doing, include a statement specifying the grounds for such decision.".
Amendment agreed to.
Acting Chairman
Amendment No. 26 has been ruled out of order because it would involve a charge on the Revenue.
Amendment No. 26 not moved.
Amendment No. 27 not moved.
Acting Chairman
Amendment No. 28 arises from our proceedings on Committee Stage. With the agreement of the House perhaps amendments Nos. 28, 29 and 30, which are alternatives, may be discussed together.
I move amendment No. 28:
In page 9, to delete lines 19 to 22, and substitute the following:
"8.— The Minister shall, as soon as may be after the 1st day of January in each year beginning with the year 1996, make a report to each House of the Oireachtas on the operation in the preceding year of this Act.".
This amendment merely provides that the Minister would report to each House of the Oireachtas on the operation of this Act in the preceding year. It is advisable that the House be advised on how it is progressing, to be informed of how many prisoners' applications have been accepted and how many applications for transference out of the State have been accepted. The Extradition (Amendment) Act, 1987 also provides that a report be made to each House of the Oireachtas concerning its operation. Such desirable reportage would also give the Houses an opportunity of discussing the operation of this innovative Bill.
When first presented to the House there was an obvious omission from the Bill, there having been no obligation on the Minister to report to the Houses of the Oireachtas on the exercise of this discretionary power. In the course of the debate the Minister more or less accepted, by agreeing to amendments tabled by Deputy O'Donoghue and me, that the criteria invoked by her in the exercise of her discretion should be clearly made known. As has been pointed out, in terms of administrative law, whenever a discretionary power is exercised, there is always a danger it can be abused. Therefore, such discretionary power should be seen to be as transparent as possible within the practicalities of our justice system.
I was concerned about the absence of any mechanism which we could use to scrutinise how the provisions of the Bill were progressing and how its implications were being felt. While I had concerns about the problem of prison places I was concerned also about the general implementation of the provisions of the Bill, believing it to be important that the Oireachtas keeps a careful eye on the exercise of this power.
There is a great deal of politics incorporated in this Bill. It does not incorporate a right to transfer but rather a right to apply to the Minister for such transference. In the application of that discretionary power we must be very careful that people's rights are properly protected and that the proper use of administrative powers is seen to be preserved. This specification of providing an annual report to both Houses of the Oireachtas would be one method by which transparency and accountability could be seen to be practised in regard to this power of the Minister for Justice.
We have already observed that the petition system has been faulted by our courts on account of this lack of transparency. It is because there is no provision for reporting to the Houses on the petition system, a similar Executive power given by statute, it is crucial, within the overall range of ministerial powers, that Ministers be accountable to this House in the exercise of such power.
I thought the Minister had indicated on Committee Stage that she would table an amendment providing for the presentation of an annual report to the Houses of the Oireachtas.
It was accepted on Committee Stage and these amendments are superfluous.
I had expected that the Minister would have tabled her amendment with these amendments, thereby indicating that she had accepted the principle of transparency. My amendment seeks somewhat more information than did the Minister's on Committee Stage. Her amendment had the capacity of being an air brush report whereas I had sought details of the convention state from which a prisoner was transferred, along with the nature of the offence giving rise to the sentence imposed, its duration and a report on whether that prisoner had been released since his or her return.
I am glad the Minister has accepted Opposition amendments providing for accountability to the Houses. That was not contained in the original Bill.
It was my amendment on Committee Stage that incorporated in the Bill a provision under which an annual report would be presented.
It was not incorporated in the original Bill.
Acting Chairman
As it is now 1.15 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed".
Question put and agreed to.