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Dáil Éireann debate -
Tuesday, 27 Feb 1996

Vol. 462 No. 2

Private Members' Business. - Prosecution of Offences and Punishment of Crimes Bill, 1996: Second Stage.

I move: "That the Bill be now read a Second Time."

The Minister for Justice is due to move the Second Stage of a Bill on Thursday next designed to tackle the menace of drug trafficking in our society. What useful purpose will this Bill serve if, in the meantime, nothing is done to restructure our creaking criminal prosecution service, to change our bail laws, to confront the issue of the so-called right to silence, to modernise and speed up criminal court proceedings, to bring our law on sentencing up to date and to tackle the revolving door chaos in our prisons? These are issues the Minister can no longer ignore. I do not pretend the chaos in our prosecution system in the courts and in prisons is the fault of this Minister, but it is her responsibility. We will support the Minister's Bill on Thursday, but in return we request her to support action on the real problems in the criminal justice system

This Bill is the real agenda on the prosecution and punishment of criminal offences. It provides for major changes in our laws relating to the prosecution of offences, criminal procedures relating to accused persons, the extent of the right to silence, bail, control and management of the prison system, sentencing and the law relating to pardons, remissions and temporary releases. Its philosophy is integration, speeding up trials, modernising criminal procedure and eliminating loopholes in the existing law which are well known to everyone and to this Government. A great deal has been said about the revolving door policy in our prisons. There has been a frustrating debate with repetitive dialogue by legislators who all agree that major changes are needed to come to grips with a defective criminal justice system. The debate has been marked by an extraordinary degree of consensus, yet there is apparent paralysis and a frustrating inability to make the changes we all agree are needed.

Members will be aware that I have a particular interest in the role of the Director of Public Prosecutions in the prosecution of offences. During the past two years I tabled dozens of questions to the Taoiseach on the functions and operation of the office of the Director of Public Prosecutions. It was only after two years persistently questioning the Taoiseach that he eventually agreed to an internal inquiry into the operations of the office of the Director of Public Prosecutions as part of the Strategic Management Initiative. I welcome this.

It should not be so difficult for a Deputy to extract statistical information on the rates of prosecutions in the Director of Public Prosecutions office. A greater degree of accountability is required in the public interest. It would not prejudice the necessary independence of the office of the Director of Public Prosecutions. For my efforts in the past two years I have been accused of politicising the office of the Director of Public Prosecutions and of "political sniping at the Director of Public Prosecutions under privilege." I make no apology for my efforts in this matter because no arm of the criminal justice system, particularly the key area of decision-making as to whether to proceed to prosecution, can be permitted always to be independent, devoid of accountability and closed to scrutiny by any person at any time.

This Bill provides that the Taoiseach can make regulations under section 10 of the Prosecutions of Offences Act, 1974, to allow for the establishment of a unified prosecution service. The Director of Public Prosecutions publicly called for the establishment of a unified prosecution service in the September 1995 issue of Communiqué, a Garda management magazine. He referred to the “absurd duplications and delays which were brought about by the current system whereby the decision-making function, which is his responsibility, and the actual running of the case is divided.” The Chief State Solicitor's offices run the cases in the courts on the instructions of the office of the Director of Public Prosecutions.

My Bill provides that these criminal prosecution functions of the Chief State Solicitor's office which is under the control of the Attorney General on behalf of the Director of Public Prosecutions, will be carried out in future under the control and management of the Director of Public Prosecutions, either directly or indirectly. This provision would increase the efficiency and speed of prosecutions and eliminate the lengthy and protracted correspondence between the offices of the Chief State Solicitor and the Director of Public Prosecutions.

Section 5 provides for an annual report by the Director of Public Prosecutions to be made to the Oireachtas. This would give a statutory basis to a recent suggestion by the Taoiseach that this might be possible. Section 6 provides that the Director of Public Prosecutions will be a capable and compellable witness before Oireachtas committees on the functions, policies and procedures adopted by his office. This section would not impinge on the independence of the Director of Public Prosecutions in that he could not be questioned on a particular case.

Recently I publicly criticised the Director of Public Prosecution's agreement to participate on a phone-in radio programme when he had not appeared before a Committee of this House and was reluctant to do so. When he stated publicly on the airwaves that he had not been asked to attend a Dáil Committee, I arranged for the Select Committee on Legislation and Security to invite him to come before it with a view to discussing prosecution policy generally. The invitation was issued in November and as far as I know, there has not been a reply from the director.

When I read the article in Communiqué on the prosecution service I immediately sought to raise these publicly expressed views of the Director of Public Prosecutions with the Taoiseach, who has direct responsibility for him in the House. Predictably, the question was transferred to the Minister for Justice and when she replied to it in due course I was flabbergasted to hear her say that she had not discussed these publicly expressed comments with the director nor did she intend to do so. She said that she had met him socially, but that the independence of his office precluded her from discussing this matter with him. Is it any wonder the criminal justice system is in the state that we find it when the Minister for Justice feels precluded from discussing with a very senior independent office holder of 20 years standing proposals which he has made publicly on the prosecution service?

On the question of the publication of an annual report by the Director of Public Prosecutions, the publication of such reports giving statistics relating to the category of complaints received by his office, the numbers of prosecutions initiated and the outcome would not compromise either the independence of the office or the good names of the people involved or alleged to be involved, since they would not be named. The annual publication of such a report would be a very useful exercise. The only method of extracting statistical information of this kind is by the tortuous obstruction filled route of tabling parliamentary questions.

From my experience of talking to the victims of crime and from the experience in other jurisdictions, what victims want is basic information. They do not necessarily want a greater degree of involvement in the trial, such as the right to address the court directly on sentencing, which happens in some US states and does not seem to work very well, they want information on the progress of the investigation, when the case will go to trial, the date to be set and some idea of what will happen on the day.

The parents of a child who was due to give evidence against an adult in a sexual assault case contacted me recently about their concerns. Because the child is under ten years, his parents wanted him to give his evidence by video link, which is available under present law, but there is no such facility in the court where the case was scheduled to be heard. His parents were very concerned about him publicly confronting his alleged abuser and were considering withdrawing him from the case if he had to do so.

From the allegation to the trial, our system of justice should include the victim. This is not the case and the necessary independence of the office of the Director of Public Prosecutions is being used to needlessly cloak the office in secrecy and unaccountability.

The question of bail forms a major part of this Bill and it is worth considering the background to the difficulties and complexities faced in amending our bail laws. The Constitution does not mention the word "bail" but the constitutional dimension of the bail issue stems from judicial interpretation of Article 40.4.1º which states:

No citizen shall be deprived of his personal liberty save in accordance with law.

By a process of judicial interpretation over the years, this Article has come to be a guarantee that no person should be deprived of his or her liberty by "stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution".

Prior to the O'Callaghan case in 1966, the right to bail pending trial was flexible. In favour of granting bail was the overall policy against remanding an accused in custody pending trial where bail could be granted in safety. Against bail, the courts looked to the seriousness of the crime, the likely penalty, the strength of the case, the prospects of a speedy trial, the criminal propensity of the accused, the attitude of the prosecution and the capacity of the accused to abuse bail to interfere with the evidence of witnesses. In other words bail was largely discretionary depending very much on the attitude of the judge and the facts of each case but the O'Callaghan case changed all that. The Supreme Court swept away the previous ad hoc judicial approach and excluded completely from consideration any suggestion that the accused might abuse his liberty to commit crimes. This notion, said to be of preventative justice, was stated to be unknown to our system of criminal law. This case forms the basis of the current difficulties and complexities about a change in the bail laws.

The Supreme Court rejected out of hand the suggestion that bail was a privilege. It was a right, they said, which would only be abridged for lawful reasons; in other words that the accused would abscond or interfere with witnesses. This has been described in Kelly's Irish Constitution as a spectacular liberal bridgehead on the territory of the State's claim to have accused persons remanded in custody pending trial. It is a very liberal approach and, perhaps, an experiment in liberalism which may have been appropriate to the low crime rate in the 1950s and 1960s. Was it a bridgehead too far? Many people feel it may well have been.

In 1989 the Director of Public Prosecutions sought to persuade the Supreme Court to evacuate the O'Callaghan bridgehead. That was not successful. Chief Justice Finlay said: "the criminalising of mere intention has been usually a badge of an oppressive or unjust legal system". Where do we go from here? These issues cannot be brushed aside and the Progressive Democrats would not seek to imply that the matter is a simple one. However, we should not be paralysed in the face of such difficulties.

The traditional notion of innocent until proven guilty must be balanced against the fact that nowadays many criminals are persistent offenders. Evidence of this high recidivism is that prisoners in Mountjoy have received, on average, ten separate sentences and that the number of convictions ranged from one to 93. In 1994, the number of offences committed by persons while on bail was 4,416.

The Progressive Democrats strongly believe that the bail laws must be reasonably amended. Bail should be hard to get in the case of an habitual offender who will abuse it to commit other crime. Recently the High Court upheld the constitutionality of the law relating to "binding over" persons in respect of their future conduct. The Bill proposes that bailsmen be required to become sureties for the accused and stand to forfeit significant sums where the accused commits offences while on bail. In this way, many habitual muggers, car thieves, drug addicts and house burglars would find that they simply cannot get bail to carry on their life of crime. This amendment is possible without a referendum because it falls short of a reversal of the O'Callaghan case and, surely it provides a sufficient balance between the interests of the public and the rights of the individual. There is no doubt that the present system of bail is too lax. It is not followed in other jurisdictions with similar legal systems to our own.

The extent of bail abuse is such that over 4,000 such crimes were committed in 1994. Our proposals would not interfere with a potential referendum to be held on the matter. The Law Reform Commission report, recently published, thoroughly examined the whole area of bail in this and other countries but it was significantly not asked to make recommendations for change. This is a matter which needs political direction and it is a sore point within the Government parties.

Nonsense.

Is the Minister denying that it is——

The Deputy heard the Taoiseach today.

All the Government parties are in agreement so we can expect a change in the bail laws. That is wonderful news. Section 12 allows a judge of the District Court discretion to refuse an application to require the attendance of witnesses for the purpose of sworn depositions in the course of preliminary examination of indictable offences where a judge believes that the application is unjust for the reasons set out in the section. The system of depositions is one with which neither the public nor non-practitioners would be familiar. At present the deposition procedure can be abused to delay a trial and the District Court judge has no discretion to refuse an application for depositions. The section also provides that depositions, which at the moment have to be taken down in handwriting by the District Court clerk, can be recorded, transcribed and later signed by a witness.

Section 13 amends the Criminal Procedure Act, 1967, by inserting a new "fast track" process whereby the Director of Public Prosecutions or the Attorney General, as appropriate, can direct a person to be sent forward for trial without preliminary examination. The purpose of section 13 is to permit speedy trials in cases where the prosecutor is satisfied that a preliminary examination would be redundant on the basis that there will, as a matter of certainty, be sufficient evidence to have the case tried on indictment.

Section 14 introduces a new investigatory provision in criminal law entitling members of the Garda Síochána, not below the rank of superintendent, to apply to a judge of the District Court for formal interrogation before a judge of the District Court. The record of any such interrogation is made admissible in subsequent proceedings. This section would be very useful for the investigation of organised criminals and drug traffickers where a formal interrogation could be held in a supervised setting before a District Court judge.

Section 15 abolishes the existing rule to the effect that no guilty inference can be drawn from the silence of a suspect in circumstances where he fails to mention any fact relied on in his defence at the time he is charged or at a time when he might reasonably be expected to mention the fact. An inference permitted under section 15 cannot, by itself, amount to sufficient evidence to convict an accused person. It can only be used to corroborate other evidence; in other words, his failure to mention a fact, or his silence, is not conclusive.

Section 16 renders an accused person on a trial of indictment liable to be called upon to give evidence at the end of the prosecution case and allows a jury or the court hearing the case to draw an adverse inference from the failure of the accused person to give evidence when called to do so. The adverse inference, cannot of itself, be sufficient grounds for conviction but it can be regarded as corroborative of other evidence against the accused.

Section 17 provides for the forensic examination of persons who have been remanded in custody for the purpose of taking bodily samples, blood samples, hair samples, saliva samples, or scrapings or fingerprints or photographs. It is rather disgusting.

It is all part of the day's work.

Section 18 abolishes the archaic distinction between penal servitude and imprisonment and provides that, in future, courts will only hand down sentences of imprisonment. This archaic notion of penal servitude goes back to the time when people were deported to foreign lands where they had to endure hard labour and so on. It is a distinction which has no value in a modern system.

Section 19 requires the Director of Public Prosecutions to inquire about whether a person awaiting trial or sentence before the Circuit Criminal Court is a person to whom section 11 of the Criminal Justice Act, 1984, applies and to inform the court before a sentence is imposed of the outcome of such inquiries. The purpose of this section is to make section 11 of the 1984 Act, which requires consecutive sentences in the case of offences committed while on bail, more effective. The Law Reform Commission noted that section 11 was not being enforced by the courts to the extent that it was immediately after its enactment. The section also requires the court, when informed by the prosecution of a belief that an offence was committed while on bail, to inquire and to satisfy itself as to whether the provisions of section 11 of the 1984 Act have any implication. This is one reasonable amendment which could easily be made to our existing law and would go a long way to giving effect to the legislative direction given in 1984 in regard to consecutive sentences for offences committed while on bail.

Section 20 provides for the imposition of partly suspended sentences and designed to increase the deterrent effect of partly suspended sentences. It is envisaged that the courts might, say, in the case of a burglar, impose a four year sentence of which the last three years would be suspended for a period of five years after the conviction. That sentence would be hanging over the accused and act as an incentive not to reoffend while the suspensory period is in place.

Section 21 introduces into Irish law for the first time a power of recommendation on the part of a court imposing a mandatory life sentence in respect of a minimum period to be served by the accused. This section would normally mean that the facts of any murder case would be outlined to the court even though the accused was pleading guilty and even though the sentence was mandatory. For instance, in DPP v. McArthur, the facts of the murder of Bridie Gargan did not emerge at the time. If section 21 had been in operation then, the people would have known the facts and the Minister would have had the benefit of a public recommendation as to the term of imprisonment to be served by the person convicted. The Bill seeks to make changes to the functioning of our prison service. No debate or Bill dealing with the system of justice would be complete without an analysis of the current prison system.

There have been many reports on the prison system. The Whitaker report in 1985 was an in-depth examination and it is noticeable that its recommendations have not yet been fully implemented. For the first time this Bill introduces central elements of that report, including a separate prison service office and an inspector of prisons. The patchwork of Victorian statutes governing the current prison shambles is replaced by a modern regulatory framework.

New statutory duties are placed on the State to ensure adequate prison spaces and periodic qualitative and quantitative reviews of the prison service. It is well known that our prisons have become a costly shambles despite the best efforts of the dedicated people who work in them, from governors to prison officers and the probation service. The visiting committee of Mountjoy, the biggest prison, described it as a time bomb waiting to explode. Up to 600 men and women are housed in this jail in appalling conditions of overcrowding and limited sanitary facilities. Our biggest jail has become awash with drugs and despair.

Exact numbers are unclear but it is recognised that up to 40 per cent of prisoners in Mountjoy are intravenous drug users, hopelessly addicted offenders in respect of whom no serious effort is made either to deal with their addiction or to attempt rehabilitation. It costs approximately £44,000 a year per prisoner and that is just maintenance. It does not relate to the capital cost.

The cost of the prison service has increased by 50 per cent over the past five years although the prison population has increased by only 7 per cent. In other words, an extra £33 million has been spent on servicing an extra 160 prisoners. Something is radically wrong with a system which lurches from crisis to crisis, which has long lost any aspiration of rehabilitation and which merely contains the wretched people who have been committed to Mountjoy to serve sentences which, due to shortage of space, they will not complete. Much is said about the revolving door and I will deal with this aspect later in relation to temporary release and the abuse of that system. There has been a revolving debate on the prison system for the past 20 years. Nothing has changed; it has truly been paralysis by analysis. For example, the annual reports of prisons are regularly out of date.

The Minister constantly says that more prisons are not the solution. I strongly disagree. Prison space is a key factor in any Government response to current crime levels. Space is a vital part of the solution over which the Minister's Department has control. This is the ingredient on which many of the other aspects of rehabilitation depend. Without space, the other aspects of the multifaceted response cannot even begin. It is like hoping to have a tourism industry without sufficient hotel rooms. Our prison system is held in disrepute among the criminal class. They treat it with contempt and they do not fear imprisonment; they count on premature release.

The Bill introduces new statutory duties on the State to ensure adequate prison spaces, in other words to know the extent of the problem and to devise strategies in that regard. In 1985 the Whitaker report, the only comprehensive study of the penal system in Ireland, described Mountjoy as old and in very poor condition. Its space for work, education and prisoners' welfare was totally inadequate. The report suggested Mountjoy was out of line with the rest of the civilised world. Millions of pounds have been spent in our name on the prison over the years. However, there have been various misallocations and decisions made in terms of spending money because there was never enough.

Mr. John Lonergan, the governor of Mountjoy, is on record as having said:

If we had a say in how funds are utilised, this prison would be much improved. We are consulted initially on what our requirements are but after that the Department takes over and we have no involvement whatsoever.

Decisions are made by civil servants, but as they are out of touch with the reality of prison life, money is wasted by bad decision making. For example, £1.5 million was spent on improvements to the prison's kitchens. No serving facilities were included in the plans and this expensive new kitchen stood idle for a year. I wonder if it is yet in operation.

I will invite the Deputy for a meal soon.

Will the Minister open it after a year?

Another photo call for the Minister.

Will the Minister cook the meal? Whatever she does, she should not allow them to let her cook the meal.

I am a very good cook.

Another obvious error was the £2.5 million spent on refurbishing the women's prison at Mountjoy. When it was finished it was declared to be unsuitable for women and it now holds young offenders instead. At any one time we have no more than 40 female prisoners in Mountjoy. Three quarters of them are drug addicts, jailed for petty and persistent shoplifting to feed their habit. We are spending £44,000 a year per woman and there is no rehabilitation of any meaning to these women.

There was a costly installation of a time clock system which was designed to improve the productivity of the prison and reduce staff overtime bills. Basic conditions such as sanitary facilities are appalling. At present, Mountjoy holds 619 prisoners and there are only 20 showers for them. Inmates shower on a rota basis throughout the day.

Wheatfield prison, the state of the art modern jail, is in marked contrast. However, due to overcrowding, its original purpose to house young offenders is now forgotten and it houses prisoners of all ages. Electronic technology, which was meant to cut costs in this new prison, has not operated well and there are outrageous rumours that it costs £8 million in maintenance every year, by far the highest maintenance bill of any of our prisons.

We have one of the highest ratios of prison officers to inmates in the world. Why? So many inmates abscond from our open prisons that they have become a source of fear in their localities. Why? Why have we recently heard of criminal prosecutions against prison warders being dropped because of a threat of strike? Who is in charge?

There is no paroles and remissions board. In 1985 the Whitaker report called for the establishment of an independent prison agency and this is proposed in the Bill. Section 25 establishes a new executive office, to be called the prison service, to carry out the day-to-day running of the Department of Justice in respect of our prisons, as suggested by the Whitaker report. Under this section the Minister retains the right to give directions to the prison service in relation to matters under its control and obliges the prison service to comply with the Minister's directions. Importantly, the Minister is still accountable to Dáil Éireann and Oireachtas committees in respect of the management and control of the prisons. However, the prison service will be under the day-to-day management, supervision and control of a director of prisons. Section 27 provides for the appointment of an inspector of prisons, as also recommended in the Whitaker report.

Another section of the Bill deals with pardons, remissions and temporary release of prisoners. The executive power of commutation of the Minister for Justice, set out in section 23 of the Criminal Justice Act, 1951, that is, the power to remit fines and sentences executively, has been controversial in recent years. I was shocked when I realised such a facility existed. I only realised this was the position when I was elected to the Dáil and many members of the public have no knowledge of such a system. The power of remission is purely executive and in common with all executive powers, it has a capacity for abuse.

A number of years ago a courageous District Court judge, Judge Brennan, was so infuriated by what he saw as an abuse of the ministerial executive power in this regard that he took a successful constitutional action against the then Minister in exercising her powers under section 23 of the 1951 Act. The court found on 23 April 1995 that the Minister's powers had not been exercised correctly in that there were no exceptional or unusual circumstances in any of the four test cases considered by the court. The court further stated that this improper exercise of the Minister's powers had created a parallel system of justice.

There is a need for the powers under section 23 of the 1951 Act to be exercised sparingly and in exceptional circumstances and they should not be used as a parallel system of justice. The High Court found, as a matter of fact, that approximately 5,000 petitions were received each year in the Department. The court considered the year 1993, having been told the figures for any of the years from 1990 onwards were not significantly different. In that year, the total number of petitions finalised was 4,050. The number of petitions refused was 1,767 and extension of time for payment was granted in 604 cases. Full remission was granted in 98 cases and partial mitigation of fines was proposed in over 1,500 cases.

Prior to this judgment, the Minister for Justice and many Deputies, who are fond of the petition system——

Many of them.

——fought hard to champion its use. I do not agree with it and it is clear that petitions were being processed administratively by civil servants and had almost become routine. The court which handed down the sentence was aware of all the extenuating circumstances but was not consulted, and petitions were often initiated before the appeals system had been gone through. There was no transparency about that; everything was done in secret.

This section requires the commutation to be notified to the court which imposed the penalty and the decision to be made public. They are reasonable proposals. The section is designed strictly to limit the use of remission in accordance with the recent court decision in relation to the powers of the Minister in this regard.

The Bill requires the prison service to fully account, by public register, for the use of this power of temporary release. When a prisoner is released on temporary release, that fact and the relevant details would have to be entered in a publicly available register within 28 days of the release. Section 33, which deals with temporary releases, seeks to introduce a degree of transparency into our temporary release system.

It is clear from replies to paraliamentary questions put by me to the Minister for Justice in September and November 1995 that she is presiding over a chaotic, unregulated temporary release régime which constitutes State indifference and recklessness as to public safety. In a written reply to a parliamentary question on 20 September 1995 as to the number of offenders who had reoffended while on temporary release, the Minister stated: "Such statistics could be compiled only through an examination of the individual records of several thousand offenders and this would involve the expenditure of a disproportionate amount of staff time".

It would appear nobody bothers, or dares, to record whether offenders reoffend while on temporary release. Nobody knows how many of the 3,564 people released in 1993, for example, and the thousands more since then, have reoffended and thereby breached the conditions of their release. Cases have been taken against the State by victims of offenders who committed the crime while on temporary release. This presents the Minister and the State with a huge potential for State liability for offences committed while on temporary release.

After much hounding by way of questions in the Dáil, the number of people unlawfully at large was eventually revealed to me on 9 November. Eight persons escaped from a closed institution; 228 absconded from open institutions such as Loughan House; 784 offenders who had been granted temporary release had broken their conditions of release and were, technically, deemed unlawfully at large. That is a total of 1,020. The Minister of State, Deputy Currie, who took questions that day sought to minimise these scandalous figures by pleading that the vast majority of those offenders were only categorised as unlawfully at large because of technical breaches of their release conditions or as a result of absconding from open institutions. He felt there was nothing to worry about and he stressed that open institutions accommodate less serious offenders, in other words, the public had nothing to fear from the 228 people who had escaped from open institutions.

A scheme of temporary release, based originally on worthy notions such as compassion, rehabilitation and the integration of prisoners into society, has now become a routine vehicle for freeing up space. No regard is had for public safety or public outrage at a particular crime. A sentence delivered in public following a public trial is basically undermined in private. We often do not even get to hear who has been released or the reason for that release.

One of the most offensive aspects of the current system is what is known in the jargon used by the Department of Justice as "unsupervised full temporary release". That is little more than unconditional release. Under this concept, a prisoner is released without having to serve any more of his sentence and without having to report to the Garda or to the probation service. In theory, the offender is obliged to enter into a condition to keep the peace and be of good behaviour during the period of the release and he can be brought back to prison if he breaches this condition. without the need for further court proceedings. The criteria applied in deciding whether to give a prisoner temporary release have never been publicised or debated in this House; they are simply departmental guidelines.

Twelve years ago, the Supreme Court held that the wording of the current legislation does not allow a temporary release to be suspended in circumstances where a person has been charged with attempted murder and possession of a firearm with intent to endanger life while on temporary release. The then Chief Justice warned that the legislation needed to be examined as a matter of urgency. Nothing has been done in that regard. There is a need to devise an effective and speedy way of getting prisoners who misbehave while on temporary release back into prison. This could be done by stating a maximum period of release and by introducing measures relating to transparency which are included in this Bill.

A modern system of criminal justice must seek to achieve rehabilitation and reintegration of prisoners into society. Time after time, those people who oppose radical measures brought forward on criminal justice reform by bleating about the fact that we must look to the causes of crime fail to see that the two objectives are not mutually exclusive. One does not rule out the other. We can look to the causes of crime — high unemployment, social alienation, juvenile delinquency and addiction — but our work on all these worthy measures need not postpone the delivery of effective criminal justice procedures to protect our citizens against crime. There are other goals in this debate such as deterrents, punishment, public safety and a regard for public outrage at particularly dreadful crimes. Effective law and order need not await the Government's analysis of the root causes of crime.

On Thursday next we will debate the first criminal legislation which this Minister has brought forward on law and order. I know it well. It was announced with great fanfare last July and on several occasions since then by press release. On the bail issue, we have had one step forward, two steps backwards, depending on the mood of the left wing component in the Government.

No amount of "get tough" measures will improve the position if we do not get the basics right concerning the detection, prosecution, trial and punishment of crime. This Bill addresses the real issues. I ask the House to address those real issues by giving this Bill a Second Reading.

I wish to commend Deputy O'Donnell for the work she has put into this Bill. I thank her also for recognising that a number of the issues she raised have been in existence for some time and for not depicting me, as Minister for Justice, climbing into a red suit with my underwear on the outside and taking on board——

The Minister is listening too much to Deputy Bhamjee.

——all the ills of the justice system.

Spare us.

She had the good grace to mention issues that existed when her party was in Government and in a position to do something about them. I thank her also for recogning the seriousness of these issues and the long-term changes that have taken place which, in some instances, had been overlooked. I am in this job, I am taking action and I will be judged at the end of my term in this office by the actions I took. When I have delivered on the many measures I announced, Deputy O'Donnell will have an opportunity to give her views on them, as I have no doubt she will.

Is the Minister Spiderwoman, Catwoman or Superwoman?

I can be a superwoman on occasions. The Bill is wide-ranging in its scope. There are some ideas worth developing, while other parts seem to be fundamentally unsound. Some of it inadequately pre-empts proposals the Government will bring forward and, for reasons I will explain, there must be grave doubts that it will achieve some of the benefits its proposer claims for it. One proposal seems to be glaringly unconstitutional while there must be doubts about the constitutionality of other parts of it.

The Bill contains certain proposals for dealing with bail which I will address in some detail later, but it is important that I deal with various comments made, including a report in one of last Sunday's newspapers, to the effect that the Labour and Democratic Left partners in Government are at odds with me on the bail issue. As the Taoiseach said today, those comments are fanciful nonsense. All the partners in Government are equally concerned about the problems with our bail laws and, I am sorry to have to disappoint the Deputies opposite, there will be no difficulty in our agreeing comprehensive and effective measures to deal with them.

Will there be a referendum?

When the Deputy has a chance to be in Government he will understand the rules attached to the principle of Cabinet confidentiality.

The Minister is being arrogant.

I thought I was being sarcastic. I will have to change my tone of voice. To those who like to speculate otherwise, irrespective of the true position, all I would say is that they should wait until the Government announces its proposals on this matter in the near future.

It is neither realistic nor effective to suggest that fundamental issues such as bail, the right to silence and sentencing policy — to give just some examples — can be dealt with effectively in a piecemeal or patchwork way, but that is largely what is being done here. For example, Part III dealing with bail, Part IV with criminal procedure and Part VII with pardons, remissions and temporary release are largely based on the provisions included in the Criminal Justice Bill, 1994, introduced by Deputies O'Donnell and McDowell, which was opposed by the then Government and Minister, Deputy Geoghegan-Quinn.

It was enthusiastically supported by Fine Gael which voted in favour of it.

I am giving the facts.

The Minister should give all of them.

In those circumstances while it might be accurate to describe some of the proposals in those sections as novel they are not new. Much of what is new in the Bill relates to the prison service, but it is hard to regard the central proposal that the prison service be established as an independent agency and at the same time be subject to direction on every issue by the Minister for Justice as little more than a legislative optical illusion.

It would represent a disservice to the community in general and victims of crime in particular to pretend that this Bill, through the use of some sort of legislative magic wand, could solve at a stroke the fundamental problems it purports to address. Like the curate's egg, it may be good in spots, but the Government has concluded that to proceed with it and try to amend it subsequently would not be a practical approach. To do so would needlessly delay and disrupt the comprehensive programme of criminal law reform the Government has under way. In bringing forward its proposals the Government will have full regard to what is included in this Bill the debate on which will be useful in informing its consideration of these matters.

Before discussing some of the detail of what is proposed it might be useful to inform the House of some of the major criminal law reforms I will bring forward in coming months.

Let me correct Deputy O'Donnell yet again. The drug trafficking Bill was not the first criminal law Bill. If the Courts and Court Officers Bill is not considered as effective legislation in improving the criminal law system, the Deputy will have to take some lessons from her colleagues who practice at the Bar.

Not in the area of law and order.

A new Criminal Law Bill will abolish outmoded distinctions in our criminal law and provide the Garda with a modern statutory code dealing with powers of arrest and entry into premises to effect an arrest and for changes including the abolition of penal servitude, hard labour and prison divisions. A Non-fatal Offences against the Person Bill will replace with modern provisions much of the Offences Against the Person Act, 1861. A Juvenile Justice Bill will represent the most comprehensive reform in this area since the foundation of the State. A Criminal Justice (Miscellaneous Provisions) Bill will free up gardaí from spending much time in the courts rather than on the prevention and detection of crime. A Fraud Offences Bill will tackle in a modern, effective and comprehensive way what is often referred to as "white-collar" crime.

These are all measures on which a substantial amount of work has been completed in my Department. For example, the Government approved the general schemes of the Juvenile Justice Bill and the Non-fatal Offences against the Person Bill. I expect to be able to publish the Criminal Law Bill in the next couple of weeks.

It was drafted 32 years ago.

In the time available it would not be practical to comment in detail on every section of this Bill. I am conscious that it deals with a number of issues which have been debated frequently in the House. Large parts of it were included in a 1994 Bill which was debated in the House in June of that year.

Part I deals with the prosecution of offences. The Government is satisfied that developments in this area will adequately address the issues raised in the Bill. Section 4 provides, in effect, for the establishment of a unified prosecution agency. I understand that the work and functions of the Chief State Solicitor's Office are being examined as part of the Strategic Management Initiative process in the Office of the Attorney General. In particular the work and functions of the Chief State Solicitor's Office in the criminal prosecution system and the question of a unified prosecution agency will be addressed by the Office of the Director of Public Prosecutions in the context of its Strategic Management Initiative. In addition, the Department of Finance has commenced a review of the structure and organisation of the director's office. Any decisions on a unified prosecution service will have to await the outcome of those initiatives.

As to the other sections of Part I, the Taoiseach has informed the House of the position on making an annual report by the DPP while the question of compellability is being dealt with in the Houses of the Oireachtas (Privilege and Compellability) Bill.

Part II contains a number of proposals on our bail laws. Examination of the Law Reform Commission report on the law of bail is nearing completion in my Department and I expect the Government will be in a position to make its decisions on bail in a matter of weeks. What is contained in the Bill is a good illustration of why it is important that a detailed and comprehensive review be carried out by the Government before it reaches conclusions on what is an extremely complex issue. The Deputy accepts that this is the case.

The main proposal in Part III is that when bail is being granted the bailsman should be required to become surety for the good behaviour of the accused while on bail and should be liable to forfeit the bail money where the accused commits any serious offence. The explanatory memorandum states that the constitutionality of binding persons over to keep the peace and to be of good behaviour has recently been upheld by the High Court and that the proposed amendment of the bail law would not require a reversal of the decision in the O'Callaghan case.

Notwithstanding that statement, it is by no means clear that there would not be constitutional problems with what is being proposed. The explanatory memorandum may give the game away when it states that under this proposal bail would be much more difficult to obtain for habitual criminals and likely re-offenders. In the light of what the judgment in the O'Callaghan case said about bail not being preventive and that the question of whether a person was likely to turn up for trial was the determining issue, the imposition of conditions on bail that might make it more difficult to obtain, particularly where those conditions relate to the possibility of future offending, might give rise to constitutional difficulties.

I presume the High Court case referred to in the explanatory memorandum is the case of Gregory and others v. District Judge Windle and others. It is, at the very least, doubtful that what was decided in that case — which related to persons convicted of an offence — is authority for the proposition that it would be constitutional to require a bailsman to become surety for the good behaviour of an accused while on bail.

In its report on the law of bail the Law Reform Commission considered the question of estreatment of bail if the accused commits further offence and concluded that it was difficult to see how this would be effective in preventing the accussed from committing such further offences which was presumably, the object of the exercise. It went on to say that such an approach diverted punishment from the accused and the fact that the courts were extremely reluctant to estreat bail in present circumstances would not encourage one to adopt this approach.

Part III deals with two main areas: preliminary hearing and the right to silence. I have informed the House that I am considering the issue of preliminary examinations and in doing so I will take into account the proposals in this Bill which, incidentally, I note differ from those set out in Deputy O'Donoghue's Criminal Procedure Bill, which appear designed to abolish preliminary hearings. The explanatory memorandum indicates that the purpose of section 13 is to permit speedy trials in cases where the prosecutor is satisfied that preliminary examination would be redundant on the basis that there would be, as a matter of certainty, sufficient evidence to have the case tried on indictment. The section gives absolute discretion to the DPP and there is no reference to the criteria on which he might decide to exercise this power.

The explanatory memorandum does not refer to the fact that section 13 provides what to some extent might be regarded as the equivalent of a preliminary hearing in that it allows an accused to bring a pre-trial motion before the court of trial on the grounds that, had the charges been the subject of a preliminary examination, the accused would not have been sent forward for trial. I would be interested to hear the views of Members on this subject, and specifically whether, if preliminary hearings were to be abolished, it would be better to do so absolutely, as Deputy O'Donoghue proposes, or adopt the hybrid approach contained in this Bill.

The approach to the right to silence taken in this part of the Bill is also something of a hybrid in that it envisages a procedure whereby the Garda could seek to have a suspect questioned by a judge of the District Court while at the same time allowing for the drawing of inferences from a failure to answer questions put by members of the Garda Síochána. I have great difficulty in seeing why, if it is provided that inferences can be drawn from a failure to answer questions put during the course of Garda questioning, there is a need to provide a separate procedure to allow the courts to become involved in the questioning of suspects. On the face of it, the proposals with regard to the courts, leaving aside objections of principle which may arise, would appear to be both radical and redundant, to coin a phrase, if Deputy Michael McDowell will allow me. He will recall his comment at the foundation of his own party.

I do not believe it is possible to address properly such a fundamental issue as the right to silence through the inclusion in a Bill of the kind before the House this evening of a couple of sections of the type proposed without undertaking a full analysis and debate of the complex issues involved. I have already informed the House that I am looking at this issue, especially in the context of recent developments of the jurisprudence in this area under the European Convention on Human Rights. I do not believe that an answer lies in simply taking an off-the-shelf legislative provision from another jurisdiction. I note that at one point section 13 of the Bill refers to police officers rather than the Garda Síochána, which it refers to in almost every other section. This alerted me to the belief that it may have been taken from the legislation of some other jurisdiction.

Part V of the Bill contains a number of measures with regard to sentencing. I have already referred to the Criminal Law Bill which I will be introducing shortly and which will abolish the sentence of penal servitude and the distinction between felonies and misdemeanours. As to the other provisions in Part V relating to sentencing generally, this is not an area of law that lends itself to a piecemeal approach. The House will be aware that, some time ago, the Law Reform Commission published an extensive consultation paper on sentencing policy. The sensible approach would be to await the commission's report on the matter before proceeding with the legislative change in this area.

Deputy O'Donnell referred to section 19 obliging the DPP to make the court aware that a person might be subject to section 11 of the 1984 Act. The act of making the court aware will not solve the problem that was highlighted in the Law Reform Commission's report. As it stands, consecutive sentences are given, but some judges decide on the totality of sentences and themselves suspend the first sentence, leaving the consecutive sentence in place when they decide that the totality of two or three sentences is too much for the crimes at issue. The problem lies in the way they are interpreting the legislation. To have the DPP advise them to beware that somebody is subject to section 11 will not, of itself, change what is happening in practice.

What about the revolving door?

We are endeavouring in my Department to ascertain if it is possible to amend the 1984 Act so that there will not be this kind of latitude for the judges to make this decision themselves.

With regard to Part VI of the Bill dealing with prisons, I wish to extend an invitation I gave in the House some time ago to the two spokespersons for Justice on the other side. I am aware that Deputy O'Donoghue has begun to discuss with my Department the means of taking up the invitation. I am not aware that Deputy O'Donnell has done so and I warmly invite her to accept my invitation to visit Mountjoy Prison and any other prison.

I have visited Mountjoy Prison.

The Deputy may have done so, but not since I became Minister. I wish to invite her in my capacity as Minister. It would help in highlighting some of the things that have changed since the comments I made in the House to which the Deputy referred.

The proposals contained in this part of the Bill cover three main areas: the provision of accommodation, the transfer of control of the management of prisons to an independent agency and the regulation of the powers of the Minister for Justice with regard to the management of prisons, disciplinary matters and legislation. The thrust of this part appears to be towards a greatly enlarged prison system, nominally under the control of an independent agency made up almost entirely of the existing staff of the Prison Service, while retaining any real power for the Minister for Justice.

Part VI commences by proposing to impose on the Minister for Justice a duty to build, maintain and keep open sufficient prison space to accommodate those sentenced to imprisonment by the courts for, as the Bill states "...the normal duration of the terms imposed on them..." and to provide accommodation for persons remanded in custody, again as the Bill states..." in so far as they are not accommodated in prisons". Sections 23 and 24 provide that accommodation requirements be assessed on a three-yearly basis and that the accommodation needs of young offenders be met. There is very little new in this.

It was unfortunate that Deputy O'Donnell should attack civil servants who are implementing prison policy in the Department.

She never attacked them.

I find it unwarranted. They are doing an extremely difficult job under extremely difficult circumstances. I hoped that the Deputy would understand that civil servants in the Department of Justice are doing a very honourable service for the State.

The comments the Deputy attributed to Mr. Lonergan are no longer relevant in the sense that there is now a system of close liaison between prison governors and staff and the planners in my Department regarding the provision of any new services in the prison. This change has occurred recently. The Deputy was right to highlight what Mr. Lonergan said but it is thankfully no longer relevant. A governor's committee is also in place that decides on priorities for work in the prisons.

So there are no problems.

Existing legislation already imposes a duty on the Minister for Justice to provide custodial accommodation. What is new is the inclusion of the phrases "... for the normal duration of the terms imposed..." with regard to the accommodation of sentenced prisoners, and, "...in so far as they are not accommodated in prisons" with regard to remand prisoners. If I interpret these directly I take it to mean that it is intended that sufficient accommodation should be provided to allow for all sentenced persons to serve the full term of their sentence to normal remission date and that remand prisoners should be accommodated in a separate institution from sentenced prisoners. While I share the obvious concerns regarding the growth of ad hoc releases in the prison system, which may have prompted these proposals, I have a number of problems with them.

The proposal with regard to sentenced persons undermines the discretion of those charged with managing the prison system in providing planned and programmed early releases from custody. Very often, and almost in every case, the papers regarding the release of prisoners contain a recommendation from prison governors and sometimes from the Garda. I also receive a large volume of representations from Members of this House and the other House and from councillors and public representative making a case for granting prisoners a period of temporary release or for a shortening of their sentences. It is wrong to imply that only officials in my Department deal with this issue. Others are also concerned with a penal system that will allow some kind of structured early release programme. The development of a structured programme of release of suitable offenders, under the supervision of the probation and welfare service, is a cornerstone of prisons policy, as outlined in the policy document The Management of Offenders — A Five Year Plan and is an important element in eliminating unstructured temporary releases. I am not denying that extra prison places are required. The package of measures to combat crime, which I announced earlier this month, included the provision of 278 extra places in the next 18 months.

Even if resources were unlimited — we all know they are not — early release arrangements, or parole, are viewed internationally as an essential element in progressive sentence management and, therefore, a certain level of early release would always be justified. The legislation allowing for that was introduced in 1960. A temporary release system with supervision provides a flexible system of parole and offers scope for the management of offenders in the community with little risk to the public and enhanced prospects of leading offenders towards a more constructive lifestyle in the community. This is a proper and measured way forward for the prisons system. However, it would be naive to pretend that the system of early release because of pressure on space is as I or any other Member would wish. It is not as effectively supervised as I would like, not because of the quality of the people carrying out the supervision, but because the number and nature of people coming out of our prisons does not allow for a proper supervision system. The measures I have put in place will address this problem, but I do not want to mislead the House. It will take some time to bring about improvements. I will do whatever I can while in office to make the necessary changes and I will consider suggestions from Deputy O'Donnell in that regard. It would be native of her to believe that a proper supervision system would ensure that all habitual criminals would turn into angels and not commit further offences when released. We must be realistic when dealing with this problem and not pretend that people are different from what they are.

The proposal to house remand prisoners separately from sentenced prisoners has some merit. Arrangements regarding the accommodation of all classes of prisoners are under constant review in my Department and will be given particular attention in the light of the extra prison spaces to be provided as part of the package of measures to combat crime which I have already mentioned. The arrangements for remand prisoners will be included in this review. They can best be handled on an administrative basis and placing them on a statutory basis would remove a significant element of flexibility in the use of prison resources.

The remainder of this Part of the Bill deals with the Establishment of an independent agency to manage the prison system, to be called the prison service, and a definition of the role and powers of the Minister for Justice in relation to prisons.

My first impression of these proposals is that they are potentially conflicting. On the one hand, sections 25, 26 and 27 outline the transfer of the maintenance, management and control of prisons from the Department of Justice to a separate executive office — namely, the prison service — under the control of a director and the appointment of an inspector of prisons.

On the other hand, section 25 (2) and sections 28 and 29 grant the Minister for Justice powers to not only give directions to the proposed prison service, with which it would be bound to comply, but also to make regulations covering all aspects of the ongoing management, control and supervision of prisons. Therein lies the dilemma of conflict.

Section 25 (3) prescribes that the Minister for Justice shall continue to be the authority answerable to the Oireachtas in respect of the prison system. These provisions do not represent a change in the powers currently vested in the Minister for Justice. It is difficult to know what level of independence the proposed prison service could have in practice with these powers remaining with the Minister.

In any event, the establishment of a prisons board is already under consideration in my Department. As far back as June 1994 the policy document, The Management of Offenders — A Five Year Plan, contained a reference to possible structural changes, including consideration of the recommendation of the Whitaker report of 1985——

The Minister came out against that.

——for setting up a prisons board as an executive agency to be responsible for the day to day management of the prison system with powers necessary for that purpose transferred to the agency from the Minister for Justice.

The Minister came out against Whitaker.

The document did not exclude the possibility of such a board being set up at some stage, depending on the case being made for it at the relevant time, but it opted at that stage for a new offender management advisory committee with specific membership drawn from the Department, the prison service and persons outside both systems and a specific agenda.

Is the Minister changing her mind?

I am always prepared to be innovative and open minded about good ideas.

The case for a prisons board for the management of offenders was reviewed early last year in the light of the commitment in the document, A Government of Renewal, to an "examination of the establishment of a prisons board to manage the day-to-day running of the prisons" and a reassessment of the capacity of the prisons division, as at present structured and resourced, to absorb the workload and responsibilities which are involved in the implementation of the five year plan.

The Department considered the whole position afresh and discussed proposals with the Department of Finance for the creation of a board which would run the prison service, possibly on an agency basis. Discussions with the Department of Finance on these proposals are ongoing. Issues which arise are very complex and will need very careful consideration. A proper balance will need to be achieved in regard to the administrative advantages or disadvantages of such a structure, the degree to which it would exercise autonomy in decision making in relation to prisoner and staff issues and the staffing structure.

The appointment of an inspector of prisons will also be considered in this context. The five year plan recommended that such an inspector be appointed.

The final section of this Part of the Bill, section 30, deals with the amendment of prison statutes. It proposes to allow the Minister for Justice, by regulation to repeal, replace, amend or adapt any of the provisions of the various Acts governing the prison system. This is an unusual provision, to say the least, in that it purports to enable a Minister to amend primary legislation by ministerial regulation. I know of no democratic administration that grants a Minister such powers and I would not wish to have such powers. In any event, the proposal is glaringly unconstitutional.

That is interesting because many of the statutes provide for that.

Yes, but not in the way provided for here.

Part VII deals with pardons, remissions and temporary release. I do not have the time to go into the detail of these proposals. They were included in the Criminal Justice Bill, 1994, and I support their rejection by the then Minister for Justice essentially on the grounds they were not in the public interest.

The Minister voted for them.

I commend Deputy O'Donnell, assisted by Deputy McDowell, on her efforts in drafting the Bill. What is said during this debate will be considered carefully in the context of the Government bringing forward its proposals, but for the reasons outlined I cannot commend the Bill to the House.

I join the Minister in commending Deputy O'Donnell on introducing this Bill. It represents another attempt by Members to address the issues of crime and criminal law reform in the absence of any policy emanating from the Government. That is unfortunate but true. Until the publication of the Criminal Justice (Drug Trafficking) Bill, 1996, there was no legislation emanating from the Minister's Department to tackle the crime problem. It is ironic that in the final analysis there was no need for the Minister to introduce that legislation because the Fianna Fáil Bill, which preceded it, is far superior.

Not in my view.

It is apparent that there is cross-party consensus that certain steps, including a referendum on the bail laws, are necessary to restore a fair balance to the criminal justice system. The will of the majority of Members to take measured steps to curtail the prevalence of crime is being thwarted by the exercise of a political veto by a small minority of Members. It is time to identify that minority and to measure the political ransom they are extracting.

That is not what I said. What the Deputy read in the papers is rubbish.

Where is the referendum promised by the Minister last year?

The Minister for Justice said that what I read in the papers is rubbish.

With regard to that issue. Does the Deputy accept everything they say?

I will always accept the word of a reputed journalist who says he was speaking to a Labour Minister who said——

It was not my interview.

——that in so far as certain Labour Ministers and Labour backbenchers are concerned——

Is the Deputy calling me a liar?

The Deputy without interruption, please.

——the Minister for Justice would be very well advised to take off her blindfolds and/or her blinkers——

If the Deputy is calling me a liar he should say so.

——and recognise the truth when it hits her in the face. Those members of the Government who ply parliamentary correspondents with unattributable quotations and off-the-record briefings in their quest to champion the cause of people accused of crime should have the courage to step forward from the shadows and expose their views to the light of open debate.

The Deputy is saying he believes them.

I invite the leader of the Labour Party to banish his political banshee, Mr. Fergus Finlay, and to step into the daylight and express openly and publicly what he has dispatched Mr. Finlay to say furtively and privately. The Tánaiste and Minister for Foreign Affairs is exercising a veto on the Government holding a referendum on bail. Each time the Minister for Justice has sought to raise the issue for public debate the Tánaiste has dispatched his political assassins. In the Friday, 2 February edition of The Kerryman——

Does it mention the Deputy?

——the headline states: "Tánaiste calls for vigilance, not panic, in response to crime wave". Fortunately I am also a Kerryman and I was able to read at first hand precisely what the Tánaiste said in that article. He said:

One suggestion which has been made is that bail should be denied to people who might be likely to commit crimes while they are on bail.

That is the kernel of the issue because, as the Minister and the Tánaiste well know, that would require a constitutional referendum. He went on to say:

Bearing in mind that everyone is innocent until proven guilty [everyone agrees with that sentiment] would it not be better to consider seriously an alternative approach to make absolutely sure that there will be serious and major extra penalties for any crime committed while on bail. This could be done, for example, by changing the law to make any abuse of bail a crime in itself and to ensure that any sentences imposed in respect of such abuse would be served consecutively rather than concurrently.

We now know the truth.

The Deputy cannot talk, given that his party has not included a provision for a referendum. The same happened in 1994 when it shirked going that far.

Being of the opinion——

The Deputy's party did not have the guts to go that far.

Is the Minister to persist in interrupting?

Acting Chairman

Deputy O'Donoghue is in possession.

That article is in direct contravention of the words of the Minister for Justice——

No, it is not.

—— who spoke so eloquently on the "Farrell" programme on RTE in March 1995. On that occasion she said there would be a referendum on bail. What she meant by that is that it would be made possible for a judge to refuse bail to a person if he was likely to commit a criminal offence which would also be an indictable offence, if admitted to bail. The Tánaiste gave the Minister her answer in The Kerryman on 2 February last and the unattributable source in Mr. Kevin Moore's article in the Sunday Independent last Sunday confirmed that view very well.

Is he a friend of the Deputy? Does he know him?

Each time the Minister sought to raise the issue for public debate the Tánaiste has dispatched his political assassins.

We know all about it.

A concerted policy of press manipulation and corridor cudgelling has been employed by the Labour leader and his agents not only to veto the referendum but also to stifle any public debate. If there are sound and rational reasons against holding such a referendum, the Tánaiste should come into the House and enumerate them. If the public interest is being well served by the criminal justice system the Tánaiste should come into the House and defend it. If he has problems with the Minister for Justice — and all the soundings seem to indicate that he has — then we would appreciate it very much if he would say so to her face.

The use of publicly funded advisers by one member of the Government to undermine another in the corridors of this House and the public press is a disgrace.

On a point of order, is it appropriate for a Deputy, having named a person outside the House, to use words such as "assassin" and attribute certain things to him?

The phrase used was "political assassins".

The Deputy has previously intervened to protect people outside the House and he might do so again.

He is inside the House.

During the time I have been in the Chair I have not heard any reference to a person outside the House.

Is everything forgotten when there is a change in the Chair?

The Minister has made her point.

Many things change when there is a change of Minister for Justice.

Like the time a Fianna Fáil Minister was in office and not very much was done.

The Member in possession without interruption, please.

The Tánaiste's obstinate refusal to contemplate change or a debate on change in the system of criminal justice is a veto on progress, a veto which strengthens the hands of criminals and weakens society. I call on the Tánaiste and Minister for Foreign Affairs to practice what he preaches and to initiate a public debate on his view that the current bail laws are adequate. Nothing could be fairer than that.

It would be remiss of me not to point out that there was a time when members of Fine Gael would not have stood for the Machiavellian ministerings of the Tánaiste. Men like Paddy Lindsay would have used rich and descriptive words to describe his political behaviour which would have eaten away the facade of political beautyboard and revealed the true Tánaiste, the furtive and whispering Tánaiste whose pack of political rottweilers has silenced the Fine Gael flock.

The Deputy is surpassing himself tonight. He deserves ten out of ten.

It appears that the days of men like Paddy Lindsay are over and that Fine Gael is now content to operate as the Tánaiste's political poodles. Men like Liam Cosgrave and James Dillon would not have countenanced the permanent badmouthing of such a political butcher, but they belong to the age when Fine Gael believed in the need for law and order. That day is gone too. Fine Gael is now no more than a pedestal for the Tánaiste to pose on and it appears content with the trappings rather than the substance of office. With hindsight, it is clear that the Taoiseach ought to have accepted the offer of a rotating Taoiseach——

I notice the Deputy is very silent on Deputy Collins, Commissioner Flynn, Deputy Burke and other former Fianna Fáil Ministers.

I did not interrupt the Minister.

I hope his silence does not mean he thinks they did much.

The Deputy without interruption, please.

If the Taoiseach accepted the offer of a rotating Taoiseach he might even occasionally have managed to implement a Fine Gael policy. Until such time as Fine Gael is prepared to stand for something which is not for sale the Tánaiste will continue to have a veto over every Government Department and all necessary legislation despite the wishes to the majority in the House.

In this context I wish to refer to the leader of that other band of nihilists. It would be entirely inappropriate and remiss of me if I did not mention the leader of Democractic Left. Part III of the Bill introduced by Deputy O'Donnell reproduces in slightly altered form some of the provisions of the Criminal Law (Bail) Bill, 1995, which we introduced to the House last year.

It is exactly the opposite.

I can read; it is not the exact opposite.

The Deputy's party wants to abolish it.

They represent now, as they did then, sensible legislative changes within the existing constitutional framework. They represent an incentive to an accused person to be law abiding while awaiting trial and an incentive to a surety to guarantee the good behaviour of an accused. In introducing our Bill to this House on 3 May last, I stated, column 653 of the Official Report:

There is a widespread belief that our criminal justice system does more to protect the perpetrators of crime than to deter them. The flourishing body of jurisprudence on the rights of persons charged with criminal offences has all but eclipsed the sad plight of the victims.

Sadly, that perception is more pronounced today than ever before. The Minister might like to listen to what she said at that time, even if she does not wish to be confronted by reality.

Why did Deputy Geoghegan-Quinn not accept the Bill in that case?

(Interruptions.)

This is disorderly. Let us hear the Deputy.

The Deputy should not rewrite history. Deputy Geoghegan-Quinn used those terms when she was a Minister.

Every Member in speaking in the Debate——

(Interruptions.)

I am sure the Minister wants to assist the Chair in the aspiration that orderly debate obtain. Deputy O'Donoghue, without further interruption from either side.

Speaking on the same day in the debate on that Fianna Fáil Bill, the present Minister for Justice said, column 667 of the Official Report:

Every Member of this House knows people who have suffered from crimes committed by persons on bail. The number of crimes committed by persons on bail has increased from 2,494 in 1990 to 4,416 last year.

May I again remind the Minister for Justice that in or around the month of June 1995 she received the Garda Commissioner's report on crime for 1994? Those figures were made available to her as Minister for Justice; she was the first Minister for Justice; to receive them but she did not publish the commissioner's report until December 1995. Subsequent to making the aforementioned statement, the Minister received the report of the Law Reform Commission which she kept for a number of months and published on the eve of the debate last autumn on the Fianna Fáil-introduced Fifteenth Amendment to the Constitution Bill, 1995.

I must seek your indulgence, a Leas-Cheann Comhairle. That is untrue and Deputy O'Donoghue knows it. The Law Reform Commission report goes to the Attorney General's Office. The Attorney General sends it back to the Law Reform Commission and publishes it. I have no hand, act or part in it and if the Deputy continues to persist with that, I will have to ask the indulgence of the Chair to ask him to withdraw anything that implies some wrongdoing on my part. I plead with you, Sir, not to give in to that kind of untruth being told by Deputy O'Donoghue. I have explained it to him three times already but he seems dense enough not to accept my explanation. He knows it is not true but he keeps saying it.

My understanding of the position is that the information contained at the front of the Law Reform Commission report states that it was received in the Attorney General's Office in August 1995.

And then sent back for publishing.

By a remarkable coincidence——

It had nothing to do with me and the Deputy knows it.

Then, on the eve of the publication of Fianna Fáil's Fifteenth Amendment to the Constitution Bill, the Minister's Law Reform Commission report unveils——

The Deputy is an idiot if he thinks it is possible to publish a report in that space of time.

Is the Minister saying that was a coincidence?

The Deputy is an idiot if he thinks a report can be published that quickly.

(Interruptions.)

Order, Minister please.

A Leas-Cheann Comhairle, you are utterly unfair to this side of the House in the way you continue to support the Member on your side of the House.

The intemperate language of the Minister is not——

I will continue to say that to you if you do not tell them to stop giving out.

Not in this disorderly fashion, Minister. Let us have the Deputy please.

I will if you do not support me.

Any suggestion that the Chair is anything but impartial in this matter is totally unacceptable. Let us not have any further interruptions from either side.

Nobody will accept that it was a coincidence that the Minister for Justice produced the Law Reform Commission report on bail on the eve of Fianna Fáil's Bill appearing.

The Deputy is an idiot. He does not understand.

The truth is this was an attempt to bury the Fianna Fáil Bill and the only thing——

On a point of order, is it in order for another Deputy to——

Deputy, resume your seat. We have very little time left. The Chair has already requested that intemperate or unparliamentary language and terms not be used.

It may be true to say that the Minister for Justice, by publishing the report on the occasion in question, helped to bury the Fianna Fáil Bill at the time——

I did not publish it. The Law Reform Commission published it.

The Minister should listen to what the Deputy is saying.

——but I can tell the Minister for Justice that Fine Gael's reputation for law and order was buried on the same occasion. The Fianna Fáil Bill was designed to give the people their say on the present bail laws. Its passage was vetoed——

The Deputy is dense.

(Interruptions.)

I have had enough personal slagging from that side of the House not to return some of it. The Leas-Cheann Comhairle is not protecting me.

The record will show that no derogatory statement has been made against the Minister in my presence.

The Deputy implied that I hid a report and published it in a way that was underhand in order to undermine some work he had done. I say again that the publishing of Law Reform Commission reports is not a matter for the Minister for Justice; it never has been, it never will be. It is a matter for the Law Reform Commission to publish such reports. If Deputy O'Donoghue cannot understand that I will get Mr. Justice Hederman the person who chaired that commission, to write to him.

(Interruptions.)

The Deputy should be allowed to complete his contribution.

That Bill was designed to give the people of Ireland their say in the present bail laws. Its passage was vetoed by the Tánaiste.

I recognise the Minister's determination to hold a referendum. I believe that when she told this House on 3 May last that "All the advice available to me is that any substantial and effective changes require a constitutional amendment", she spoke the truth. I trust that the Minister is as disturbed as every other Member of this House to find a Labour Minister, as usual swathed in the cloak of anonymity, quoted in last weekend's Sunday Independent as saying:

This means that the Government is preparing the ground to drop the referendum idea. You can take it that any proposal adopted by the Cabinet will be exclusively legislative.

The Minister is right in her belief that a referendum is needed; her colleagues in Fine Gael are right in their desire to hold a referendum. The Tánaiste exercises a veto which he does not have the courage to defend in public. This is the new "Spring factor", an opposition to crime prevention legislation which he is not prepared to defend publicly. It is the "Spring factor" which will operate in the next general election to catapult this Government from office.

Do I have ten minutes tomorrow night, Sir, to complete my contribution?

You will have seven minutes tomorrow night.

We will not descend to the derogatory abyss to which the Minister has descended tonight, either tonight or tomorrow night. The Minister informed this House in May 1995 that she had instructed her officials to work on forms of wording which an appropriate amendment to the Constitution might take. I invite her to publish their completed work, irrespective of the wishes of the Tánaiste. Bring the debate to the people and sound argument will prevail.

Let the Tánaiste provide substance rather than slur for his defence of our present bail laws. Let him leave the shadows and face the public. I invite the Tánaiste to abandon his role as a gossip columnist's tout and to behave like a democrat. I ask him to come into the light and speak for himself. He should send his puppet, Mr. Finlay, back to his vault. Democracy is conducted in public, not in ill-lit corridors.

Care should be exercised in naming persons outside the House. They are not here to defend themselves.

I invite the Tánaiste to tell us which Minister announced the veto to the Sunday Independent. Did he do it with the Tánaiste's authority or was it the Tánaiste speaking in the shadows what he lacks the courage to say in public?

Part IV of the Bill is a well meaning attempt at reform of the cumbersome criminal procedure set out by the Criminal Justice Act, 1967. It recognises that the system of depositions envisaged by that Act has no place in the late 20th century.

Debate adjourned.
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