Dáil Éireann debate -
Wednesday, 17 Dec 1997

Vol. 485 No. 3

Transfer of Sentenced Persons (Amendment) Bill, 1997 [ Seanad ]: Committee and Remaining Stages.

SECTION 1.

Dr. Upton

I move amendment No. 1:

In page 3, between lines 12 and 13, to insert the following:

"(a) in subsection (4) after ‘remission of sentence accrued in the sentencing state,' to insert ‘and such remission of sentence as would be likely to accrue if the sentence were to be served in that state, provided that such remission would be at least as favourable to the person transferred as the remission which would apply to a similar sentence in the State,'.".

As I understand the provisions in the Bill, there is a considerable disincentive for prisoners to return to Ireland because of the attitudes and positions adopted here and in the UK toward the remission of sentences. In Ireland the tendency is to remit one quarter of a sentence while in the UK one third is remitted. This amendment seeks to remedy that disincentive and remove it.

In effect, the amendment proposes that prisoners who return to this country under the provisions of the Bill would be enabled to carry the remission entitlements or expectations that would have accrued or have been accorded to them in the United Kingdom. This seems reasonable and I hope the Minister will be favourably disposed to accepting the amendment. It appears to deal with an unfortunate anomaly which arises from the different attitudes toward the remission of sentences in Ireland and the UK. That anomaly is in conflict with the general spirit of the Bill and with British concerns about the transfer of prisoners.

Mr. Flanagan

I will support Deputy Upton's amendment unless the Minister can provide reassurance on this matter. The Deputy's statement was self-explanatory. This is an important issue in the context of the operation of the Bill.

On Second Stage, the Minister made the point that the Bill is an amendment of our legislation which was brought forward when Ireland signed the convention. Nevertheless, although not stated in the Bill, it appears the legislation is directed at relations between the jurisdictions of Great Britain and Ireland. In that context, as Deputy Upton stated, the question of remission is important.

Assuming the Bill is enacted this week and signed into law as soon as possible — perhaps before Christmas — has the Minister received assurances from his British counterparts that this legislation will clear all hurdles? Has the Bill, in draft form, been seen and commented upon by British Government officials and the Secretary of State? How does the Minister know that the enactment of the Bill will clear the existing hurdles, which were not anticipated in 1995 when the legislation was first dealt with in this jurisdiction?

I know the Minister will have a difficulty in this area because different jurisdictions are empowered to impose whatever remission arrangements they see fit. However, Deputy Upton raised an important point. Will the Minister provide assurances that the Bill meets that point?

Mr. Neville

I raised this issue on Second Stage. At that time I was not aware that Deputy Upton had tabled an amendment to deal with it. I support him because it is anomalous that a Bill is introduced to ensure we can increase the level of sentencing to facilitate the British legal position in respect of transfers. This means that, under our legislation and regulations, time served will be extended in respect of time served in British prisons.

I am concerned about facilitating the British by introducing a Bill. The Bill should be introduced because, as a sovereign state, we see it as the right course of action to take. It should not be an accommodation of the view of the British

Government. During discussions with Irish prisoners in Britain, concerns were expressed about the Irish Government responding to demands to change our legislation. We should only amend our legislation because we wish to do so, not in response to demands from another state. I appreciate the Minister's difficulty in this area because there is an urgent need to transfer Republican prisoners. The enactment of this legislation will accommodate that.

Caoimhghín Ó Caoláin

Apart from the wholly objectionable nature of the construction of the Bill, the amendment focuses upon an anomaly to which I referred on Second Stage. At that time I stated that the full implications of the Bill were unclear in respect of the State's right to grant early releases or amnesties to certain prisoners held or to be held in prisons here. I also stated that the issue of remission of sentence is also open to doubt in light of this legislation.

I join colleagues in asking the Minister to clarify this matter, which is a further indication of what I believe is a flawed approach. The legislation is not necessary to achieve its purpose — that is, the repatriation of Irish republican prisoners, which I support. It is a matter of grave concern to me and those I represent and also to those who are the focus of this amendment, the prisoners themselves.

Mr. O'Donoghue

I understand the philosophy behind Deputy Upton's amendment. At present, when a court issues a warrant for continued enforcement under section 7 of the Act it has due regard for any remission of sentence accrued in the sentencing State. The amendment seeks to allow a court also to take into account any remission likely to accrue to that person if they remain in the sentencing State, once that arrangement is beneficial to that person. Unfortunately, I am unable to accept the amendment for a number of reasons, not least of which is Article 9 of the Council of Europe convention, which states that the enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. This provision is fundamental to the operation of the convention and means that transferred prisoners are subject to the same remission arrangements as apply to other prisoners. This principle is underpinned by section 7(4) of the Act, which states that the warrant issued by the court shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court. In other words, the sentence is to be treated as if it had been imposed in this jurisdiction.

Even if the issue of adherence to the convention did not arise — and let us be clear that it does — there would be a practical difficulty with the proposal in that remission is earned for good conduct and is prospective in its nature. To seek to have a court grant remission in advance in such circumstances could be argued to overlook the nature of remission. It can also be argued that, given the principle that remission exists to encourage good conduct, it would be invidious to discriminate between prisoners here on the basis of where they received their sentences.

In making these points I do not denigrate or dismiss the concerns expressed by Deputies Upton, Ó Caoláin, Neville and Flanagan. I am sure the House will appreciate the sensitive issues involved and it would not be appropriate for me to comment on particular cases. I can say, however, that in the same way that sentences under the Act are subject to our laws on remission, they are equally subject to our laws on temporary release. There is nothing in our law to prevent a Minister taking into account administratively, when considering a decision on a release, the fact that a person would have been likely to have gained a higher level of remission if they remained in the jurisdiction where they were sentenced.

In all the circumstances, particularly given the convention provision, I regret that I am unable to accept the amendment and I hope Deputy Upton agrees it would be more helpful not to pursue the matter further at this stage. I assure him and the other Deputies that I have taken careful note of what they have said.

There are differences in remission rates between this jurisdiction and the UK. However, the sentences of any prisoners transferred here will be administered under Irish law, which is in accordance with the terms of the convention. Accordingly, in reply to Deputy Ó Caoláin, a future Minister for Justice, Equality and Law Reform will have some discretion as to the management of long sentences and will be able to take into account likely release dates if the prisoners had not transferred. I can give that assurance.

In the context of the amendment, Deputy Keaveney recognised that the immediate issue is the repatriation of Irish prisoners. We are endeavouring to do that as quickly as possible. I feel certain this view is shared by the families of the prisoners concerned. It is in that context that the measure has been brought forward. It deals with specific circumstances which have arisen in relation to seven prisoners in UK prisons, and covers the possibility of this happening again in future cases.

To talk of the British Government interfering with Irish law in that context is, in my view, naive. I am endeavouring to adapt Irish law to the reality, which is that the British Government sought assurances regarding the integrity of sentences of British courts being accepted in this jurisdiction if it consented to transfers. The transfer of a prisoner is not a unilateral matter for this State. It is not merely a two-way but a three-way consent process. There must be consent from this jurisdiction, the prisoner and, crucially, the other jurisdiction where the individual has been sentenced. To believe otherwise is not to confront the reality of the position. If I did not introduce this legislation and could not give the assurances being sought, the probability exists that I could not achieve my objective of securing transfers of certain prisoners from the UK. I feel sure Deputies will recognise that because it is the true position.

On Second Stage Deputy Upton asked why this was not foreseen when the legislation was introduced in 1995. I will not lay fault at anyone's door for that, other than to say that applications for the seven prisoners who are of immediate concern in the context of this legislation were not received in this jurisdiction until the period from July to October of this year. The problem of higher sentences abroad was only seen when the complex legal analysis of the details of the applications commenced. The changes now proposed to the legislation will be of benefit not only to the seven prisoners immediately and directly affected but also to prisoners in future cases. Of that I have no doubt.

Deputy Flanagan asked whether I had assurances as to the efficacy of this legislation. In other words, is it certain to achieve the transfers I am seeking to achieve? I cannot guarantee that but I directly informed the Home Secretary that I was bringing forward the legislation. I outlined to him why I was doing so, in the context of his request that I be in a position to guarantee respect for the integrity of sentences passed in British courts in relation to transferred prisoners. I am hopeful to the point of being confident that this Bill will achieve its immediate objective and will achieve similar objectives in the future. To use Deputy Flanagan's terminology, I believe it will help "clear the hurdles".

Whatever about my confidence in that respect, I am certain that if I did not bring forward the legislation I would be in no way hopeful about the immediate transfer of certain prisoners. It has been made clear to me on a number of occasions that the British Government expects this jurisdiction to respect the integrity of sentences handed down in its courts. That does not mean the two jurisdictions could not come to a different agreement in the future. However, this is now the position, and our word has to be our bond in that respect. Otherwise we would demean our own sovereignty, we would become untrustworthy, and that would be unthinkable for a sovereign people.

Deputy Ó Caoláin questioned the need for the Bill. This Bill is necessary for the transfer of political prisoners to take place in the near future. If it were not necessary I would not take up the time of this House and of the Seanad in seeking to have it passed. Whatever about the ultimate aspirations of people, this measure is being brought forward in the context of trying to secure the transfer of Irish prisoners from United Kingdom prisons.

A number of Deputies raised the question of setting tariffs in relation to the Balcombe Street gang. In this context I pay tribute to Deputies who went to the trouble and expense of going to British jails to see for themselves the conditions in which Irish prisoners are held and to help wherever they could. As I have regular close contact with her in relation to this matter, I pay special tribute to Deputy Cecilia Keaveney who has worked extremely hard in this area over a prolonged period at considerable inconvenience and expense to herself.

The question of setting tariffs is a matter for the British Home Secretary. In discussions I had with him, I raised this matter and made representations. The Minister for Foreign Affairs has done likewise with his opposite number. I trust Deputy Upton will accept the explanations I have given, and that he understands that I cannot breach the convention and he appreciates why the legislation is being brought forward as it stands.

Dr. Upton

I appreciate the Minister's reasons for introducing the legislation. I have no difficulty in understanding the pressures he has to deal with, and I accept his good intentions in attempting to have those prisoners who wish to return to their native country transferred to Ireland. Why can the Minister not apply the principle he enunciated in the course of his reply, namely, to adapt Irish law to the reality of the situation? I am unable to understand why it is necessary to, in effect, force these prisoners to serve longer periods in prison than they would realistically expect to serve if they remained in the UK. If some prisoners are undecided as to whether to return to Ireland, with all the desirable factors that would ensue if they did so, there is a considerable disincentive in terms of how long they can expect to serve in prison. If I recall Deputy Neville's figures correctly, there was a differential of perhaps as much as five years. I accept that there are some implications in relation to the conviction etc., but I hope the Minister will be able to circumvent those difficulties one way or another. Perhaps there is some scope in the context of an initiative that he indicated might be in the pipeline in relation to long sentences. I would like to hear from the Minister again on those matters and particularly on the need to deal with the principle I have enunciated.

Caoimhghín Ó Caoláin

I reiterate my certainty that in this, as in their treatment of Irish republican prisoners always, the British authorities have shown no administrative flexibility. I know what the Minister is endeavouring to do, and I respect his motivation and good intent which I have never questioned. However, it is patently clear the Minister's assertion that these prisoners will be treated in accordance with the laws and practices in this State is contrary to the real effect of this Bill. These prisoners are to be subjected to the worst excesses of the British sentencing code when held in this State and yet will not be afforded the prior stated benefit of the better remission arrangements that apply in the British state itself. The right of the Irish Government to release prisoners held in its own prisons should remain unimpeded. This is something this House should not hand over easily. There remains real concern in this House, a great degree of discomfiture on all sides, at the prospect of passing this Bill. That reflects what is at the very core of what is before us. The Bill is flawed in its fundamental approach, abrogating its role in terms of future control and decision making over the term of sentence and the expectation of release in any form of those who are to be repatriated. I stand fully in support of the attempt to secure the repatriation of all Irish political prisoners in Britain at the earliest possible achievable time and yet I must, on the balance of all that is before us, stand as an Irish Republican in this House today and say I cannot support this Bill.

Mr. Flanagan

If the Minister says the amendment conflicts with the convention and that we would have difficulty in complying with Article 9 I accept his point and would say to Deputy Upton that unless the Minister can find another way around it there is probably not much point in pressing the amendment.

I have not often been in agreement with my colleague on my right, Deputy Ó Caoláin, in recent times, but there is a justified grievance as far as setting tariffs is concerned. I can think of no reason for the delay other than to point the finger of blame directly at the British authorities not only for their tardiness and reluctance to deal with this matter but for the fact that they deliberately misled Dáil Deputies and Embassy officials over the question of setting the tariffs on at least four separate occasions. There may be more but I can document four cases since April 1996 where commitments on definite dates such as "the end of the following month", "within days" or "by the end of the season" given by the British Authorities were not honoured. Is there a connection, which I do not see, between this Bill and the setting of tariffs for these prisoners? It is totally unacceptable that Members of a parliamentary Assembly in a sovereign State can be so misled on numerous occasions by two different Governments and Home Secretaries.

I will move from the obviously important area of the repatriation of Irish prisoners from the British jurisdiction to this jurisdiction and look at the manner in which the British Government has embraced the Transfer of Sentenced Persons' Convention since it first ratified it, which was a long time before we enshrined it in legislation. The British have been somewhat reluctant to embrace the terms and conditions of the convention when dealing with ordinary prisoners. This is not unusual having regard to the climate of Euro scepticism which has pervaded Britain in recent times. There has been an unfortunate reluctance by successive British Governments to embrace the spirit and letter of the transfer of sentenced persons when dealing with nationals from other jurisdictions who have been convicted of crimes. I am talking about Italians and US citizens in jails in Britain where unfortunately there seems to be a major delay in effecting transfers. It is not surprising, therefore, that we have encountered such a difficulty when dealing with the very sensitive and important area of the repatriation under the convention of Irish prisoners, which is separate from confidence building measures. If the Minister tells me there is a difficulty with the amendment from a convention point of view then I will accept what he says.

Mr. O'Donoghue

I thank the Deputies for their contributions. There are seven prisoners we know of in United Kingdom jails at present. Under British law they were given sentences ranging from 30 to 35 years. A similar offence in this jurisdiction would attract a maximum sentence of 20 years. In those circumstances it was necessary for me to introduce legislation to provide that an application for the adaptation of a sentence could only be made by the Minister for Justice, Equality and Law Reform of the day. This is to ensure I can give the necessary assurance to the British Government that we will respect the integrity of sentences handed down by British courts.

The point that transferred prisoners serve a longer term here because our remission rate is shorter has been well made by several Deputies. I have a difficulty with the convention in that Article 9 states that the enforcement of the sentence shall be governed by the law of the administering state and that state alone shall be competent to take all appropriate decisions. Inasmuch as the sentences under the legislation are subject to our law in relation to remission they are equally subject to our law in so far as temporary release is concerned. In those circumstances there is nothing in our law to prevent the Minister of the day taking into account, when considering a decision on the release of an individual, that he would have been likely to have gained a higher level of remission if he had remained elsewhere. In other words, the objective of the legislation is not to ensure that a person will serve a longer time in prison as a result of being transferred to this jurisdiction. I said the temporary release of such a prisoner would be governed by our laws. It would be wrong when considering a temporary release not to take into account that an individual would have served a shorter sentence in another jurisdiction.

While it is of paramount importance that the integrity of the sentence handed down by a British court is respected in this jurisdiction, it is equally important that we do not expect an individual transferred to this jurisdiction to serve a longer time in prison. The objective of the legislation is to secure the transfer to this jurisdiction of Irish prisoners currently incarcerated in the United Kingdom. In the pursuit of this objective it is necessary to be able to assure the British Government that we will respect the integrity of the sentences handed down by British courts. There may be criticism of the legislation in relation to the various side matters, but its thrust and objective is humanitarian in all respects. I am not shy to say that it is also designed to assist the peace process.

Dr. Upton

I thank the Minister for his reply. He said that given the present administrative set up it may be possible for him to meet the concerns addressed by my amendment. On that basis I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

Mr. Flanagan

Given that there are only 20 minutes remaining and other Deputies wish to contribute, I suggest that we take amendments Nos. 2 and 3 together.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Flanagan

I move amendment No. 2.

In page 3, paragraph (a) lines 24 to 26, to delete "in his or her absolute discretion if he or she thinks it appropriate to do so" and substitute "where he or she considers it appropriate and where the prisoner concerned, after being fully advised of the effect in relation to him or her, has expressly indicated in writing his or her consent to such application".

This amendment is directly relevant to our discussion on the integrity of sentences and, as Deputy Neville said, the reality that prisoners who have their transfers effected could end up serving longer sentences than those which would have been imposed if they had been convicted in this jurisdiction. I hope in all circumstances consideration will be given to making clear to the applicant the dangers involved. I would have thought it would be important to build into the legislation a clause to ensure all the facts are on the table before a transfer is effected. That point was raised by the Irish Commission for Prisoners Overseas in the course of its consideration of the Bill. That body deserves to be applauded for a long and positive history of involvement in these issues.

On the terms and conditions to be complied with before a transfer may take place, the Minister said there must be consent to the transfer from all parties. I assume he will tell me that before such consent is forthcoming the facts should be on the table. It is important in the circumstances that the import of my amendment is taken on board and that the express indication is contained in writing from the person involved, having fully availed himself or herself of the circumstances under which the terms and conditions of the legislation operate.

On amendment No. 3, because of the importance of the legislation and the fact that the Minister would give guarantees from time to time on behalf of the people of this jurisdiction, consideration should be given to reviewing the legislation on a 12 months basis, having regard to transfers or difficulties that might arise from time to time.

Dr. Upton

I wish to refer to the general principle outlined by Deputy Flanagan. There is a case for reviewing the legislation from time to time. To some extent it is implied in the Minister's speech that the legislation may not endure indefinitely. I suspect events may render it irrelevant or that it may be necessary to modify it in the future. For that reason there is much merit in the point made by Deputy Flanagan.

Mr. O'Donoghue

Section 6(5) of the Transfer of Sentenced Persons Act, 1995, already covers the matters raised by this amendment. In the context of a request for a transfer to this State, section 6(5) of the 1995 Act provides that the Minister may not consent to a transfer request unless he or she is satisfied reasonable steps are taken to inform the prisoner in writing and in his own language of the arrangements in place for such transfers, of the effect of a warrant authorising the transfer and of the powers of the Minister to seek revocation or variation of a warrant authorising the transfer. The effect of section 6(5) is that the Minister must be satisfied all reasonable steps have been taken to inform the prisoner of the effect of a warrant authorising the transfer. Accordingly, it is difficult to see how the proposed amendment offers prisoners further safeguards and in those circumstances, unfortunately, I cannot support the amendment.

The purpose of amendment No. 3 would be to permit the operation of section 5(b) for an initial period of 12 months, which could be renewed. I do not agree with that amendment. Experience of the operation of the convention has shown that some states are not prepared to consent to transfers unless a guarantee can be given that the sentence imposed will not be reduced. The only way I, as Minister, would be in a position to give the necessary assurances would be by way of the proposals in the Bill. I do not believe the position will have changed in 12 months' time or in the foreseeable future.

I acknowledge what is sought to be achieved by the amendment. It is recognition of the fact that this legislation relates immediately to the prospective transfer of seven prisoners in the United Kingdom. The legislation, however, while very much geared in that direction, does not exclusively relate to those seven prisoners. It can relate to other prisoners in future years and to jurisdictions other than the United Kingdom. It can relate to prisoners other than Republican prisoners, to any prisoner where the foreign jurisdiction seeks a guarantee from this State that the integrity of the sentence handed down will be respected in this State. Accordingly, the legislation as presented applies not only to events of today, tomorrow or the next 12 months but to the future. I trust Deputy Flanagan will understand why I am unable to accept his amendments on this occasion.

Mr. Flanagan

I am prepared to accept what the Minister said on amendment No. 2, provided he is happy every opportunity will be availed of to ensure prisoners who come back to this jurisdiction will not say they were not aware of the circumstances before their transfer. On amendment No. 3, however, the position is somewhat different. I do not wish to labour the point with the Minister, but I am confused on the question of the guarantee. The Minister referred to guarantees that will be given, but no guarantee can be given because it would not be constitutional to do so. The Minister said his word is his bond, and it is important that is accepted internationally. We have a proud record in that regard and I do not anticipate the position will be different under the Minister's stewardship.

I wish to draw the Minister's attention to what he said about his word and about guarantees. Section 1(6)(b)(ii) makes it clear that the duration of the sentence cannot exceed the maximum penalty prescribed by the law of this State for a similar offence. It appears there may be a contradiction in that, that it is at variance with what the Minister said about guarantees and bonds because there are cases where we do not have corresponding crimes or sentences to those in other jurisdictions. In those circumstances how does the concept of the guarantee fit in with the subsection to which I referred? Given there is an apparent contradiction there, I would have thought amendment No. 3 would be accepted to allow us to review a statute that may give rise to confusion in the future.

Mr. O'Donoghue

The objective of the legislation is to ensure the Minister would be in a position to offer an assurance that the integrity of a sentence handed down in a foreign jurisdiction in respect of a transferred prisoner would be respected here. Such an assurance given by a Minister of this State would be honoured by every subsequent Minister. That has been the position on other matters and I have no doubt that, irrespective of the political persuasion of a Minister for Justice, Equality and Law Reform, that would be observed.

The legislation as it stands provides that the sentence can be adapted only on foot of an application by the Minister for Justice, Equality and Law Reform. That will ensure the assurance to which I referred can be given. Deputy Flanagan said the legislation should be reviewed in 12 months. I do not believe that will be necessary. I firmly believe the legislation can, and possibly will, have application in the not too distant future to prisoners other than those currently incarcerated in United Kingdom jails, at whom it is immediately directed. The legislation will have effect in the future when foreign jurisdictions seek an assurance from an Irish Minister that the integrity of sentences handed down by their courts will be respected in this jurisdiction if they agree to transfer a prisoner here.

The transfer requires the consent not only of this jurisdiction but of the foreign jurisdiction and the prisoner concerned. If any of those consents is not forthcoming the entire procedure will break down and the transfer cannot take place. While I understand the motivation behind Deputy Flanagan's amendment, I trust I have explained the matter sufficiently and that he will accept the necessity to leave the legislation as it stands.

Amendment, by leave, withdrawn.

Amendment No. 3 not moved.

Section 1 agreed to.

NEW SECTIONS.

Dr. Upton

I move amendment No. 4:

In page 4, before section 2, to insert the following new section:

"2. -Section 6 of the Transfer of Sentenced Persons Act, 1995, is hereby amended by the insertion after subsection (6) of the following subsection:

‘(7) Reference in paragraph (a) of subsection 3 of this section to close ties with the State shall include reference to birth or residence in Northern Ireland.'.".

This is a straightforward drafting amendment designed to ensure the term "close ties" with Ireland includes people born or resident in the North. It is simply designed to clarify what is already contained in the Bill.

Mr. O'Donoghue

Section 3(a) specifies as a requirement that before a transfer into this jurisdiction can take place the sentenced person must be, for the purposes of the convention, regarded by the State as a national of the State and, for these purposes, 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. I hope the Deputy understands that. The amendment seeks to enshrine in the Bill that close ties with the State shall include a reference to birth or residence in the State or Northern Ireland.

The Act as currently worded gives a high degree of flexibility to the State in facilitating persons with close ties to the State who are not nationals. I do not understand the benefit of defining that concept by reference to birth or residence. What is at issue is that the close ties, whatever their nature, are such as to make a transfer appropriate. While the amendment only states that a reference shall include the matters referred to in the amendment, including a part definition which might limit the flexibility that already exists, the flexibility that currently exists under the legislation might be limited in its scope if this amendment were accepted.

In practice it is difficult to know the effect of the amendment on individual applications. Obviously, it would still be a matter for the Minister to decide whether the close ties were sufficient to make a transfer appropriate. Including the amendment could be misleading because a non-national who happened to reside in the State many years ago for a short period and who had no family ties here would not in practice be regarded as having sufficiently close ties to warrant a transfer into the jurisdiction. Irrespective of close ties, the State has discretion in agreeing to a transfer. Including the amendment would not alter that.

In the circumstances including the amendment would serve no useful purpose. It could limit the existing flexibility and for those reasons I regret I have to oppose it. However, in rejecting the amendment I assure the Deputy I will exercise as much flexibility as possible during my tenure of office on the transfer of prisoners into the jurisdiction and, in deciding if a person has sufficiently close ties, that flexibility will be of considerable importance. I will not be rigid in the matter. I will be flexible in terms of each application in so far as it relates to the question of an individual having close ties with this country. The amendment as framed could limit the scope of that flexibility and, therefore, I must oppose it.

Mr. Flanagan

Will the Minister consider recruiting Jack Charlton to give a hand in identifying close ties and links?

Amendment, by leave, withdrawn.

Dr. Upton

I move amendment No. 5:

In page 4, before section 2, to insert the following new section:

"2. -The Transfer of Sentenced Persons Act, 1995, is hereby amended by the insertion after section 10 of the following section:

‘10C. -Where a sentenced person is dissatisfied with a decision of the Minister refusing an application under section 4(1) of this Act or refusing a consent to an application under subsection (1) or (2) of section 6 of this Act, concerning that person, he or she may within 2 months of being informed of the decision, or such longer period as the High Court may order, appeal against that decision to the High Court and that Court may if it is satisfied that it is proper to do so, direct the Minister to grant or consent to the application as the case may be.'.".

This amendment is designed to introduce an appeals system for people who have made applications for transfer and are dissatisfied with the Minister's decision. It is simply a safety mechanism which would allow a second opinion when people are dissatisfied with a decision.

Mr. O'Donoghue

This amendment proposes a right of appeal to the High Court against decisions made by the Minister on applications made by the convention. I cannot accept the amendment. Transfers take place under an international convention and arranging such transfers is clearly a matter for the Executives of the States involved. Under the convention a State has the right to refuse an application and it would be inappropriate for that decision to be left ultimately to the courts which is what the amendment, in effect, proposes.

One of the practical difficulties that arises is the effect transfers have on the availability of prison accommodation. It would be unthinkable to take control of this matter from the Minister. Deputy Flanagan raised the question of the possibility of transferring provisional IRA prisoners from Portlaoise Prison to Castlerea Prison. A decision has not been taken on moving those prisoners, but such matters are kept under continuous review. I note the Deputy's enthusiasm for the building of a new prison at Portlaoise and I am sure this is not due to an objective bias on his part.

I emphasise that decisions on transfers are policy matters and are proper to the Executive, not the courts. Our courts are involved in transfers into the jurisdiction, but basically that involvement relates to ensuring the lawfulness of the detention of a person being transferred. Consent to the transfer is a matter for decision by the Minister of the day.

As Minister I will be responsible to the House for the actions taken under the legislation. While I cannot accept the amendment I assure the Deputy that I will continue to operate the convention to facilitate, to the greatest extent possible, transfers into the jurisdiction where they are warranted.

Amendment, by leave, withdrawn.

Section 2 agreed to.

An Ceann Comhairle

As it is now 1.30 p.m., I am required to put the following question in accordance with an Order of the Dáil of this day: "That the sections undisposed of and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and the Bill is hereby passed." Is that agreed?

Caoimhghín Ó Caoláin

No.

Question put and declared carried.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.