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Dáil Éireann debate -
Thursday, 2 Jul 1998

Vol. 493 No. 5

Criminal Justice (Release of Prisoners) Bill, 1998: Committee Stage.


Amendment No. 1 and amendment No. 2 are consequential on amendment No. 4 and, therefore, amendments Nos. 1, 2 and 4 can be taken together.

I move amendment No. 1:

In page 3, subsection (1), lines 31 and 32, to delete "section 3(2)" and substitute "subsections (2), (3) * and (4) * of section 3".

Amendments Nos. 1 and 2 are contingent on favourable recognition of amendment No. 4 and I will concentrate my comments exclusively on amendment No. 4 which deals with what does or does not constitute a qualifying prisoner for the purpose of the Act. I sought some clarification from the Minister on Second Stage and I take it he did not have an opportunity during his five minute reply to that Stage to respond in sufficient detail. In his opening address he referred to the Agreement. If he did not say it, he implied that he did not wish any aspect of the Bill to go beyond the Agreement. From my party's point of view, there is no suggestion Fine Gael would seek to go beyond what is contained in the historic Agreement.

Regarding the section on prisoners in the Agreement, the section the Minister included in the Schedule is far from specific. Paragraph 4 was included in the Agreement to allow the Governments put a greater amount of detail into the Bill before us and, while we are supportive of it, it is weak.

Amendment No. 4 attempts to define a qualified prisoner for the purpose of the Act. I hope the Minister will deal with my concerns on this matter. The definition needs to be specific. Will the Minister confirm if we are dealing with an amnesty, early release, a commutation or a licence? It is of extreme importance that we get this right. As a precondition of any release, there should be a method by which the prisoner involved has an opportunity to renounce violence and give an undertaking to that effect. It is only fair and reasonable in the circumstances that should be done.

We are talking about people who will be released, having been convicted of the most serious terrorist offences the law recognises. If there is to be an amnesty, it is only right it should incorporate a disavowal or a renunciation of violence by the prisoner concerned. Does the Minister envisage these releases will be undertaken on a collective basis or will there be an individual prisoner release mechanism? He might deal with that when we come to discuss the commission. As a minimum, we should deal with people who, having spent some time in prison and who will benefit as qualifying persons, should have renounced violence.

Subsection (4) of amendment No. 4 deals with the organisation that persons may at some stage have been associated with, affiliated to or supporters of. The Schedule goes some way towards dealing with that point, but it is not sufficient. I hope there will be no provision under which persons, who are members of an organisation which has not established a ceasefire, would be considered for early release. That relates to a problem that I briefly addressed on Second Stage on which I wish to press the Minister, that of persons who may wish to be considered as qualifying prisoners and who may have departed from the organisation to which they were at some previous stage affiliated. There are a number of such people, who have declared that they have left the INLA. How does the Minister propose to deal with them on the basis that the organisation in question has not declared a ceasefire yet an individual who may have been involved wishes to extricate himself or herself from the membership of that organisation? If there is no appropriate method employed, it will mean these people will not only be prisoners of the State but of the organisation and they will not benefit under this Bill. I hope the Minister can deal with that in his reply.

The latter part of amendment No. 4(4) deals with the specific regard the Minister should have when deciding on a release, which again is contingent upon whether the Minister will employ an individual, case by case, release mechanism or a collective release mechanism. If it will be on a case by case basis, will the Minister consider the seriousness of the crime? Will he examine in detail whether the person is involved in an organisation which is now committed to the use of democratic and peaceful means? That is important in the context of having appropriate safeguards. This morning Members from all sides of the House recognised and acknowledged that this is a difficult question. It is a serious and sensitive matter. Therefore, it is important that the Bill includes the type of safeguards envisaged in amendment No. 4.

These amendments seem to be based at least to a significant extent on provisions in the Northern Ireland (Sentences) Bill, 1998. What I have to say should not be interpreted as a comment or criticism of that legislation. It must be understood that that legislation arose in the context of a requirement to introduce legislation in that jurisdiction so that the release powers would be available to enable effect to be given to the provisions of the Agreement.

However, the position in this jurisdiction is very different. As I explained on Second Stage, the release powers already exist in law to enable us to give effect to the contents of the Agreement in relation to the accelerated release of prisoners, and that point has been generally accepted. It should not then surprise anyone that the approach we are taking in this Bill should differ substantially from that which was taken in the UK legislation. What we have done is introduce legislation appropriate to the legal environment in which we operate in this jurisdiction. It is not appropriate to attempt to transplant to that structure some of the provisions of the UK legislation.

The central approach taken in this Bill is quite straightforward. In effect, it provides that in considering cases for release regard must be had to the relevant part of the British-Irish Agreement, and that part of the Agreement is included word for word in the Bill. It seems to me that approach keeps faith with the people here who voted overwhelmingly in favour of the terms of the Agreement and, as far as I can see, no case has been made to add a gloss in this Bill to the terms of the Agreement. The dangers inherent in attempting to do that are clear from these amendments.

For example, the amendment seeks to define a qualifying prisoner as a prisoner who has renounced violence and undertakes by way of declaration not to engage in any unlawful activity in the future. I know that it is not the intention but, on the face of it, the amendment would mean that any armed robber in Mountjoy Prison, for example, whose actions had nothing to do with the northern conflict, could purport to renounce violence and make a declaration not to engage in unlawful activity in the future. Under the terms of the amendment, that person would qualify for release under the British-Irish Agreement. I know well that is not the intention but it illustrates the difficulty of putting a gloss on the Agreement by putting forward well intentioned but needless amendments. There are dangers in seeking to put a gloss on the Agreement.

The amendment goes on to state that any person affiliated to or supportive of any organisation which has not established or is not maintaining a complete and unequivocal ceasefire shall not be a qualifying prisoner within the meaning of this Act, but the relevant part of the Agreement, which is scheduled to the Bill, states that "Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal ceasefire will not benefit from the arrangements". It is difficult to see what advantage there would be to that part of the amendment given the approach taken in the Bill. Under the Bill, it will be a matter for the Minister of the day to deem whether a prisoner is a qualifying prisoner for the purposes of the Agreement. Such a matter is clearly a matter for the Executive and the Minister for Justice, Equality and Law Reform of the day is uniquely well placed to have regard to all of the relevant considerations which fall to be considered under the terms of the Agreement. There is no legal requirement or advantage in this jurisdiction in seeking to enshrine in law what would, in effect, amount to an interpretation of the Agreement.

I will make the general point, with which I am sure everyone will agree, that the legislation is not about raising fences or moving goal posts, or even about being perceived to do that. It is intended to, and must as a matter of necessity, reflect the terms of the Agreement. In this context, it must faithfully reflect the terms of the Agreement.

I do not believe there is any great difference between any of us as to what we are trying to achieve in giving effect to the Agreement. I fully accept the bona fides of everybody in the House in this respect, but I hope Deputy Flanagan will accept in turn that the approach taken in the Bill is the correct one and that the amendments which he tables are undesirable for all of the reasons I outlined.

One of the issues underlying this amendment is the concern that once a prisoner is released under the Offences Against the State Act or the Criminal Justice Act, there is no basis on which that person can be rearrested unless he or she commits another crime or is found guilty in the courts of committing another crime. I do not remember the details but I recall an incident when in Government where a released prisoner was found in suspicious circumstances and the Garda Síochána were not in a position to rearrest him and bring to an end the release procedures which had been implemented. This raises the question of the conditions to be attached to the release of prisoners in these circumstances. Is there a way in law under the Offences Against the State Act or the Criminal Justice Act to rearrest a person who may be in breach of the conditions set for his or her release?

Dr. Upton

I agree with the line taken by the Minister. The Agreement which may not be perfect — I presume it has its limitations — has been accepted. To reinterpret, qualify or modulate it would not be desirable. That is the reason I, on behalf of the Labour Party, have not tabled amendments to the Bill.

The Minister has not addressed my concerns. Is he prepared to provide the House with the methodology he will employ in determining who is a qualifying prisoner? He appears to suggest this is an executive function and that he will be the exclusive arbiter. I am not certain that is what was envisaged by the Agreement. There is a need for transparency. Are we talking about an individual or collective release mechanism? Will the Offences Against the State Act or the l960 Criminal Justice Act or both be employed? The seriousness of the crime and the political motivation of the individuals involved should be taken into account.

The Minister said he is happy to deal with the matter under the Agreement which states that an organisation should maintain a ceasefire. What methods will he employ to assure the public that he is happy an organisation is maintaining a ceasefire? Between Christmas and 10 January when there were a number of murders committed the situation in Northern Ireland was precarious, delicate, sensitive and appalling. They were terrorist offences, yet organisations were maintaining a ceasefire. There has been an outbreak of terrorist activity in the Border area. Will the parties involved claim they are maintaining a ceasefire? Can one maintain a ceasefire while engaging in horrific punishment beatings on a daily basis?

The Minister will have to make a judgment on whether an organisation is maintaining a ceasefire to allow members of that organisation to go free. Is it freedom without conditions and sanctions? On Second Stage the Minister rejected the notion of licence. What safeguards is he prepared to introduce to meet a fair degree of public concern which would be met by amendment No. 4 which he regards as inappropriate because what it proposes is unknown in this jurisdiction? He should specify the aspects he deems to be inappropriate and unnecessary and state why.

What mechanism or approach will the Minister employ to facilitate members of an organisation who have renounced violence and wish to extricate themselves from it to avail of the status of qualifying prisoner? The difficulty, as I understand it, is that they will not be given what has become known as non-aligned status.

I agree with Deputy Upton, that there is no alternative but to follow the terms of the Agreement faithfully. This has not been stated by other speakers but it is what they think. That leads us to the question of the method to be employed and the safeguards which require to be inbuilt. The Agreement refers to the release of prisoners convicted of scheduled offences in Northern Ireland or similar offences outside it. Amendment No. 4 reads:

(3) Qualifying prisoners shall be prisoners who have renounced violence and who have undertaken by way of declaration not to engage in any unlawful activity in the future.

Paragraph 2 of the Schedule to the Bill is specific. It states:

Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal ceasefire will not benefit from the arrangements. The situation in this regard will be kept under review.

It will be a matter for the Minister for Justice, Equality and Law Reform of the day, who will have access to the relevant information, to decide whether prisoners qualify for early release. In answer to Deputy Flanagan's point, a prisoner does not have to be a member of a particular organisation to benefit from the procedures. To use the Deputy's words, a prisoner will not become a prisoner of a particular organisation under the terms of the legislation as drafted. In any event an individual would have had to have been convicted of a scheduled type offence. A prisoner would not be excluded on the basis that he or she was no longer a member of an organisation.

Blanket consideration will not be given to a collective number of prisoners' cases. Each case will be considered individually. The agreement excludes from the scope of the scheme only prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal ceasefire. I hope this will help to allay people's concerns about this matter.

Deputy De Rossa raised a number of interesting points in respect of this unique legislation. He asked whether an individual released pursuant to the Offences Against the State Act, 1939, can be rearrested for breach of a condition or conditions of his or her release. That raises the question of whether a condition or conditions can be imposed under the terms of the 1939 Act in the first instance. These are interesting questions. However, there is no jurisprudence which I regard as settled in respect of this matter. Deputy De Rossa will be aware that the issues to which he referred have not been tested in the courts.

The Offences Against the State Act, 1939, and the Criminal Justice Act, 1960, have been used by successive Governments to release prisoners at different points in the history of the State. It must be stated, however, that the exercise of the power of release under the 1939 Act is the Government's prerogative. Releases under the 1960 Act are the function of the Minister for Justice, Equality and Law Reform of the day. The relevant provisions allow for conditions to be placed on release. I will consider whether release under the 1939 Act or the 1960 Act is appropriate. However, that consideration will have to take place on a case by case basis and, in that context, I will take the advice of the commission I propose to establish pursuant to the enactment of the legislation.

Deputies Flanagan and De Rossa inquired whether we will use the 1960 Act or the 1939 Act. The 1960 Act will be used in the majority of cases because the majority of prisoners at issue have been repatriated and, therefore, the Offences Against the State Act, 1939, would not be applicable to them. In those circumstances the Criminal Justice Act, 1960, will apply. Cases involving repatriated prisoners or capital cases cannot be considered under the provisions of the 1939 Act and they will have to be dealt with under the Criminal Justice Act, 1960.

Deputy De Rossa and I could embark upon a philosophical discussion on the provisions of the 1939 Act but such a debate would have no great effect because, as already stated, I am unaware of any settled jurisprudence in that area. I assure him there is no doubt in my mind that a breach of conditions under the 1960 Act could lead to a legitimate arrest.

With regard to the question of numbers, etc., the majority of the prisoners under discussion have been repatriated. When one excludes these individuals and those imprisoned for capital offences, only a small number of prisoners' cases would come under the terms of the 1939 Act. I hope I have addressed Deputies' concerns. If not, I will try to deal with further queries as they arise.

I wish to refer to amendment No. 4. I do not want to seek a division on this issue. I regret that the Minister does not see fit to incorporate the amendments in the legislation. Is he prepared to give an undertaking that, in the context of making a decision, he will have regard to the points included in the amendments, particularly in respect of the renunciation of violence? The agreement refers to prisoners affiliated to organisations which have not established or are not maintaining a ceasefire. This means that the organisation of which prisoners are members must have declared a cessation of violence before early release will be granted. What is the Minister prepared to consider as far as individuals are concerned? Is there a method he proposes to use to assess the individual involved rather than or as well as the organisation of which he or she is a member?

In the context of the second part of amendment No. 4, will the Minister give an undertaking that he will have regard to the status of paramilitary organisations and ensure that they are committed to the use of democratic and peaceful means to achieve their objectives? Having regard to the fact that the Minister does not consider the amendment to be of sufficient importance to be incorporated in the Bill, is he prepared to say that in the context of securing a method to define "qualifying prisoner" he will take the import of the amendment into consideration?

I thank Deputy Flanagan for his acute observations. The problem is not the importance of the amendments put forward. It is not my intention to undermine their importance. The difficulty remains that outlined by Deputy Upton — there must be a faithful following of the Agreement. In so far as the considerations in Deputy Flanagan's amendments, which he argues should be taken on board, are consistent with the Agreement, his concerns will be taken on board. However, I cannot go outside the terms of the Agreement. In so far as the Deputy's amendments are consistent with it they will be taken on board. I trust that offers reassurance.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

The section provides that there shall be established ". on such day as the Minister may by order appoint, a body which shall be known as An Coimisiún um Scaoileadh Saor Príosúnach .". Does the Minister have a date in mind for the establishment of this body? Can he indicate to the House who the members of the body will be? Will he alone make that decision or does it require Government approval?

The composition of the commission is set out in the Bill. It is provided that there will be an officer of the Minister, a member of the Probation and Welfare Service and that a barrister or solicitor of not less than seven years' standing will be the chairperson. I assure the Deputy there will be no delay in forming the commission. Within days of the enactment of the legislation the commission will be put in place.

Will the Minister elaborate on the functions of the commission? Does he envisage that the commission will receive applications, engage in oral hearings and furnish interim reports or reports on each case? What does the Minister envisage as his relationship with the commission? His statutory obligation will be to do no more than he deems appropriate at a given time. On a strict reading of the legislation the commission would appear to be a weak body which shall do no more than advise from time to time when the Minister seeks that advice. It may be that the commission will do very little.

On first reading it appears little more than a window-dressing exercise. Will the Minister inform the House of the day-to-day modus operandi of the commission? What functions does the Minister see the commission engaging in with a view to giving him the advice which he may seek from time to time? Will the Minister comment also on the issues of oral hearings, written submissions to the commission and the relationship between the commission and victims?

I hope this will not start a growth industry. Comparatively speaking, a small number of prisoners will be involved. The House will acknowledge that we are addressing the problem in a proportionate manner. The Minister for Justice, Equality and Law Reform will receive the applications in the first instance. The Minister will be obliged to transfer the consideration of the qualified prisoners to the commission which, in turn, will advise the Minister. The commission will act in an advisory capacity and it will not be able to exercise discretion unilaterally. However, it may advise the Minister in accordance with the legislation.

With regard to the procedures that will operate, I refer the Deputy to section 5(11) which provides that the commission shall regulate the procedures and business of the commission. I envisage that every case will be referred to the commission. It is true that the ultimate decision in making a determination will lie with the Minister of the day. The position is set out in so far as is possible in section 3.

Question put and agreed to.
Amendment No. 2 not moved.

Amendment No. 8 is related to amendment No. 3 and they may be taken together. Is that agreed? Agreed.

I move amendment No. 3:

In page 4, between lines 24 and 25, to insert the following subsection:

"(3) The Commission may, if it considers it necessary to do so for the purpose of performing its function under this Act, request the Minister to furnish to it information specified in the request, being information that is in the possession of the Minister or may reasonably be procured by him or her, and the Minister shall comply with such a request.

I tabled amendment No. 3 in response to amendment No. 8 in the name of Deputy De Rossa. Deputy De Rossa's amendment provided that in considering a request for advice, the commission may request from the Minister or the Garda Commissioner such information as it considered necessary in regard to any qualifying prisoner, and went on to give an indication of some of the types of information at issue. It is implicit in the Bill that, where the Minister sought advice from the commission on prisoners, it would be incumbent on the Minister to provide the commission with all the information it needed so as to be in a position to respond to the Minister's request. It has to be borne in mind too that under the Bill one member of the commission would be an officer of the Minister and another a member of the Probation and Welfare Service, and it would be expected in practice that they would be able to obtain or supply whatever information was needed.

When I saw Deputy De Rossa's amendment I recognised that it might be best to put the matter beyond doubt, and I consulted with the parliamentary draftsman. Accordingly, my amendment provides that the commission may, if it considers it necessary to do so for the purposes of performing its functions under the Act, request the Minister to furnish it with requested informationwhich is in the possession of the Minister or may reasonably be procured by him, and the Minister shall comply with such a request. I believe this meets the point raised, through his amendment, by Deputy De Rossa. I am grateful to him for tabling the amendment. In the circumstances I hope he will be in a position to withdraw amendment No. 8.

Amendment agreed to.
Amendment No. 4 not moved.

(Dublin West): I move amendment No. 4a:

In page 4, between lines 28 and 29, to insert the following subsection:

"(4) In requesting the Commission to give advice regarding qualifying prisoners, the Minister shall request the Commission to have regard to whether the crimes of which the qualifying prisoners were convicted were inspired by sectarian hatred.".

It is a natural part of the peace process that follows civil conflict of the scale and intensity we have had on this island for many decades that the release of prisoners would be integral to it. It is characteristic of any conflict that the release of prisoners who are in prison as a result of the conflict, for whatever reason, will always be part of the settlement. I agree with that process, and I agree with the proposals coming forward that advancing the peace process has to involve the release of prisoners.

However, we should not uncritically accept legislation putting this into effect without looking more closely at the nature of the prisoners because they can be of different character and have differing motivation. In general wartime situations, there may be people who were dragooned into the service of their armed forces and felt they had to serve in that regard, and there may be outright war criminals.

Regarding the situation we face here, from the socialist perspective that I bring to this Dáil, the 30 year paramilitary campaign was unjustified in every sense. There was no political or other justification for it. It was always to be politically doomed. It should have been clear from the republican viewpoint that, apart from the morality of it, one million Protestant people could not be bombed into a united Ireland. However, we recognise that young people, North and South, did get dragged into the conflict, many of them as a result of overwhelmingly political motives. From the point of view of youth with republican views, the civil rights experience and the nature of the repressive regime that obtained in the North was a motivating factor. Their motives were well meaning, even if the means they adopted were wrong and doomed. These are the people for whom a prisoner release programme would be designed.

Within the republican paramilitaries there were also those who are guilty of nakedly sectarian atrocities. The Whitecross massacre of nine or ten Protestant workers in the late 1970s is one atrocity that stands out dramatically. Similarly, people from a loyalist paramilitary background had different motivations. Some felt they were protecting civil rights, but others were guilty of nakedly sectarian atrocities of the most horrific kind. In reviewing the situation of prisoners, that motivation has to be looked at with a view to ascertaining what role released prisoners will play in society in the future.

We have to accept that people can change. There are people now leading the peace process in the North on both sides who have changed very much in 20 years in their political viewpoint. They regret deeply many of the actions they or the organisations in which they were involved carried out, and they are attempting to play a positive role. We have to allow that some have not really changed. I would be particularly worried about people who were motivated mainly by sectarian hatred which is what gave rise to terrible suffering in both Protestant and Catholic communities over the past 30 years and affected this State as well.

The release programme has to assist a continuing peace process. Therefore, people will need to be reassured and be confident that anybody who may have been motivated by sectarian hatred has changed and will not hold the view that at some stage they may take up that line of action again. For example, when there are heightened sectarian divisions, even in the situation that obtains in the North at present, people want to be reassured that none of those who are convicted of sectarian crimes will, when released, again foment sectarian crimes because it is communities, working class communities in particular, which have suffered and which will suffer again. The commission should take these issues into consideration when advising the Minister under this Bill. That should be a factor in the release of prisoners to ensure that crimes committed against ordinary people will not be repeated.

I apologise to the House for being absent when the Minister moved his amendment which was related to an amendment I tabled. I welcome the Minister's acceptance of the principle I put forward.

I want to take up a point made by Deputy Higgins. I do not make the distinction he makes between murders carried out by paramilitaries, allegedly for political reasons, and those carried out by people who went out and killed others, choosing their targets simply on the basis that they believed them to be Catholics or Protestants. The sad fact is that most of the people killed by the Provisional IRA were Protestants and it is very difficult to distinguish between one motivation and another. I might add that some of the most horrific sectarian killings were carried out by some of the people who participated in the negotiations. They played an important role in those negotiations and have moved away from the type of activity they were involved in during the 1970s. It is difficult in the first instance to distinguish the motivations behind these killings and it would be important not to seek to do that.

It is important that the commission would have regard to the mental state of the prisoners who will be released into our society. I do not know whether any of these people are in Irish prisons but I have no doubt that some of those involved in these killings were psychopaths. We will need to be extremely cautious about the judgments we make with regard to releasing prisoners who may have a mental disturbance in addition to using the cover of political motivation.

The purpose of the commission is to give advice on release of prisoners by reference to the provisions of the relevant part of the Agreement which is included in a Schedule to the Bill. This amendment would require the commission, in addition to taking into account whether crimes of which the following prisoners were convicted, were inspired by sectarian hatred. It is not appropriate to require the commission to do any more or any less than have regard to the relevant terms of the Agreement and in the circumstances I cannot support the amendment. The commission will take into account in line with the Agreement the seriousness of the offence and the need to protect the community.

While no one would disagree with Deputy Higgins's views about the despicable nature of sectarian crimes, it would be wrong to see this Bill as an opportunity to seek to qualify what is provided for in the Agreement by reference to the motive for a particular offence. In any event, that is something on which it would be impossible for the commission to decide.

I emphasise again that the Schedule is quite specific in so far as the point raised by Deputy De Rossa is concerned. The question of the mental state of an individual and whether he was a psychopath, while not specifically set out in the legislation, is nonetheless covered by the Schedule which states categorically in the text, which is taken from the Agreement, that account would have to be taken of the seriousness of the offences for which the person was convicted and the need to protect the community. Deputies will accept that the fact that the need to protect the community is included in the Schedule to the legislation offers reassurance that people with the capacity which Deputy De Rossa outlined would not be released. I hope that sufficiently explains the position. I trust that in regard to Deputy Higgins's points he will understand and withdraw his amendment.

(Dublin West): In case Deputy De Rossa misunderstood my remarks, I have never justified any paramilitary action.

(Dublin West): In fact, the people North and South who, along with myself, founded the Socialist Party opposed from the very outset the paramilitary campaigns which we believed were doomed to failure and wrong from every point of view. That was almost unique in the late 1960s and early 1970s when other people had widespread support in society. The unity of working class people and the coming together of communities across the sectarian divide is the only way forward. I hope the Agreement will give a new impetus to finding a solution to sectarianism and that we will never again experience horrific sectarian atrocities.

Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.

I move amendment No. 5:

In page 4, between lines 33 and 34, to insert the following subsection:

"(2) In assessing cases for release the Minister shall have regard to

(a) the nature and seriousness of the offence,

(b) the likely impact of the release on the community, and

(c) the behaviour and characteristics of the qualifying prisoner.".

Some of the points raised by Deputy Higgins in the debate on his amendment could be met by part (c) of my amendment which refers to the behaviour and characteristics of the qualifying prisoner. Indeed, I agree with much of what Deputy De Rossa said in regard to that amendment.

Obviously the definition of the qualifying prisoner will allow for the accelerated process under the Agreement. As the Minister stated, that will be a difficult decision and one that will cause great concern for those victims who have been on the receiving end of the most appalling violent activity, some of which was perpetrated in this jurisdiction. I hope the Minister will have regard to the points made in the amendment. It is important that such an amendment would be enshrined in law.

As far as the nature and seriousness of the offence is concerned — this point was referred to earlier by Deputy Higgins — the reality is that the Sinn Féin Party, with which most if not all of the qualifying prisoners have had an association, has not expressed any remorse or apologised to the victims. That is in stark contrast to the comments made by the people representing loyalist terrorist groups. I am thinking in particular of the manner in which Gusty Spence conducted a press conference announcing particulars of the loyalist ceasefire. His behaviour and the content of his utterances on that occasion were in stark contrast to the colleagues of Deputy Ó Caoláin who was in the Chamber this morning. For that reason, it is important that the import of the amendment would be taken on board by the Minister.

On the nature and seriousness of the offence, and the likely impact of the release on the community, not long ago we had a public statement from the Sinn Féin representative, Mr. Martin Ferris, who expressed confidence about the release at some future stage of certain individuals who have yet to stand trial. I ask the Minister, in the context of the amendment, how he proposes to deal with persons convicted of capital murder. Will they be treated the same as those who have not been convicted of such an offence? How does the Minister propose to deal with the likely impact on the community of the release of a person convicted of capital murder? Is he prepared to consider the behaviour of such a qualifying prisoner within the prison regime or the attitude of that individual, for example, towards the ceasefire? Given the Minister has not clarified to the extent I would have wished what he will take into consideration in determining whether a person is a qualifying prisoner, and the fact that the commission is merely an advisory body and may not take this into consideration, it is important the Minister allows his Office to be charged with the specific duty of care this amendment imposes on him. Anything less could give rise to serious concern within the community.

I support this amendment which crystallises what is happening in regard to prisoners. The Minister recently had a visit from the representatives of a family affected by the capital murder of a garda and he is aware of the sensitivities involved. That family recently broke its silence to a local paper and outlined its concerns. With much emphasis on the prisoners issue in the past, not enough has been spoken about the victims of horrific tragedies. The Minister issued a letter — I appreciate the way he expressed his views — stating that no category of prisoner will be excluded from consideration as part of the review process. The reason is that it was quite clear during the very intensive discussions that took place on prisoners' issues that if those convicted of capital murder had been excluded completely from the review process there would have been no Agreement. I am surprised at the contents of that letter which was sent to the family involved. I am surprised Sinn Féin could have such a degree of clout that the overriding concern as to whether the Agreement would be delivered seemed to hinge on the capital murder of four gardaí.

Given that people are awaiting trial for the horrific murder of Garda McCabe in the Limerick area, much will depend on how we approach the release of prisoners and equate the seriousness of the crimes with the release. It is important to bear in mind the genuine concern of the family involved. In his amendment, Deputy Flanagan refers to the likely impact of the release on the community. How would any of us feel if a person who had murdered a father, as in this case, returned to the community and lived two miles from the victim's married daughter? That would have a traumatic effect on a family. While Sinn Féin may have said that if this was not included there would be no Agreement, it must have been very difficult for the Minister, and the officials, to agree to such a request in the context of past events involving gardaí, particularly Garda McCabe.

How can we consider prisoner release in isolation given the signals that would send to the people who, in the case of Garda McCabe, are waiting to be sentenced? I fully endorse Deputy Flanagan's comments. The commission, and the Minister, should take into consideration the nature and seriousness of the offence as well as the effects such release would have on the immediate family. The family who met the Minister outlined their concerns about the release of the person who murdered Garda Seamus Quaid. The Minister is aware of how those people feel. They also arranged a meeting with our leader, Deputy John Bruton, to outline their position. I often wonder whether the victims are taken into consideration. As I said at a parliamentary party meeting, the people we are talking about are not in prison for stealing sweets from an old lady's shop but for very serious offences. For that reason I support the amendment. It makes good common sense that it should be taken on board.

I rise to speak on this amendment primarily because it is important there is discussion about these aspects of the possible release of prisoners. It is not an attempt to rewrite the Agreement reached on Good Friday. This House is dealing with the methodology of putting in place the Agreement. A number of matters require to be dealt with in that regard.

I was appalled at Deputy Ó Caoláin's contribution this morning. He had a golden opportunity, when speaking about the release of prisoners found guilty of the most horrific crimes, to say sorry on behalf of the Republican Movement, but he did not take that opportunity. The furthest he was prepared to go was to say; "I acknowledge the hurt caused by us". That is fine, but it does nothing for the relatives of the victims in terms of acknowledging the pain caused which, unfortunately for the people concerned, does not go away.

Deputy Ó Caoláin indicated that there ought to be no preconditions, which is one of the Sinn Féin mantras, but in recent years Sinn Féin set many preconditions to its ceasefires and its involvement in the political process, and all those preconditions have been met. The least we can expect in terms of the release of prisoners, some of whom will be released shortly after they have been sentenced, is that they should be obliged to comply with criteria for common decency. I ask the Minister whether one of the conditions that might be applied to a prisoner's release is denial of that person's right to live in proximity to the victims or relatives of the victims of their crimes. This is one aspect of a condition that might be applied to a prisoner release.

The other is that no contact would be made by the released prisoner with the victim or relatives of the victim unless he was invited to do so. Those are basic common decency provisions in light of the extremely generous way in which the State is dealing with the issue. We, as a democratic parliament, are in an invidious situation where people have been arrested in this jurisdiction and others and transferred to prisons in Ireland as a humanitarian gesture. People in this jurisdiction are serving sentences for relatively minor offences compared to the offences for which these prisoners were convicted and they will serve their full sentences.

It is difficult for a democratic parliament to maintain the independence of the Judiciary and the courts system and take legislation through the House in this manner. We are treading on eggshells and it is important, therefore, to give all the reassurances necessary to the victims and the public that these are extraordinary circumstances, but that concern will be had for the feelings of those who suffered at the hands of those who will be released.

I support the amendment. We have asked on numerous occasions in the House for a humanitarian approach to prisoners. On this occasion we ask for such an approach to victims and those who have lost relatives and friends, who will probably see those convicted released within two years.

I know the family of Séamas Quaid in Limerick, referred to by Deputy Finucane, and they have grave concerns about the proximity of the prisoner to them when he is released. I agree with Deputy De Rossa that there should be protection and conditions laid down whereby prisoners do not live adjacent to victims or their families or have uninvited contact with them. The hurt involved for those who have lost loved ones runs deep and it is stressful and distressing for them.

It is unfortunate that a concession was made in this area. It appears it is a fait accompli and the arrangement is agreed, but it is important to stress the feelings, sensitivities and distress of the families. I spoke earlier to a brother of Séamas Quaid and he and his family are extremely distressed. They have been in contact with families of other gardaí who have died and they feel similarly. It is important to put on record the implications and the outcome of the decision made at the time.

However, we should seriously examine and support what Deputy Flanagan proposes in ensuring that the nature and the seriousness of the offence is taken into consideration. No offence is more serious than the taking of human life, especially the lives of gardaí who died on duty. Séamas Quaid was off duty when he died but as with many other professions, once a garda, always a garda. He responded to a situation and lost his life in the defence of the right of society to order. The likely impact of the release of prisoners into the community will be significant in this case. It is important in that the effect on a community of somebody who is seen not to have served a full sentence and paid his duty to society is profound.

While I agree with the sentiments of my colleagues from Limerick West and other Deputies regarding a person or persons convicted of capital murder in this State, I draw the attention of Members to the situation in the North. A total of 299 members of the RUC lost their lives over the past 30 years and we, in this jurisdiction, do not appreciate the level of trauma and hardship for many families of these victims arising from these premeditated murders. It is only when we hear the sentiments expressed by Deputies Finucane and Neville relating to a member of the Garda that we begin to appreciate the fact that 299 members of the RUC lost their lives and I regret that we have not appreciated that to such an extent as we might. There is nothing in the amendment that would cause the Minister difficulty in terms of contravening or interfering with the Agreement and I hope he accepts the amendment.

I thank the Deputies for their contributions on this extremely sensitive and difficult matter. I have the same difficulties in a general sense with the amendment tabled by Deputy Flanagan as I had with that tabled by Deputy Joe Higgins earlier. As I explained, the general approach of the Bill is to require regard to be had to the relevant part of the Agreement in considering particular cases for release. The Agreement specifically provides that the review process will allow account to be taken "of the seriousness of the offence for which the person was convicted and the need to protect the community". That is set out in the Schedule to the legislation.

Those factors fully reflect the issues mentioned in the amendment, but, for reasons I outlined earlier, it is more sensible to stick with the wording of the relevant part of the Agreement contained in the Schedule. In those circumstances I am not in a position to accept the amendment. In introducing this legislation, I am giving effect to that portion of the Agreement which relates to prisoners. In doing that I am giving effect to the wishes of all parties, Members and the overwhelming majority of the people, North and South. I sympathise with the situation in which the families of victims and the victims find themselves. I had meetings with the families of gardaí who lost their lives. There was nothing I could say that would in any way ameliorate the sense of hurt and grief which they felt. The unfortunate human dilemma, with which we are all faced here, is that it is of fundamental importance that future generations of Irish men and women should not be subjected to the nightmares of the past and that Ireland would grasp the opportunity which presented itself. In that context difficult decisions had to be taken — decisions which have a farreaching effect and which reach into the human condition.

Many people on this island are being asked to pay a far higher price than others for this peace. Unfortunately I have to ask them to pay that price and obviously it gives me no great pleasure. We had to try to prevent further death and destruction in our society and we had to ensure we would not replace a segment of a generation which was bereaved with a new segment of a future generation, and generations, which would also be bereaved.

We are trying to ensure future generations, including this generation, will not be imprisoned by the past, confined by history and dictated to by what had gone on before. In those circumstances difficult decisions had to be — and were — taken. The sympathies of all the people of this island go out to those families of victims and victims of violence.

I have in the past gone on the record in relation to the case of Detective Garda Jerry McCabe. I do not believe it would serve any useful purpose to repeat what I said then other than what I said then stands. I have also gone on the record in relation to the position of people convicted of capital murder. I do not believe it would serve any useful purpose to repeat what I said in relation to those matters. Ireland owes a great debt of gratitude to the Garda Síochána who died in duty and who served the State so well.

As with previous amendments in my name, I am reluctant to divide the House on the issue. The Minister's reasons, as put forward, seem to indicate he is prepared to leave it to the text of the Agreement which states: "The review process would provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences for which the person was convicted and the need to protect the community.".

This deals in some form with paragraphs (a) and (b) of the amendment. Will the Minister give an undertaking that paragraph (c) — the behaviour and characteristics of the qualifying prisoner — will be taken into consideration in the context of any formula used by him to determine whether a person is a qualifying prisoner within the meaning of the Act? Will he agree there is no great difference between subsection (2) (a) — the nature and seriousness of the offence — and (b) — the likely impact of the release on the community — and that that would appear to be incorporated in the text of the Agreement? If the Minister is prepared to give a commitment to consider paragraph (c) I will not divide the House.

The text of the Agreement as set out in the Schedule to the Bill is clear. I have outlined my view previously. The text of the Agreement encompasses the amendments tabled by Deputy Flanagan. There is a difference between deciding who is a qualified prisoner and the whole question of release. These are two separate and distinct questions. Earlier there was the whole question of what kind of conditions would be imposed and if conditions could be imposed. In deference to the exercise of the statutory power conferred on me by the Criminal Justice Act, 1960, and on the Government, pursuant to the Offences Against the State Act, 1939, all cases and the circumstances surrounding them, will be considered pursuant to those two Acts.

Either-or, or both.

Regard must be had to the legislation. I made it clear earlier that either the 1939 Act or the 1960 Act could apply, depending on the circumstances. I outlined also in what circumstances the 1939 Act could not apply. I cannot go further than that. I am satisfied from my reading of the Agreement and the text in the Schedule that the factors which Deputy Flanagan put forward in his amendments are already addressed in the Agreement. In the circumstances I hope he will see his way to withdrawing his amendment and I trust I have allayed his concerns in that respect.

On a point of order as to the amendments which have not yet been taken, must I formally move them to allow me to resubmit them for Report Stage, or am I precluded from discussing them if they are not moved?

There will be no difficulty resubmitting the amendments for Report Stage.

As it is now 5.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That each of the sections not disposed of is hereby agreed to, and that the Schedule and Title are hereby agreed to."

Question put and agreed to.

Acting Chairman

The Bill will be considered on Report Stage this evening in accordance with an order of the Dáil of this day.