Prisons Bill 2006 [Seanad]: Report Stage.

Amendment No. 1 in the name of Deputy Ó Snodaigh arises out of Committee Stage proceedings. Amendments Nos. 2 to 6, inclusive, are alternatives and Amendments Nos. 7 and 50 are related. Therefore, amendments Nos. 1 to 7, inclusive, and amendment No. 50 will be taken together by agreement.

I move amendment No. 1:

In page 6, to delete lines 20 to 34, to delete pages 7 to 11 and in page 12, to delete lines 1 to 9.

This amendment pertains to prisoner escort services. I stated on Second Stage and Committee Stage that I am opposed to the privatisation of these services. The imprisonment of people should never be a profit making exercise but if we adopt Part 2 of the Bill it will be the start of the privatisation of the Prison Service. I do not see the point of Part 2, given that the Tánaiste and Minister for Justice, Equality and Law Reform has said he is opposed to the outsourcing. The explanatory memorandum to the Bill states: "it is not intended to outsource prisoner escort services in the foreseeable future." I recall the Minister using similar words when he said it was not intended to implement the Garda Reserve in the foreseeable future, yet he announced the reserve three months later. As I do not think his words are good enough when he says he would prefer to retain the prisoner escort service within the public service, I recommend that we reject Part 2 and any reference thereafter to prison custody officers.

A number of reports have been compiled on the effect of privatising prisons and prison services in other jurisdictions. The experience elsewhere has been that the privatisation of prisoner escort services was the forerunner to the introduction of a fully privatised prison system. Ancillary services such as escorting prisoners are points of least resistance before the full privatisation assault is made against a prison service. Anybody who has studied the debacle that resulted from the privatisation of prison services in the US and England will understand why we should not go down that road. In other jurisdictions, the privatisation of prison systems has been reversed. That is the reason why I submitted this amendment.

Ideologically, I do not believe privatisation should take place. The Minister's argument was that he could not see this happening as long as the current service is cost effective, which by implication means it should make a profit or break even. However, the service will never make a profit or break even but will always be an expense. If the Minister holds a race to the bottom in terms of seeking the lowest possible price for a prisoner escort service, dangers arise to the security of the service. If it is retained in the public sector, there is at least some hope that the security of the escort service can be maintained. Public servants often have a greater loyalty to the State than employees paid a minimum wage and struggling to pay off debts, who as a result could be susceptible to outside interference. Account should therefore be taken of that cautionary aspect and the same applies throughout the prison system.

I urge the Minister and others to watch the documentaries originally aired last year on the implications of privatised prison services, particularly given the situation in the United States, where bribery was rife, prisoners were abused and the system was intent on ensuring that as many rather than as few were imprisoned as possible. We should seek to ensure that only those who deserve it should be in prison rather than try to maximise prison numbers for the sake of profits. There is an incentive for a company which profits from incarceration to seek to increase incarceration rates.

Part 2 provides for prisoner escort services. Essentially, we are dealing for the purposes of these amendments with sections 4 to 10, inclusive.

I am not in favour of rushing towards the establishment of prisoner escort services. I understand that the present arrangements are working satisfactorily and, from that point of view, I do not wish to put into operation such services unless it is necessary. However, given that we are dealing with a Bill which will become the legislative basis for the future, it is worthwhile to make provision in the Statute Book for the possible establishment of prisoner escort services. For that reason, I am not in favour of the approach adopted by my Sinn Féin colleague and support the retention of Part 2 in the Bill.

However, as I noted on Committee Stage, improvements could be made to several provisions in Part 2. My first amendment relates to section 7(9) and the provision involving the revocation of a certificate for a prisoner custody officer and the procedures that would apply. Ultimately, it is envisaged the matter will land on the desk of the Minister and the issue is what should happen then. A provision should be inserted so that the Minister would deal with such matters without delay and the file would not be left sitting there. Pending the decision, the prisoner custody officer should not be entitled to perform his or her duties. In addition, I propose the officer and the contractor by whom he or she is employed should comply with the directions issued under section 10. I put forward the proposal tentatively as an improvement on the arrangements regarding the revocation of a certificate for a prisoner custody officer.

My next amendment concerns the prohibition of the unauthorised disclosure of information under section 9, with which I agree. While a prisoner custody officer should not disclose information relating to a prisoner, which is obtained by him or her during her employment, unless authorised by the Minister to do so, the section could be improved. I am influenced by the Minister who is known for having a loose lip and, as a consequence, it is necessary to insert restrictions. Accordingly, my amendment provides that the Minister similarly shall not make public or cause to be made public any information relating to a prisoner that could reasonably be considered to be confidential other than essential details regarding name, date of birth and so on. While I do not expect the Minister to be in office much longer, he may have set an example that might be regarded as a precedent by a subsequent holder of the office.

My third amendment addresses what should be done about reports to the Minister. Under section 10, he or she will appoint an officer to monitor the performance of contractors. I assume the officer will be a departmental official and the person so appointed will not later than 31 March — an important date every year because it is my birthday — produce a report for the Minister on the performance of the contractor. The issue then is what should happen the report and I propose that such reports should be laid before the Houses of the Oireachtas not later than 31 May annually. The Minister has set a precedent regarding the reports of the excellent and dedicated Inspector of Prisons and Places of Detention, Mr. Justice Kinlen, by considerably delaying their publication. The legislation should provide that this bad precedent should not be followed by the Minister's successors. That is the reason I have specified a date before which such reports should be laid before the Oireachtas. Those are my amendments to Part 2 and I am happy with the remaining provisions in this Part.

We are dealing comprehensively with Part 2, which deals with the prisoner escort services, and, in particular the Minister's original threat to privatise such services as a way of leveraging an agreement with prison officers to operate in a way that satisfied him. He gave a guarantee to the House on both Second and Committee Stages that he would not activate these provisions and I would rather that they were not being pursued, since he has a satisfactory arrangement. If staff were totally obdurate or there was great difficulty operating a working agreement with staff, alternatives could be examined but, in the absence of that, it is provocative to include this Part, when it is patently, in the Minister's words, "not required". For that reason, I agree with the general analysis of Deputy O'Snodaigh. Deputy Jim O'Keeffe made a good argument regarding the reporting mechanism, as he did on Committee Stage.

My amendment No. 3 deals with the functions of a prisoner custody officer. Many of these officers could potentially be civilians and the Minister is giving them powers to search prisoners in transit in circumstances where it might be believed something untoward was concealed on their person. While I fail to disagree with the power of search because that might be necessary not only to protect the escort officer but also the public, I disagree with the notion that such officers should have the power to conduct an intimate search of a prisoner. The Minister instanced a prisoner carrying a concealed weapon but the custody officer has the power to require a prisoner to remove clothing, including outer garments, under the section. The power to conduct an intimate search should not be available except in restricted conditions. The power is available to prison officers in the confines of a prison and to members of the Garda. If such a search were necessary, the prisoner should be brought to a Garda station or a secure room in a court building and searched by a garda. We should not provide that a civilian could conduct an intimate search.

I understood from the Minister's response on Committee Stage to this amendment that he was reasonably amenable to it. Many of the issues I raised on Committee Stage have been taken on board in amendments tabled by the Minister on this Stage, for which I thank him, but this issue has not been addressed, which I regret. That is the only other point I wish to make in regard to this group of amendments.

Deputy Ó Snodaigh is worried about a race to the bottom in the Irish Prison Service but I believe we are already there. We have a prison system which is rotten to the core. We have appalling levels of drug use which can only be explained by collusion between the inmates and the staff. We have rates of staffing which are three times the level in the UK, yet there seems to be no attempt to come to grips with the difficulties relating to extraordinary levels of overtime within the Irish prison system. We have tales of abuse, violence and savagery which would make one's hair stand on end. How can this happen with the levels of staffing in Irish prisons? Something is clearly rotten to the core. We have report after report, which are buried at the back of the Department's website, outlining a chronically dysfunctional system. We have Dickensian conditions in many, if not most, of our prisons.

I do not have any great ideological hang-up as to whether the State or the private sector would do a better job. The experience abroad is that if one brings in the private sector, it is really only motivated by profit. We should call a spade a spade and acknowledge that there are significant difficulties within a chronically dysfunctional prison system. Unless the Minister faces up to that, we will go nowhere.

This absurd idea of a super prison in the green fields of north Dublin will not solve the systemic problems of our prison service. We need to go much further much more quickly and ensure we work with the inmates in the prison system who have high rates of illiteracy, who no doubt have experienced high rates of abuse of all kinds, who come from the poorest areas and who have been deprived of education, training and many other services over the past few years because of this ideological face-off between the Minister and the prison officers.

We should point out where the difficulties lie. There are huge difficulties within the Irish Prison Service and we need radical reform of the management of prisons and the prison system itself. I worry this Bill will not address those kinds of issues.

Part 2 of the Bill, which amendment No. 1 seeks to delete, allows for the Minister, with the consent of the Minister for Finance and approval of the Government, to enter into an agreement with the contractor for the provision of prisoner escort services. It also provides for the conditions under which a person can be certified as a prisoner custody officer and the circumstances in which such certification can be revoked as well as the functions of such an officer.

Deputies will be aware that this Part of the Bill is an enabling provision and that it is not intended to give effect to this provision once the in-house prisoner escort service corps, PESC, which is being established in the context of the acceptance by staff of the proposal for organisational change in the prison service, continues to be effective in terms of cost savings and in regard serving prisoner escorts.

The Minister previously informed the House of the success achieved by the prisoner escort service corps. In staffing terms, the escort corps operates on average more than 33% more efficiently on court escorts than the previous overtime based operating system. As long as this service continues to operate efficiently and in a cost effective manner, there is no need or desire to contract out the service. However, should the situation arise where the service is no longer provided in a cost effective and efficient manner, it is essential that a provision should exist allowing the Minister, or his successor, to contract out the service. Such a provision is made here. While it is not intended to enforce this Part of the Bill, it should be in place as a reserve position. For these reasons, I do not intend to accept these amendments.

Amendment No. 50 is consequent on the acceptance of amendment No. 1. As I am not accepting amendment No. 1, amendment No. 50 is unnecessary. Amendment No. 2, tabled by Deputy Jim O'Keeffe, proposes the insertion of two new subsections into section 7. The amendment would provide for the Minister to deal speedily with any written complaint received from an officer appointed to monitor the escort service, a prison governor or the Garda Commissioner in regard to the conduct of a prisoner custody officer. It also provides for the suspension of a prisoner custody officer pending a decision on a complaint concerning his or her conduct. In so far as the first part of the amendment is concerned, it goes without saying that there will be no undue delay in dealing with complaints in regard to the conduct of a prisoner custody officer. It is not in the Minister's interest to delay dealing with this matter——

It goes without saying.

——given the sensitivity of the issues in question. It is not, however, necessary to provide in legislation that there be no delay.

A freedom of information request was required to get the inspector's report last year.

The effect of the second part of the amendment providing for the suspension of a prisoner custody officer pending a decision on a complaint concerning his or her conduct could result in the encouragement of vexatious complaints from prisoners in order to have prisoner custody officers removed from duty. I am satisfied section 7(9), which provides for referral of complaints to the Minister, is adequate to deal with the points raised by Deputy O'Keeffe. A direction in regard to suspension could only be made having regard to the gravity of the offence and the credibility of the complaint. The amendment is not necessary and it is unwise to make legislative provision of the nature sought for the reasons I have outlined.

Amendment No. 3 was put to the Minister on Committee Stage and, having some sympathy with the points raised, he agreed to consider the matter further. The amendment proposes to insert additional text at the end of section 8(2) making it clear that a prisoner custody officer may not conduct an intimate body search of a prisoner. As the Minister previously stated, routine and random searches of prisoners are conducted on a daily basis, including of those going to, and returning, from court, for security and safety reasons and, in particular, to ensure contraband is kept out of the prison environment. These searches are essential in reducing the incidence of drugs in prisons.

However, I assure Deputies that intimate searches — in this regard I refer to internal searches — cannot be conducted. A prohibition of such searches is contained in the draft prison rules. Rule 6 sets down provisions relating to searching a prisoner and specifically prohibits in paragraph 9 invasive searching of the orifices of a prisoner's body. A number of the other provisions are also made in this rule concerning the conduct of searches, such as the number of prison officers present at a search and the requirement that searches are carried out by officers of the same gender as the prisoner.

As has been stated in regard to previous amendments, a prisoner custody officer will be required to comply with these rules as provided for in section 8(7). In these circumstances, the provisions I have cited are sufficient to meet the concerns of Deputies. Again, the Minister is not in favour of distinguishing between the obligations on prisoner custody officers and those on prison officers. It is appropriate that both prison officers and prisoner custody officers with responsibility for prisoners should abide by the same code and obligations and duties set down in the prison rules.

For similar reasons, I will not accept amendment No. 4, tabled by Deputy Ó Snodaigh. The prison rules will apply to the prisoner custody officers in the same way as they apply to prison officers, including the obligations in respect of the dignity and human rights of prisoners which would encompass an obligation to ensure the health and safety of a prisoner. It is also worth mentioning that section 8(6)(c) requires a prisoner custody officer, when escorting a prisoner from court to a prison, to give to the governor of the prison to which the prisoner is being transferred any information relating to the prisoner’s health of which the officer is aware.

Amendment No. 5, tabled by Deputy Ó Snodaigh, appears to address a concern raised by the Deputy on Committee Stage that a situation may arise in which an officer might come across information which might be useful to prevent the commission of a crime and that the officer may require the approval of the Minister to pass this information on to the Garda. In these circumstances, I am not prepared to accept this amendment. Section 9(1)(a) provides that a prisoner custody officer can disclose information relating to a prisoner where authorised by the Minister to do so. The subsection could allow for the inclusion of a revision in the contract of employment of a prisoner custody officer of the necessary authorisation to disclose information to the Garda where it would be considered useful in preventing the commission of an offence. I am disinclined to introduce exceptions to the prohibition on the disclosure of information by prisoner custody officers, as to so do may increase the risk of an inappropriate disclosure. It may also be the case that such an exception to the prohibition rule as proposed in the amendment could be open to widely different interpretations as to the situations where disclosure should take place and to whom.

Amendment No. 6 tabled by Deputy O'Keeffe concerns the non-disclosure of information relating to prisoners and details of information the Minister may not make public in respect of a prisoner, unless it concerns a matter of national importance. The proposed amendment aims to restrict what the Minister can say in public about an individual prisoner's case. The amendment is unnecessary and could result in the Minister being unable to answer parliamentary questions on prisoner cases.

There is nothing new in that.

It should be emphasised that the Minister is obliged to respect the constitutional rights of all persons, including prisoners. It should also be noted that the amendment is to Part 2 of the Bill which relates solely to the prisoner escort service and agreements for the provision of such services. It would not have any effect of relevance to escort services. Moreover, this Part is an enabling provision and, as has been stated previously, it is not intended to commence it for as long as the current arrangements in respect of the provision of the prisoner escort service continue to operate effectively and efficiently in both cost and operational terms.

Amendment No. 7 tabled by Deputy O'Keeffe would require that a report by the officer appointed to monitor the performance of a contractor should be laid before the Oireachtas on or before 31 March each year. I do not intend to accept this proposal. A report on the activities of the contractor may be commercially sensitive or contain material of a security nature. It is not my intention that such reports should be made public. I am aware of the Deputy's concerns and what he seeks to address with the amendment. However, I remind the House that the Minister will have responsibility for entering into an agreement with the contractor for the provision of escort services and that the Minister will have responsibility for certification of officers.

Given the Minister's responsibility in this regard, it is reasonable to provide a system for the monitoring of contractors. It is not the case, nor can it be expected, that concerns regarding performance that may justify the termination of an agreement would necessarily come to the Minister's attention. This provision, therefore, is a safeguard with a twofold objective, namely, to ensure the grounds justifying the initial agreement continue to apply and that nothing has arisen in the course of its operation that may lead to security concerns that would justify its termination. However, I do not discern justification for the publication of such reports. Furthermore, to require publication could have a negative impact on the content of such reports. The proper monitoring of the operation of the agreement with the contractor requires full and frank reporting on the operation.

When I made my initial contribution, I was unaware that my other amendments were being grouped with the amendment. The amendments were simple, given my acceptance of the reality that the Minister would secure the passage of the prisoner escort service. Amendment No. 4 attempts to ensure prisoner custody officers would have a duty to ensure the health and safety of prisoners to avoid the circumstances that arose in the case of Mr. Gary Douch, whose health and safety were not taken into account fully. Such events should not occur during the transfer of prisoners. I refer to the scenario in which one prisoner might attack another.

Amendment No. 5 is intended to ensure prisoner custody officers would not be hindered in forwarding information they might come across that would prevent the commission of a crime, in that they would not feel obliged to go to the Minister, with the attendant delays, to ensure such information was forwarded.

As for my main amendment, to delete Part 2 completely, the Minister of State has just stated the current arrangements will continue. If that is the case, there is no need for the provision and it should have been withdrawn. Thereafter, if such an eventuality was to arise, it could be reinstated in full. The work on it has been done and it could be constituted as a Bill in itself consisting of four or five pages. The Minister of State repeated the comments made by the Minister for Justice, Equality and Law Reform on Committee Stage as to whether the current arrangements will continue to be cost effective and the service run in an efficient manner. How does one define cost effective? I still believe this provision should not form part of the Bill.

I have no further comment to make.

While I will not belabour the point, as Deputy Howlin has noted, this is being used to blackmail prison officers. This had been threatened and the Minister is now delivering on that threat to ensure there will be no labour unrest among prison officers. Were there to be such unrest, I guarantee the Minister would introduce this provision as rapidly as he introduced the Garda Reserve after he secured its passage. He did so, despite having stated at the time that he had no intention of introducing it in the near future. Three months later, he did.

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

As this question has been agreed to, amendments Nos. 2 to 6, inclusive, cannot be moved. Is amendment No. 7 being pressed?

Why could amendment No. 2 not be moved? As it happens, I was not pressing it.

The entire section has been put and approved as it stands.

The decision in respect of amendment No. 1 was to preclude the deletion of the entire Part of the Bill. That should not stop an amendment.

Acting Chairman

Amendments Nos. 2 to 6, inclusive, were alternatives. My advice is that——

Amendment No. 2 was not.

The question put in respect of amendment No. 1 was, "That the words proposed to be deleted stand". Consequently, the Bill, as published, stands.

It seems from a procedural perspective that if I wanted to go to the wall in respect of amendment No. 2 which I do not——

The Deputy should not.

The Deputy should go to the bar.

Acting Chairman

As the House has decided that the words in the Bill as printed stand, the amendments cannot be put. The House has decided on the matter.

This appears to be somewhat undemocratic. However, I will not quibble unduly about it at this hour of the night. Hence, I will not press further on the procedural point.

As for amendment No. 7, I would like to see a report going before the Houses of the Oireachtas. However, if the Minister is not prepared to accept it, I will not trouble the House further in this regard. Nevertheless, it would be an improvement to involve the Houses of the Oireachtas in this matter and ensure they would receive reports within a reasonable time. However, I will not press the issue further.

Amendments Nos. 2 to 7, inclusive, not moved.

Acting Chairman

Amendment No. 8 arises from committee proceedings. Amendments Nos. 9 to 13, inclusive, and No. 15 are related, while amendment No. 14 is an alternative to amendment No. 13. Amendments Nos. 8 to 15, inclusive, will be discussed together.

A substitute amendment list contains an alternative amendment No. 13. Is that in substitution for amendment No. 13 on the green list or in addition to it?

Acting Chairman

It is a substitution.

I move amendment No. 8:

In page 12, line 21, to delete "may" and substitute "shall".

This deals with issues arising under Part 3 which relate to prison discipline. This amendment is relatively technical. Regarding an inquiry into alleged breaches of prison discipline, it is not enough to provide in the Bill that the procedure relating to an inquiry may be specified in the prison rules. Surely prison rules should be rooted in the legislation. The purpose of this amendment is to require that the procedure related to an inquiry shall be specified in the prison rules. At first sight it is a technical amendment but it is not quite that technical. The Bill would be improved by the change.

As Deputy Jim O'Keeffe stated, Part 3 of the Bill deals with prison discipline and it outlines the types of sanctions available for breach of prison discipline. They are listed in section 13, the text of which includes the following:

13.—(1) One or more than one of the following sanctions may be imposed on a prisoner who is found by the governor to have committed a breach of prison discipline:

(a) caution;

(b) reprimand;

(c) confinement in a cell (other than a special observation cell) for a period not exceeding 3 days;

(d) prohibition, for a period not exceeding 60 days, on—

(i) engaging in specified authorised structured activities or recreational activities,

(ii) receiving visits (except visits for the purpose of giving medical advice or treatment to the prisoner or those from his or her legal adviser, a chaplain or member of the visiting committee to the prison, the Inspector of Prisons, a judge or representative of a court or tribunal or a representative of the Minister, Parole Board, Human Rights Commission or European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment),

My first amendment in this group is on section 13(1)(d)(ii) and deals with the prohibition on receiving visits. Exceptions are laid out in the section and I propose amendment No. 9 which would include among those exceptions a public representative and, in the case of non-Irish nationals, a diplomatic or consular officer of the person’s country of nationality. A compelling reason exists for this. It is a matter of proper form that Members of this and the other House should have access to prisoners.

We debated this matter on Committee Stage and the Minister pointed out the term "public representative" is extremely broad. I accepted the notion it would be confined to Members of the Oireachtas. The Minister went some of the way in amendment No. 10 where he suggests a member of Dáil Éireann for the constituency in which the prisoner ordinarily resided would be entitled to visit.

As a justice spokesperson, I believe justice spokespersons should be entitled to visit any prisoner because we deal with justice matters. Having spent all of Monday at the Morris tribunal, I note my interest in affairs well outside my constituency occupy quite a degree of my time as justice spokesperson. I was involved in incidents in Abbeylara, issues such as the Sheedy case in Dublin and a variety of other matters. It is important the role of parliamentarians is recognised as far more than simply a representative duty for their constituency.

As in other parliaments, this House may have individuals who consider the issue of campaigning for prisoners' rights to be one of their core functions. The notion they would not be able to visit as a right prisoners from constituencies outside their own is a wrong construction. I hoped the Minister would compromise on my proposal to open it to any public representative and confine it to Members of Dáil Éireann and Seanad Éireann.

I am not sure how great a latitude the Minister of State present has to deal with this issue. If the Tánaiste and Minister for Justice, Equality and Law Reform was here I could convince him of this point. He is normally amenable to it. I hope I can convince the Minister of State to drop the reference to the constituency. A Member of Dáil Éireann should be entitled to visit any prisoner.

I do not see any compelling reason why it should be confined to the constituency involved. A prisoner may not be able to get the attention of a Dáil Deputy for his or her constituency. He or she might be an active member of a political party not represented in the constituency and want to reach out to a representative of the party he or she supported and with which he or she was associated. It would be quite wrong to deny him or her the right to reach that party. I hope the Minister of State amends the amendment. On that basis I would happily withdraw my amendment with regard to a public representative.

I see the Minister accepted the point on non-Irish nationals having access to diplomatic or consular officers and tabled amendment No. 12 which inserts, "if the prisoner is a national of another state, a diplomatic or consular officer of that state". This fully meets my requirement and I thank the Minister for tabling amendment No. 12. It always bemuses me somewhat that even if the principle of an amendment drafted on this side of the House is accepted as quite right the Government will table its own amendment. I will not make much of the point. I welcome the Minister's acceptance of the principle I advocated.

Amendment No. 11 proposes to insert ", United Nations Committee against Torture" after "Commission". This is captured in the alternative amendment No. 13 which states, "or the United Nations Committee against Torture or any document relating to the registration of electors (including entry in the postal voters' list) or to voting at an election or a referendum". Both amendments are transposed into one and perhaps the Minister of State will explain why. It captures the essence of what I want, which is to expand it to include the United Nations Committee against Torture or any document relating to the registration of electors or to voting at an election or a referendum.

The Minister of State was not present at the debate on Committee Stage. The reason the committee on torture was not included in the visiting groups is that the United Nations does not visit. However, it communicates in writing which is why it is linked to the receipt of ballot papers and election material. If that is the reason they are grouped together I fully accept and welcome it. All of the proposals I made save one on the broadening of access by a public representative have been fully met and I am greatly appreciative of the Minister for this and for genuinely engaging on Committee Stage and listening to the arguments I made.

I presume amendment No. 13 is an alternative to amendment No. 14 rather than in addition to it. If this is the case, and amendment No. 14 is fully captured by amendment No. 13, I will accept it and withdraw amendment No. 14.

Amendment No. 15 states, "The imposition of a sanction shall not be stayed by virtue of a petition under section 14 or of an appeal under section 15 unless either the governor, the Minister or the Appeal Tribunal so directs”. As I stated on Committee Stage, the Bill does not state whether the sanction can be imposed pending an appeal. I believed the solution was to allow the flexibility I suggest in amendment No. 15, whereby it would apply unless the governor or the Minister directed otherwise. It is a useful amendment although not of great importance.

By and large I am grateful to the Minister for listening and accepting the thrust of what I suggested on Committee Stage with regard to this section.

The Tánaiste and Minister for Justice, Equality and Law Reform addressed amendment No. 8 on Committee Stage. The issue received consideration but the view reached was that it would be unwise to prescribe a mandatory procedure in prison rules when we have a new start-up position regarding the investigation of alleged breaches of prison discipline. In light of ongoing experience we may find that the procedure should be amended with some urgency, perhaps on a number of occasions. It is not an easy matter to revise prison rules on a regular basis. Deputy Jim O'Keeffe will be aware the new rules took a number of years to complete. There could also be a temptation and pressure to amend other rules at the same time and such changes could end up taking some considerable time to finish.

I will later move amendments Nos. 10, 12 and 13. Amendments Nos. 10 and 12 are an alternative to amendment No. 9 proposed by Deputy Howlin. On Committee Stage, the Minister agreed with Deputy Howlin that provision should be made to ensure visits from public representatives, and in the case of prisoners who are nationals of other states, that diplomatic representatives would not be prohibited as part of a sanction. The Parliamentary Counsel has drafted amendments Nos. 10 and 12, which will ensure that necessary provision is made and amendment No. 9, consequently, is not necessary.

Amendment No. 10 specifies Members of Dáil Éireann for the constituency in which a prisoner ordinarily resides would not be prohibited as part of a sanction from visiting a prisoner. The Parliamentary Counsel advises that the wording proposed by Deputy Howlin in amendment No. 9, specifically the term "public representative", is too wide, and that a clearer text is preferable. The current text provides this clarification.

Did the Minister listen to what I said at all?

I have listened to the Deputy's comments. Although I cannot address the position tonight, I am prepared to convey the point made by the Deputy to the Tánaiste. We will get his views on that before tomorrow's session.

What are we doing here at all?

I take the point made by the Deputy, but I clearly must ensure my boss is happy with the decisions I take. The Deputy should not push it. Amendment No. 12 is an improved text to that proposed by Deputy Howlin.

Government amendment No. 13 is an alternative to amendments Nos. 11 and 14 from Deputy Howlin. On Committee Stage, the Minister agreed that prisoners should not, through sanctions, be prevented from voting.

That would be unconstitutional, for a start.

The Parliamentary Counsel has proposed the wording in amendment No. 13 as an alternative. The word "election" would cover voting at general, local and presidential elections as well as elections to the European Parliament. This wording has also been approved by the Department of the Environment, Heritage and Local Government. Amendment No. 14, as a consequence, is unnecessary.

The inclusion of the UN committee in this amendment takes account of Labour Party amendment No. 11 from Deputy Howlin. On Committee Stage, the Deputy agreed that the UN committee, unlike the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, does not have a mandate to carry out periodic visits to institutions.

However, Deputy Howlin considered that it may be appropriate to ensure that letters and other correspondence between prisoners and the UN committee would not be published under section 13(1)(d)(iii). I agree with this proposal and the Government amendment reflects this. As a consequence, amendment No. 11 is unnecessary.

The revised text of section 13(1)(d)(iii), if accepted, will read:

(iii) sending or receiving letters (except letters from a person mentioned in subparagraph (ii)), or any document relating to the registration of electors (including entry in the postal voters’ list) or to voting at an election or a referendum.

Amendment No. 15 from Deputy Howlin provides that a sanction shall not be stayed by reason of lodging a petition under section 14 or an appeal under section 15 unless directed by the governor, Minister or appeal tribunal. I cannot accept this amendment as to do so could cause a sanction to be carried out in advance of the consideration of the petition or appeal, which effectively could negate any decision of the Minister or tribunal in favour of the prisoner.

If, for example, a sanction or confinement to cell for three days is imposed and carried out and the prisoner petitions the Minister, it may be the case that the sanction will have to be carried out before the Minister has had the opportunity to consider the petition.

I have some sympathy for the Minister of State. I do not know why he does not just photocopy his notes and distribute them because if there is no engagement, we may as well be speaking to the wall outside. When I came to the House earlier, we had a discussion with the intention of facilitating the passage of the Bill. There is no point facilitating the passage of the Bill if we cannot get an answer for a very simple amendment being put by Deputy Howlin relating to public representatives.

I take the point that the amendment may not use the best terminology. At the very least, the amendment from the Minister should have respected the other House, with the wording being "a Member of Oireachtas Éireann".

As Deputy Howlin has stated, many people have been in prison or are likely to be in prison. Some of them wishing to communicate their experiences in prison have been in contact with my office, although they are not all from my constituency. Some were previously resident in my constituency but have moved to Kerry, Cork or wherever. As they knew me in my role as a public representative, they felt the best person to go to was the one they knew.

If this is tied to a constituency, limits are being imposed. As we have so many three-seat constituencies, prisoners could be limited to three people. As Deputy Howlin has noted, these people may not necessarily represent the prisoner's political viewpoint or perspective on prisons and punishment. The prisoner in question may wish to seek out a champion of prisoners, prisoners' welfare or prisoners' families. That is usually the case.

Many in this House have championed such issues and they are the people prisoners will go to. Many years ago, one of the members of Labour, Deputy Costello, was a member of a prisoners' rights organisations. He may have been a founding member — I am not sure. I believe he would still get representations from across the city and across Ireland because of that association. If we accept the Minister's amendment, he could not visit those people in prison if they were not from his constituency.

It is a pity the Minister of State cannot get an official to ring the Minister, Deputy McDowell, wherever he is dropping a prison on some unsuspecting community. The official could ask about the amendment, the type of which he indicated on Committee Stage that he would accept, and ask for advice. Otherwise this will continue into tomorrow. I am not pushed either way as I will be here tomorrow anyway to argue all my amendments.

The points being made are valid. The current proposed formulation is too restrictive. I am already aware of a lady proposing to stand for election to the Seanad, Valerie Bresnihan, whose central platform is prison reform. She has a lifelong abiding interest in this area. I wish the lady all the best but I do not even know her politics. I believe she is totally independent. If she were to succeed in her bid, as well she might, it would be quite outrageous if she were restricted from visiting prisons as somebody who would be centrally involved in the issue. I urge the Government to reconsider the current restrictive formulation.

The Minister of State indicated previously that he listened carefully to what is now a cross-party argument. I was going to offer my own amendment but I understood the Minister would be coming back with an amendment.

I am prepared to discuss it with the Tánaiste.

How will we deal with it when the Acting Chairman puts the question? We are on Report Stage.

Could a deferral until tomorrow be decided on by common consent or agreement?

Is that possible?

Otherwise, we must proceed. Is there a way to handle this matter on an all-party basis? Perhaps the Clerk, an expert in these matters, might advise us.

Would the Minister of State be brave enough to accept "a member of the Oireachtas"?

A member of Dáil Éireann in lieu of amendment No. 10.

No, a Member of the Oireachtas.

That is excellent and I thank the Minister of State.

That means the Minister of State would need to delete "for the constituency".

Acting Chairman

I am advised that it should read "a member of the Houses of the Oireachtas".

Perfect. As usual, we are guided by the expertise of the draftsperson.

I have a small point to make. I welcome the change, but if one inserts "a member of the Houses of the Oireachtas", what about "for the constituency" in respect of Senators?

That has been dropped. It will just read "a member of the Houses of the Oireachtas".

No restrictions.

Acting Chairman

Is Deputy Ó Snodaigh satisfied?

Amendment, by leave, withdrawn.
Amendment No. 9 not moved.

I move amendment No. 10:

In page 13, line 8, to delete "or" where it secondly occurs and substitute the following:

", a member of Dáil Éireann for the constituency in which the prisoner ordinarily resided,".

I move amendment No. 1 to amendment No. 10:

In line 2 of amendment No. 10 to delete the words "Dáil Éireann for the constituency in which the prisoner ordinarily resided," and substitute the following:

"the Houses of the Oireachtas,".

Amendment to amendment agreed to.
Amendment No. 10, as amended, agreed to.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 13, line 12, after "Punishment" to insert the following:

"or, if the prisoner is a national of another state, a diplomatic or consular officer of that state".

Amendment agreed to.

I move amendment No. 13:

In page 13, line 14, after "subparagraph (ii)” to insert the following:

"or the United Nations Committee against Torture or any document relating to the registration of electors (including entry in the postal voters' list) or to voting at an election or a referendum".

Amendment agreed to.
Amendments Nos. 14 and 15 not moved.

Acting Chairman

Amendments Nos. 16 to 18, inclusive, are related and will be discussed together.

I move amendment No. 16:

In page 14, line 34, after "imposition" to insert the following:

"or within 7 days of a decision of an Appeal Tribunal affirming the sanction so imposed".

This is a net point. I am advised that the provision to petition the Minister is somewhat flawed in that it cannot operate following the exhaustion of the appeals process. My amendment would create a defined gap and an orderly consequence.

My amendment is on the composition of an appeal tribunal. Unusually for a lawyer, I object to confining the appointment of any person to the tribunal to practising barristers or solicitors of not less than seven years standing. The Bill is too restrictive, as many people with expertise in this area could be excellent members of an appeal tribunal. I am considering former prison governors or——


There is no reason a Deputy with an interest in the matter could not do as good a job as a member of an appeal tribunal. There is no point in restricting membership. Let it be a matter for the Minister of the day to make the appointments. Like the current Minister, who has run out of potential appointees at the bar because most of his friends have been appointed to various positions on tribunals and elsewhere, the Minister of the day could run out of people to appoint.

Amendment No. 18 arises out of subsection 16(7), which states: "Subject to this Part and to any general directions given to Appeal Tribunals by the Minister in the interests of securing consistency of procedures in relation to appeals under this Part, an Appeal Tribunal may determine its own procedure." I suggest that a requirement be placed on the tribunal to publish the reasons for its decisions, but that it could otherwise determine its procedures.

Amendment No. 16 on subsection 14(1) would allow a prisoner to send a petitioner to the Minister concerning the decision of an appeal tribunal affirming the sanction. I do not propose to accept the amendment because it is not appropriate for the Minister to become involved once a tribunal has issued its decision. If one is to have a conclusive appeal, there must be some finality.

Amendment No. 17 would have the effect of allowing prisoners other than barristers or solicitors of at least seven years standing to act as appeals tribunals.

The Minister of State said "prisoners", but the amendment refers to "persons".

I apologise, that is correct.

Some of them probably should be.

The amendment would have the effect of allowing persons other than barristers or solicitors of at least seven years standing to act as a member of an appeals tribunals. I do not propose to accept the amendment. The case law of the European Court of Human Rights and legal opinions obtained by the Office of the Attorney General point to the possibility that imposing a loss of remission as a sanction might be regarded as imposing an additional sentence of imprisonment and, therefore, would require the safeguard associated with a criminal trial.

Against this background, we are endeavouring to provide in the Bill a relatively uncomplicated disciplinary procedure that allows cases where loss of remission is imposed to be appealed to an independent and legally qualified person who will deal with the matter in a quasi-judicial manner. Therefore, it is important that a member of the appeal tribunal has extensive legal experience. As an appeal tribunal is a quasi-judicial authority, it is not appropriate that a person with no legal background should take on a judicial role.

The proposed amendment would allow a person from a variety of backgrounds to act on appeals tribunals. While this may appear to be a desirable approach for some, it could contribute to a lack of consistency in decisions. While there are no guarantees that an appeal tribunal as envisaged in the Bill will have complete consistency, it is desirable that decisions of a tribunal are legally robust, capable of withstanding a challenge and are made with due respect to general principles and procedures of law.

Amendment No. 18 was put to the Tánaiste on Committee Stage. The amendment would have the effect of requiring an appeal tribunal to publish the reasons for its decisions. Having considered this proposal and given the independent nature of the tribunals, it is preferable to allow them to determine their procedures, as is currently provided for in subsection 16(7). For this reason, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 17 and 18 not moved.

Acting Chairman

Amendments Nos. 19 to 21, inclusive, are related and will be discussed together.

Debate adjourned.