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Seanad Éireann debate -
Wednesday, 17 Jun 1970

Vol. 68 No. 9

Prisons Bill, 1970: Committee Stage.

Section 1 agreed to.

I move amendment No. 1:

In line 20, before "for" to insert "or places under military control or custody."

On the Second Reading I made the point, which the Minister apparently did not think was made seriously, that under section 2 of the Bill as it stands there is no qualification whatever placed on the type of alternative places which the Minister may provide for the detention of juvenile offenders. I made the point that it seemed to me that under the provisions of section 2 of the Bill as drafted it would be open to the Minister to order the transfer of juveniles to military custody. The Minister, as I say, did not seem to think that that point was a serious one.

I made it clear I accepted fully in advance that that was not the intention of the Minister, that that was not the intention of the Bill, but when we are legislating it is intended that the legislation which we enact will outstay the term in office of any particular Minister or any particular Government. While I accept fully that it is not the intention of the present Minister and that it is not the intention behind this Bill that the present Minister for Justice or any Minister for Justice should have power to transfer juvenile offenders to places under military control or custody I make the point which I consider is a valid one that if the Bill remains as drafted that power is inherent in the section. It was only this morning that we got the official report of the Seanad debate. I had only an opportunity of a quick read of the Minister's reply to the discussion. So far as I can recollect the Minister by way of interjection suggested that if a transfer was made to a place under military custody that would be a prison and that the framing of section 2 provides for the transfer to places other than prisons. I do not think that is an answer at all. Detention under military custody does not necessarily mean detention in prison. It is not necessary to labour that point. I think it is self-evident.

In replying to the Second Reading discussion the Minister went on to make the point that under this Bill it is being provided that the Minister for Justice will have the authority to make regulations governing the management and general rule of places to which juveniles might be transferred under section 2. That is so. The Minister is quite right in that. As I see it, that does not of itself preclude the Minister from transferring to military custody. It may be that he would have to get agreement from his colleague, the Minister for Defence, to do that but it is open for him to do it. That is what I want to provide against by this amendment. As I see it, the situation is a simple one. Either the Minister intends—and I am sure he does not intend—that there should be power under this Bill to transfer juvenile prisoners anywhere including to military custody, or the intention is not there. If the intention is not there, why leave the section drafted in such a way that something could be done which is clearly against the intention of the Minister and of the Government in framing the legislation?

If the Minister accepts my amendment it will put the matter beyond doubt. If the Minister has no intention that this Bill should at any time in the future be used for the purpose of transferring juvenile offenders to military custody then the acceptance by him of this amendment will not weaken the Bill or weaken the section in any way. It can only weaken the Bill or the section if it is the intention of the Minister or of the Government to utilise this Bill at some stage for the purpose of transferring juvenile offenders to military custody. I accept that is not the intention and because I accept that it is not the intention I would find it difficult to understand why the Minister would not accept this amendment.

Miss Bourke

I should like to support Senator O'Higgins on this amendment. I think he has put forward valid reasons for inserting the words proposed to be inserted. The only qualification is on the words "provide places other than prisons". The purpose of these places is the promotion of rehabilitation of offenders. It could be argued that places of military detention could be regarded as places for rehabilitation.

Does the Senator so regard them?

Miss Bourke

No. I do not so regard them. It would be possible to so regard them. Like Senator O'Higgins, I do not think it is in the mind of the present Minister that juvenile offenders should be transferred to places of military detention but it is possible. As legislators we should close that loophole by the insertion of the phrase referred to.

I want to make it clear that I am prepared to accept any amendment which I think is either necessary, desirable or reasonable. That is borne out by the fact that I put down amendment No. 3 on the list of amendments today on a suggestion which Senator O'Higgins made the last day. The suggestion which he made in regard to section 7 was well founded. Equally, if I thought that his suggestion with regard to section 2 was well-founded I would either put down an amendment to that effect or accept the Senator's amendment.

I am quite satisfied, having examined the matter in some detail since the debate last week, that the amendment proposed is neither necessary nor desirable. The situation is perfectly clear. As Senator O'Higgins rightly points out and as he accepts himself, I have no intention of ever placing anybody, or attempting to place anybody, in military custody under the provisions of this Bill. More important than that, even if I so desired or if any successor of mine so desired, it would not be possible to do it under this Bill. It is made perfectly clear that by virtue of section 3, which one must read in conjunction with section 2, it is the Minister for Justice who makes the regulations relating to the administration of places of detention established under section 2. If there were any question of military custody it would have to be the Minister for Defence who would make those regulations. In any of our enactments relating to military custody it is clearly spelt out that the Minister for Defence is the ultimate custodian and that the Minister for Defence makes the regulations.

To take the point adverted to by Senator Bourke, the interpretation that any reasonable person would put on the fact that section 2 specifies that the provision of places under that section must be for the purpose of promoting rehabilitation is that it would be quite impossible to promote the rehabilitation of offenders in military custody. They would be in the custody and control of the Defence Forces. While the Defence Forces have very definite functions to fulfil, they themselves would be the last people to suggest that one of their functions could be the rehabilitation of offenders.

One could go further and say in regard to almost any section in any Bill relating to prisons that one must accept that any Minister for Justice, who is responsible to the Oireachtas for the exercise of his statutory powers, will approach these matters in a reasonable fashion. I could make the point that, for example, there is no provision specifically in our prison legislation which would prevent me as Minister for Justice from directing that all the staff in our prisons should be serving soldiers. In a sense, therefore, without this Bill at all——

The Minister has an opportunity to put in the provision.

——I could, in theory, ensure in this way that every prisoner held in our prisons was held in military custody. However, a certain degree of reasonableness and rationality is expected from any Minister for Justice in dealing with prisoners and the care of prisoners. It would be unthinkable that I or any successor of mine would do that. Equally, it would be unthinkable that I or any successor of mine would try to use section 2, as it now stands, to transfer people of 17 to 21 years or of any other age into military custody. If one were to bring the argument to its logical conclusion there is no specific provision in our present legislation which prohibits me as Minister for Justice from appointing persons with say, the most appalling perversions as members of the staff of all our prisons but naturally I will not do it. Neither will any successor of mine. One takes a certain amount for granted. One must do that. One does not legislate against that sort of thing. That is what Parliament is there for. If a Minister were to try to use this section to the effect that Senator O'Higgins has suggested both Parliament and our courts would deal with him very quickly. Since, in my view, there is no possibility under this Bill of the section being used for the purpose for which Senator O'Higgins suggests it might be used, I feel I cannot accept the amendment.

It was interesting to note that the Minister said that he would accept and, if necessary, put down amendments himself where they were necessary, desirable or reasonable. The conclusion can be drawn from that that the Minister is arguing that it is undesirable to exclude from this section——

No, unnecessary.

Unnecessary, undesirable and unreasonable.

I am taking them in order. That it is undesirable to exclude from this section the power——

They are alternatives, as the Senator well knows. That is an old trick. It does not cod anyone.

——to transfer juvenile offenders to military custody. He also argues, according to his own definitions, that it is unreasonable to exclude a Minister from having those powers. His third point is that it is unnecessary.

My first and only one that is relevant to this was that it was unnecessary.

I would not presume to criticise the Chair in that fashion.

The smile on the Senator's face gives away the fact that he takes my point.

I took it for granted that everything the Minister said was relevant. However, if the Minister thinks the only portion of his remarks relevant to this discussion was on the question of whether the amendment was necessary or not, I shall deal with it on that basis.

The case I make is that, as it stands, on the face of it, the section, if it is left unaltered, implicitly contains the power for the Minister to transfer juvenile offenders to military custody. I do not think the Minister can argue about that and I do not think he has endeavoured to do so.

I do argue about that and I have done so.

On the face of it, those powers are contained in the section because they are not excluded. There is no phrase, there is no word, there is no sentence in the section which excludes them. The only possibility of exclusion lies in the phrase to which Senator Bourke has referred, the qualification that the transfer must be for the purpose of promoting the rehabilitation of the offenders, and as Senator Bourke has argued, and I agree with her, it is possible—I do not say it is necessarily reasonable—that it could be held that the transfer to military custody was for the purpose of rehabilitating the offenders.

The Minister argues that the interpretation could not be taken by any reasonable person. I do not suggest that the Minister is unreasonable but it is relevant to point out that the person who will be interpreting the provisions of this section will be the Minister for Justice, either the present Minister or some future Minister. The Minister for Justice will be his own judge and jury in deciding what that particular phrase means. It is open to him to come to the conclusion—and he may do it quite reasonably, he may do it for reasons which are not apparent to me or to the present Minister at the moment but which may be revelant in the future— that the particular circumstances of the day make it desirable, for the purpose of rehabilitating the offender, to transfer him to military custody. If a Minister in the future comes to that decision the case I am making is that he will have those powers under the section if the Minister does not alter it.

Any doubt can be removed by accepting the terms of my amendment. I know the Minister is genuinely appalled at the thought that any Minister would interpret this section in that way but I do not think it is so outrageous at all. Remember, a very short while ago the Minister's predecessor introduced the Criminal Justice Bill, 1967. In section 45 of that Bill there was specific provision being made for the transfer of civilian prisoners to military custody. If the present Minister does not recall the precise terms of that section I have them here and I can read them out to him. He is correct in saying that that section did provide that where there was a transfer to military custody the Minister for Defence would have the responsibility for making the regulations in relation to the places and manner generally in which the people would be detained but there was provision made in that Bill at section 45 for the transfer of civilian prisoners to military custody.

I wonder does the Minister recall the reasons which were given for the inclusion of that section in the Criminal Justice Bill, 1967? The Bill we are dealing with at present, as the Minister is aware, deals, in part, with the question of overcrowding of civilian prisons and contains in later sections power to deal with the question of overcrowding by means of transfer. The argument made by his predecessor when he introduced the Criminal Justice Bill, 1967, in relation to section 45, which sought to give power to the Minister to transfer civilian prisoners to military custody, was a possible lack of accommodation and overcrowding if a substantial number of people, in furtherance of a protest or something of that sort—I am sure he did not put it that way——

It was nothing like that.

——were put into prison at the same time, that the place might become overcrowded and there might not be sufficient accommodation or sufficient staff. That was the suggestion. I have the Minister's Second Reading speech here if any Senator thinks that I am misrepresenting him, but I certainly do not want to misrepresent him. Possibly the best thing would be to refer the Minister to it. He will find it dealt with in page 31 of the typescript of the Minister's Second Reading speech which was circulated in the Dáil. I do not think that I am misrepresenting the position when I say that the case made was because of the possibility of overcrowding and not having sufficient accommodation when it was thought that the accommodation would only be required for short-term purposes. What interests me about it in relation to the particular matter here is that on re-reading that section of the Minister's Second Reading speech it did not occur to me that it was very much on the cards that if a substantial number of people were sent to jail in the particular events he described, those people, or a number of them, would be in the younger age group and probably a number of them would be juveniles, so that it seemed to me that it was contemplated in relation to the Criminal Justice Bill that juveniles might be transferred to military custody.

I do not think that it is at all too far-fetched in this context to say that the present Minister, although I doubt it, or some other Minister for Justice may, in the context of a situation which was visualised by his predecessor in relation to the Bill of 1967, come to the conclusion that the power of transferring to military custody exists by virtue of section 2 of the present Bill. I think that I have made it abundantly clear that I accept fully the good intentions and the bona fides of the Minister in relation to this but I would very strongly urge on him that he is legislating now not merely for himself but for future Ministers for Justice also and that it is his job and our job to see to it that in our legislation we say what we mean and we do not put into the Bill something we do not mean. If it is not the intention of the Minister to have the power to transfer prisoners of this kind to military custody let him be quite clear about it and provide it in the Bill. Let him exclude that power and put it down quite clearly.

I wish to support the very clear case made by Senator O'Higgins. If we are really sincere in endeavouring to pursue this concept of rehabilitation, the Minister must be quite definite about what he wants to do in section 2 of the Bill. Also I think that this is where the money must be spent. Some years ago a big mistake was made not just in closing some of the old barracks in Cork, Sligo or Naas but in not replacing and modernising some institutions. The Minister very kindly allowed me last week to see the prison in Portlaoise and, on the point that has been raised, I think that the big drawback there is the fact that there are prisoners there who are there for varying crimes and there are even people there who are on remand. This is a big mistake. At least we should ensure that under section 2 of this Bill young offenders whom we hope to have rehabilitated will get a fair crack of the whip and that at least there will be some effort to segregate.

An Leas-Chathaoirleach

I think that the remarks that the Senator is making would be more appropriate to the discussion on the section itself rather than on the amendment. Perhaps if the Senator were patient——

Very briefly I want to say that the premise on which Senator O'Higgins's argument is based is that it is open to the Minister for Justice under this section and under the Bill in general, presumably, to transfer persons to military custody; and if that premise were correct there might be some validity in his argument and in his amendment. But because his premise is totally incorrect there is therefore no validity in his subsequent argument or in his amendment. It is impossible under the section as it stands for the Minister for Justice to transfer prisoners to military custody. Therefore the rest of Senator O'Higgins's argument does not arise. Furthermore, as Senator O'Higgins has pointed out to this House——

I presume the Minister is going to tell us why it is impossible.

I have already told the House why it is impossible, and the most basic reason of all is that on an ordinary straightforward reading of it it would be impossible to put the construction on the section of the Bill that Senator O'Higgins attempts to put on it. I want to point out further that in the course of his latest remarks and of his amendment Senator O'Higgins states that in a matter such as this the sole judge and jury on the question of transfers is the Minister for Justice.

When the transfer is being made.

That, of course, is totally erroneous, because if any prisoner feels that he has been improperly transferred under this section there is nothing to stop him going on the following morning to the High Court in Dublin and obtaining on a habeas corpus or other application a declaration that the Minister for Justice had abused his powers and had acted ultra vires the section. Senator O'Higgins knows that as well as I do. His arguments are quite attractive to someone who accepts this premise, but his original starting ground is totally erroneous and therefore everything he says subsequently is not relevant.

The obiter dicta of the Minister just do not impress me at all.

No more than the Senator's section 45 impressed us.

The Minister says that it is impossible for him to do a particular thing—to transfer civilian prisoners to military custody under this section. He relies on his earlier argument which he made as proof of that. I do not think that it is any proof. Let us take the section as it stands. I do not think that the Minister would dispute that the Minister has under its wording got a degree of discretion under this particular section. "The Minister may ..."—this means that under the section as it stands for the purpose of promoting the rehabilitation of offenders, for a particular purpose, the Minister is being given discretionary powers.

And for that purpose only.

And as I pointed out, the person who is going to interpret that at the time the act of transfer is being done is the Minister and nobody else. It is all very well for the Minister to say that you can go in next day or next week or next month or next year to the courts and seek a declaration either by way of the procedures which the Minister mentioned or by another procedure from which the Fianna Fáil Government have suffered from time to time, of seeking a declaration that the powers given to the Minister are unconstitutional. That is all very well but at the time the Minister makes his decision to transfer the prisoner the Minister and nobody else is the person interpreting and entitled to interpret that particular power. We have established that the Minister gets discretion under this section.

The Minister's discretion is limited by the words that the Senator glossed over—"for the purpose of promoting rehabilitation".

What discretionary power is the Minister being given to provide places other than prisons for the detention of persons? What are the limitations and qualifications attached to that power? The only limitation is that these places must be places other than prisons. It does not say they must be places which are under civilian jurisdiction and authority, only that they must be places other than prisons. In my view the Minister is at liberty to transfer prisoners to places which may be under military control. They must be places other than prisons. That is the only limitation to the places that the Minister may select.

The Minister has told us to look at section 3 in relation to this, it is interesting to note that the regulations which the Minister may make under that section of the Bill, and which have to be laid before the Oireachtas, have nothing to do with the places so far as the actual locale is concerned. The regulations which may be made under section 3 are for the rule and management of the places and not the actual situation of the places. That cannot come back before the House. Only the rule and management of the places and the classification, treatment, employment and control of the persons detained in it can. This is what we are concerned with and we have to regard the legislation being enacted in this House at the present time as meaning what it says. It is no answer for the Minister to say that a person can go along to court and get a declaration. It is not reasonable to put that meaning on it although it is there on the face of it that there is no limitation imposed on the places that the Minister may select.

The Senator has just called out the limitations. How can he now say there are none?

If the Minister will just keep cool for a minute I shall finish my sentence. There are no limitations on the places that the Minister may select other than that they should not be prisons and that the power should be exercised for the purpose of promoting the rehabilitation of the offender.

The Minister has said my premises are completely false. Perhaps they are, and if they are it is the fault of this section because I am taking this section at its face value. I am looking at the section which the Minister has served up to us. I take it if the Minister says that he wants power to transfer juvenile civilian prisoners to any place other than prisons that that is exactly what he means and he is asking us for authority to transfer them to any place including places of military custody.

I am going to assume for a moment that Senator O'Higgins seriously considers this could be used in the way he suggests.

He does not.

I must say I find it very hard to believe that he seriously considers the Minister could do what he suggests can be done under this section. If the word "provide" in section 2 was the word "transfer" then I think it could be argued that there was a danger that the Minister might transfer people to places under military control or custody, but the word in the section is "provide". It is quite clear to me that the only person who could provide places for detention under military control or custody is the Minister for Defence.

The Senator will ultimately come to section 5 as well.

The only person who can provide places of detention under military control is the Minister for Defence.

An Leas-Chathaoirleach

The Chair would like to point out to Senators that while it is permitted to speak more than once on a Committee Stage it is not permissible to interrupt during a Committee Stage and this has been done repeatedly during the present discussion.

No matter how one looks at this it does not seem to me to be possible to interpret it in the way that has been suggested. Only the Minister for Justice can provide places for detention under his jurisdiction and only the Minister for Defence can provide places for detention under his jurisdiction. Consequently, as this section stands at the moment it seems to me to be incomprehensible that anybody could suggest that the Minister for Justice could provide places which are going to be under military control and custody.

I want to point out to Senator Ryan that the Minister sometimes gives good advice. One piece of advice which he gave was that in considering this section and the amendment to it we must also have regard to the fact that there are other sections in the Bill. While it is true as Senator Ryan has said the Minister could not direct the transfer of prisoners under section 2, he can only provide places under that section, under section 5 he has power to direct the transfer of prisoners to those places which he has provided under section 2.

I am grateful to Senator Ryan for making this clear. Senator O'Higgins might as well——

Knock his head against a stone wall.

——say that the Minister for Justice shall not provide factories under the Industrial Development Act because that is something which the Minister quite clearly has no power to do anyway. I have no control or jurisdiction over any member of the Defence Forces and therefore as Minister for Justice I could not provide places of detention in military custody. Even if I wanted to put that into the section I could not do it because there are no military under my jurisdiction. I think it is quite clear.

Will the Minister agree that if he happens to meet the Minister for Defence and asks him if he has a suitable barracks in which to house a number of young persons that he wants to transfer from St. Patrick's and the Minister for Defence says, "Yes, I have such a place and not only have I such a place but I have a whole lot of soldiers knocking sparks off the barrack square and if you are in any difficulty about staff I can give you the staff to do it", as long as he has this authority and as long as he has a Minister for Defence willing to go along with him, there is nothing in the world to prevent him under section 2 of this Bill from providing, by means of the willingness of the Minister for Defence, this place under military custody? Is that not true? All I am saying is that the power is there. That is what was contemplated by the Minister's predecessor when he introduced the Criminal Justice Bill of 1967. Section 45 of that Bill sought the power to transfer civilian prisoners to military custody and the Minister argued the case there. He had dealt with the suggestion that military custody might be more harsh or severe than civilian custody and disposed of fears in that regard. He went on to say:

So much for the suggestion that a transfer to military custody is a harsh or punitive measure. The question remains: why is such a provision necessary?

The answer to this is that I hope it will never be necessary to use it but that there is a distinct possibility that it may be needed. We are living in a time when it has become almost a fashion for groups of one kind or another to engage in planned and systematic breaches of the law in order to create a situation in which, ultimately, they have to be committed to prison. That is what they seek and, under the system of law we have, we must accept the fact that if any group of people are determined to get themselves into prison, they are likely, ultimately, to succeed.

I agree with him on that. He then went on:

I now come to the heart of the problem. Our prisons have neither the accommodation nor the staff to cater for a sudden influx of any substantial number of persons and we have already experienced the situation in which the available accommodation and staff resources were taxed to the limit.

He was a very far-seeing Minister.

As he said, we are living in a time when it has become almost a fashion for groups of one kind or another to engage in planned and systematic breaches of the law in order to create a situation in which, ultimately, they have to be committed to prison. I have made what I believe to be a relevant and valid point that in the context of the situation as envisaged by the Minister's predecessor, the persons likely to become involved in these breaches of the law and who would find themselves committed to prison are young persons. Under section 45 of the Bill of 1967 it was deliberately and positively contemplated by the Minister that such persons could be transferred to military custody.

What is so appalling about that?

Senator Ó Maoláin will be able to give us the benefit of his view as to whether it is appalling. I am delighted that the Senator has intervened because his intervention underscores the point I am making.

Unfortunately military custody is not provided for under this Bill.

The Leader of the House probably intended for the Minister his question as to whether military custody was appalling for young people. Does not the Senator's view support my argument?

Let not the Senator twist what I have said.

The Minister says it is it is impossible for him to commit anybody to military custody. I think he is mistaken in that but whether or not he is mistaken there is no doubt in any event that he can resolve the question once and for all. He can make it absolutely crystal clear by inserting into the section the words I am asking him to insert.

There is a limit to the sort of argument to which one can be expected to continue to reply and since I have already replied twice to the argument being made by Senator O'Higgins I doubt if it is incumbent on me to do so again. The words of the amendment which Senator O'Higgins is asking the House to insert into the Bill are to the effect that the Minister for Justice may not provide a place of detention under military custody. The fact is that the Minister for Justice cannot do so anyway regardless of whether this House may or may not give him such power because the Minister for Justice has no jurisdiction whatever in so far as the military are concerned. Senator O'Higgins's amendment would have as much effect if he inserted the words that the Minister for Justice shall declare that the moon is blue.

We can leave that for Report Stage. Will the Minister be prepared to go this far in relation to the amendment and the case being made here—the Minister's predecessor foresaw the reintroduction in some shape or form of the Criminal Justice Bill of 1967——

Back to that again. Has the Senator a guilty conscience about that Bill?

Perhaps it is because they held it up for so long.

Will the Minister agree that if that Bill is to be reintroduced by him——

Is the Senator advocating that I reintroduce it?

No, but if he does and if it contains a section authorising the transfer of civilian prisoners to military custody, will he exclude juveniles from that provision because if he does so, my amendment will not be necessary?

There is a certain amount of perplexity and while I am rather confused by the implications both of the section and of the amendment I wish to ask of the Minister one question: I was impressed by the Minister's statement as to his reading of the powers which he would receive under the amendment and I was also impressed by Senator Ryan's explanation of the word "provide". However, I would ask the Minister to consider the following hypothetical situation. Despite his assurances is it not theoretically possible that a successor of the present Minister for Justice could decide that he has the power under this section to transfer somebody to some establishment, maybe to military custody, and if such a person should take an action in the High Court for habeas corpus the court, because of the particular circumstances and because of the division of powers, as well as because of a certain lack of clarity in the drafting of this Bill could decide that this future Minister was right in using his powers under this Act to transfer a person in this way?

I would point out to the Senator that the question of transfer does not arise at all on this section. It is inconceivable that a court could decide on the lines suggested. Admittedly, the Senator has put forward a hypothetical case but his suggestion is still inconceivable. This is borne out by the fact that specific provision for military custody had to be made in section 45 of the Criminal Justice Bill. This provision was spelled out in great detail. The amended section runs to almost two foolscap pages.

There are many obligations and many responsibilities placed on a Minister but it would be going too far to ask the Minister in considering the wording of this Bill to anticipate the possibility that a court in the future would interpret the Bill in an entirely erroneous way and that the Minister should amend the Bill so as to prevent such occurrence.

Amendment put and declared lost.
Question proposed: "That section 2 stand part of the Bill."

Just in case the Minister might possibly misunderstand it I want to make it clear that I do not agree with the wording of the section as it stands although I agree fully with the principle provided for in section 2.

Miss Bourke

With reference to what the Minister said on the Second Reading in the Dáil I take it although he might not envisage large rehabilitation centres that he has not stopped himself from setting up other centres. I did not read his comments on the last day here but I take it that he does not envisage any other rehabilitation centres at the moment apart from Shanganagh and that in fact he leaves himself open to the possibility of experimenting in this area of providing small centres and providing open prisons on the lines of those in Scandinavian countries.

As the Minister pointed out we have a relatively small prison population and one which is not as dangerous or as difficult to cope with as that in other countries. We are lucky in this and we could not only improve our rehabilitation work but give a lead to other countries. I would not like to think that this was just a confirmation of the existence of Shanganagh. I would like to think it leaves the way open to a possible study in this area and the introduction of small rehabilitation centres. I would like some comments from the Minister on this.

I agree with what Senator Miss Bourke says. In the Dáil I said that unfortunately, much as I would wish it was otherwise, I could not promise the Dáil or the Seanad that we would be able to establish another centre similar to that at Shanganagh in the immediate future but that it was certainly my intention that a similar centre would be established, first of all, as soon as we found a suitable site—because it is not easy to get a suitable site—and, secondly, as soon as we have sufficient money to do it.

With regard to the question of large rehabilitation centres, experience in other countries has shown that large centres of, say, 100 or more people are not as successful as the smaller centres of around 55, as we have in Shanganagh, and rather than increase the population of Shanganagh I would as a matter of policy prefer to open another separate centre. If I may broaden my remarks on this section somewhat I would hope that open centres, where the institutionalisation is less than in the traditional type of prison, would play a much more prominent part in our criminology from now on and that, in particular, non-institutional methods would have, if at all possible, a major role in rehabilitation because I believe the greatest hope of success lies there. Strangely enough and happily enough, because this does not often happen, what is socially most desirable and most successful both from the point of view of society and from the point of view of the individual offender fortunately happens to be the most economic from the point of view of the Exchequer. So, we have a happy combination there which I trust will allow me to ensure that non-institutional approaches to rehabilitation will play a very prominent part.

Miss Bourke

Further to the Minister's remarks I assume he will interpret the words "places of detention" in that sense that we have been calling his attention to. If that was construed narrowly it might mean institutionalisation in the sense of full detention, whereas if it is construed in a broader sense it may mean a more open type of detention.

That is so and even in the more closed type of institution at present there is of course a great deal of coming and going with day-to-day release to employment.

I was very glad to hear the Minister make his last statement. I wish him luck with this terribly important work. I certainly hope we will have more than one such place and if it at all possible I feel it is imperative that the first offenders should be segregated in a completely different place from second offenders and perhaps children who were brought in for crimes of violence of one kind or another. We have had the present situation too long and I hope the Minister will get going and ensure every effort will be made to bring about the new reform.

Question put and agreed to.

I move amendment No. 2:

In subsection (1) (a), line 24, before "age" to insert "general suitability,"

This is a matter I also raised on the Second Stage discussion. I want to say to the Minister I am not particularly insistent on the particular words I have chosen for this amendment. My point of view in relation to this is that the Minister has been rather too restrictive in the drafting of section 3, subsection (1) (a) in that the regulations which he may make under that particular subsection can only have regard to the age and sex of the class of persons to be detained in those places that may be provided. The regulations can only specify those classes by reference to age and sex.

I assume it is generally conceded that if the pattern being contemplated is a pattern on the lines of the open centre at Shanganagh there will be a necessity for a very definite amount of screening and selectivity in deciding on what prisoners would qualify for transfer. I do not think I am being too optimistic in saying that in this screening and in this selection the Minister, the staff or whoever is directly concerned in making the actual selection of the people who may be transferred will have regard to a whole lot of relevant factors concerning the basic character of the persons concerned to make sure they are people who are likely to benefit from rehabilitation in a place such as the open centre at Shanganagh. In other words, there will be factors other than the sex and age of the prisoners which must be taken into account.

I would feel happier in any event, although I can see the argument might be made that it might be dangerous to give any Minister the power which I am suggesting here, if the Minister as the head of the Department of Justice at least had the authority to make regulations in a broad way which would establish the classes who qualify for transfer in a more general way than is suggested here in one sense but in a more particular way in another sense.

The Minister should be entitled in making his regulations not merely to have regard to the age and sex of prisoners but he should be entitled to set out guidelines which could be acted on as regards the general suitability of prisoners falling into particular classes, and should be entitled to have regard to their general conduct and demeanour and should also be entitled to have regard to the question of whether or not the prisoner is a first offender and whether he has a good record both prior to actual imprisonment and during imprisonment.

It may be that the Minister will say that obviously these are the kind of things which will be taken into account and that there are trained personnel who will be able to advise on these matters. The Minister may say that there are visiting committees who will be able to advise on these matters and that all these things will be taken into account when the individual selections are made. I think it would be a good idea not merely from the point of view of the individual selections but so that everyone will know where he stands if the Minister had authority to have regard in the general regulations to such matters as general suitability. I have chosen that particular phrase as being one of the fairly general nature. If the Minister felt there was some validity in this point of view I do not want to be committed or to commit the Minister to that particular phrase.

I appreciate what Senator O'Higgins is getting at in his amendment. For a number of reasons I think it is not really suitable. That is a bad word to use because "suitability" is the word used in the amendment. The main reason I feel that way is that one is dealing here with individual human beings, all of whom have particular individual characteristics and all of whom have to be assessed in some depth by a number of qualified people who have observed and studied them intensely over a period. If the Minister for Justice tries to lay down abstract rules covering the transfer of people to the open centre at Shanganagh it would be impossible to do so. It would be impossible to make regulations in the abstract which would ensure that justice was done and that the proper rehabilitative effect was achieved in each case. The best thing we can do is to leave it to the psychologist and the governors and welfare officers attached to the institutions concerned who are in the best position to judge and to make decisions and advise the Minister in the best interests of the offender concerned.

I do not think it would be possible for a Minister to make positive regulations of a general character setting out the sort of people who should be transferred. It would be very difficult to word that. It might well be that there would be an appreciable number of people who did not come into the prescribed category but who were well worthy of transfer.

The easier way might be to set out certain negative conditions, in other words, to say that certain people who came into a particular category should not be transferred. It would be easier to draft but one could envisage cases where even that could cause hardship in an individual case.

Senator O'Higgins's suggestion of trying to spell out these things in advance and lay down hard and fast rules runs counter to what my predecessor and myself have sought to establish at Shanganagh, a very flexible type of administration where the complicated detailed prison rules which exist in our other institutions do not exist. It has been found to operate far more satisfactorily in practice with these sort of flexible rules rather than by rules whereby everyone must do things according to the book whether it is right to do them or not or whether it is for the benefit of a particular person or not. That concept must be dropped.

The governor, psychologist and welfare people are there for the purpose of rehabilitating each individual offender to the greatest extent possible. I think we would hinder them in their work if we tried to lay down too many regulations as to how these people were to go about their work. Very often the authorities are dealing with difficult people with unusual individual characteristics. It would be an unnecessary complication in the work of those who are trying to ensure the rehabilitation of these people if one were to be too precise about what is to be laid down as guidelines. That is why the regulations I propose are going to be minimal in a sense and give the greatest possible discretion and freedom to people who are well qualified to act in the interests of the individual offenders.

There is a very technical reason why that could not be accepted because paragraph (b) of subsection (1) would create a rather strange situation. Then if somebody absconded from Shanganagh he therefore could not be regarded as having been generally suitable and having regard to what paragraph (b) says he might claim that he was illegally detained there in the first instance. There might be an interesting Constitutional action which would entertain lawyers for a few weeks but would not achieve much.

I am not committed to the actual wording. I appreciated the Minister's argument. This is not a matter which I regard as being in any way controversial. It is the kind of thing on which a number of heads are better than one. It seems to me under the subsection as drafted all the Minister can say effectively in his regulation is that Shanganagh, for example, should be open for the reception of male prisoners not over the age of so many years, and really that he cannot do more than that. It may be that the Minister is right in thinking that is as far as he should go and that it should be a question for the experts to select the actual prisoners. The selection of prisoners must be on expert guidance and on the kind of intimate knowledge that the people in charge and the experts have. The whole purpose of this Bill and the purpose of the open centre at Shanganagh is to provide a place for rehabilitation for people who are likely to benefit from it. The whole emphasis here is on rehabilitation and on the opening of the centre in Shanganagh for people who are likely to benefit from it.

The Minister, as head of the Department of Justice, should be entitled to do a bit more than simply to say it should be open to people not over a certain age and of a particular sex. To stop there limits the power which the Minister should have in this kind of thing.

I am not suggesting that Minister should make the selection but it would be a pity if things went wrong because the wrong kind of person was sent to Shanaganagh and I feel that the Minister may, in future years, if anything goes wrong there, regret that he did not have the power to say in regulations that this centre shall be open to male prisoners not over the age of such and such and who have been, for example, certified by the authorities in St. Patrick's as capable of benefiting from the facilities in Shanganagh. However I am not pressing it.

Miss Bourke

I should like to oppose this amendment for the reasons given by the Minister. I feel it is inappropriate to use a Ministerial regulation to try to set out something that is subjective and is different for each individual. I consider the Minister is right in confining his powers here to prescribing the sex and the age of persons who will be sent to such centres. The best people to decide on suitability are those who are involved with the individuals concerned and who are aware of their possibilities of benefiting from rehabilitation. I can see what Senator O'Higgins is getting at but I feel that an attempt to define suitability, to set out classes of suitability or qualifications which would make a person suitable would become a straitjacket which would, in fact, hinder those who would best know the type of person who might benefit from the centre. Therefore, I feel the Minister is right in not trying to assume the power to do this in regulations and I oppose this amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."

Miss Bourke

I have not got a specific amendment down but I note that under section 7 when the Minister is exercising his power to transfer detainees from St. Patrick's to a prison he does so after consultation with the visiting committee at St. Patrick's Institution but under section 3 where he is making detailed regulations relating to these rehabilitation centres he is not consulting anyone. I wonder whether, especially under subsection (2) where the Minister may make regulations for the classification, treatment, employment and control of persons detained therein which is quite a specialised task the Minister intends to set up an advisory committee or whether this will be done in some way in consultation with expert bodies of this nature and whether this needs to be written into the Bill. I would be happier to know that this would not be done merely at the Minister's discretion, that he would, in fact, be consulting experts in this field as to the control, employment and rehabilitation work going on.

I can certainly give an assurance to the Senator that I will. The fact that I am not consulting the visiting committee to Shanganagh in connection with the regulations to be made under subsection (2) of section 3 is that, unfortunately, as Senators will be aware, there is not yet a visiting committee, so I cannot consult them but certainly before I make the regulations under subsection (2) I will have the views of those who are best qualified to give views and I will also have the benefit of seeing the regulations for various similar centres in Britain and on the Continent.

Miss Bourke

Does the word "classification" in subsection (2) have a different meaning from dividing into classes of persons? It sounds rather technical, as if they will be classified in the centre itself.

"Classification" as such will not have to be specifically mentioned in the regulations which will apply to Shanganagh. Inside prisons the object of classification is to segregate prisoners having regard to their age and temperament and with a view to maintaining good order and facilitating training and, of course, with a view to keeping unconvicted prisoners out of contact with convicted prisoners as far as this can reasonably be done. The Senator will appreciate that that sort of division or "classification" would not be as necessary in Shanganagh because the offenders sent there would more or less all fall into the same classification.

Miss Bourke

My one fear would be that a regulation might be a straitjacket to those concerned. If there were too many regulations as to treatment it might hamper experimentation in that field.

If any fault will be found with the regulations it possibly will be that there are too few rather than too many. If I were to fall into one trap rather than the other, that is the one into which I would prefer to fall. I would like to give as wide as possible a discretion.

Question put and agreed to.
Question proposed: "That section 4 stand part of the Bill."

Can the Minister explain the reference to the Criminal Justice Administration Act, 1914? Does this preclude direct committal?

That is right. Section 17 (3) of the Criminal Justice Administration Act, 1914 gives a court power to commit direct to prisons. As I said in the Dáil we have found it desirable that the courts should not be given that power in relation to Shanganagh because experience has shown that a court has not got the facilities available to it correctly to assess the suitability or otherwise of a particular offender for committal to a place such as Shanganagh.

Question put and agreed to.
Question proposed: "That section 5 stand part of the Bill."

Would the Minister explain the reference in subsection (2) to the Prevention of Crime Act, 1908?

Section 3 of that Act is a transfer provision which authorises the Prison Commissions, that is now the Minister for Justice, if he is satisfied that a person undergoing penal servitude or imprisoned in consequence of a sentence passed either before or after the passing of the Act, might with advantage be detained in a borstal institution—"borstal institution" is now taken to read "St. Patrick's Institution"— to transfer him from prison to what is now St. Patrick's, there to serve the whole or any part of the unexpired residue of his sentence. The provision in subsection (2) is that the power of transfer given by section 3 of the 1908 Act is not to apply. It makes it plain that the only power of transfer out of Shanganagh or a similar place to St. Patrick's Institution will be that provided under subsection (1) of section 5. The effect of subsection (1), incidentally, is to prevent me transferring to prison someone who was originally sentenced to detention in St. Patrick's. For example, if someone sentenced to detention in St. Patrick's and transferred by me under section 5 (1) to Shanganagh misbehaved himself in some way in Shanganagh, I would have to transfer him back to St. Patrick's. I could not transfer him from Shanganagh to a prison.

Or to military custody.

Or to military custody.

Question put and agreed to.
Question proposed: "That section 6 stand part of the Bill."

I have no objection to this. It deals with what I mentioned on Second Reading. It does flow from this that in the future persons in the 19 to 21 age group will be sent on transfer, and I want to ask the Minister two questions arising on section 6 —first, if he has a timetable fixed in his mind for the making of an order bringing this into operation; and, secondly, if there is any reasonable possibility in what I might call the reasonably foreseeable future of providing separate quarters for the 19 to 21 age group—I know that there is a separate section of Mountjoy set aside —but I mean separate quarters in the sense of a completely separate building. Once this situation has arisen where they cannot be committed or even sent, except possibly by transfer back, and cannot be sent to St. Patrick's, I think a desirable thing would be if possible that there should be a separate centre, a separate building entirely for them. I know that there is a question of cost and all that involved here, and I am wondering if the Minister could give some indication of his thoughts on the subject of whether or not it is possible in the foreseeable future that such quarters might be provided.

In reply to the Senator I have no precise date in mind for the making of an order bringing section 6 into force because it is dependent on the availability of separate quarters and I do not want to bring it in until I am in a position to keep the 19 to 21 group apart from the remaining prisoners. The work of providing a particular section of Mountjoy Prison for the occupation of the 19 to 21 group is in hands but I am not quite clear when it will be completed. I will make the order as soon as it has been completed but not earlier than that, because I do not want to put them in with the ordinary adult prisoners in Mountjoy. I accept in principle, as indeed it is easy to do, Senator O'Higgins's suggestion of a separate building if possible, a completely separate institution rather than a separate section in Mountjoy. What I have in mind would be that if we were lucky enough and things worked out that way and we were able to afford it we should have a completely new institution for the 16 to 19 year group and get the 19 to 21 group back into St. Patrick's. I think that would be the more satisfactory way. The prospect of success is bigger with the 16 to 19 year age group, and we should therefore spend more money on them.

Miss Bourke

I wonder if the Minister could inform us how many of the occupants of St. Patrick's at the moment come within the 19 to 21 age group and to what extent their removal would relieve overcrowding there. The latest report which I could get in the Library was for 1966.

The figure is approximately one-third—about 60 out of 190 or 200.

Miss Bourke

So that this provision when brought into effect will diminish by about one-third the population of St. Patrick's?

Pro tem. I am not optimistic that it will be that way in a couple of years time.

When considering new building projects for this age group I hope that the Minister and the House will remember that when the institutions he wants to provide are available perhaps young men and women will come of age at 18 and we will have juveniles under that age.

Question put and agreed to.
Government amendment No 3:
In page 4, subsection (2), line 12, after "Institution" to insert "(not being persons under the age of seventeen years)".

This amendment is put in to meet the point raised by Senator O'Higgins on the Second Stage, which goes to show what a reasonable man I am.

Better not say any more.

The object is to make it clear that the power given in the section to transfer an offender from St. Patrick's Institution during a period of overcrowiding may not be exercised in relation to a person under 17 years of age. Under the present law a person under 17 years of age may not be sentenced to imprisonment unless the court certifies that he is of so unruly a character that he cannot be detained in a place of detention provided under the Children Acts or that he is of so depraved a character as not to be a fit person to be so detained. This amendment will bring section 7 into line with the provisions of our ordinary law in this regard.

I am glad that the Minister has put down this amendment and has accepted my point of view expressed on the Second Reading, for two reasons—because I think it shows the Minister that the views he takes with regard to particular sections are not always entirely free from doubt, and the Minister has recognised that himself now.

I take it that the Senator recognises it in his own case also.

I do, but to be serious, I am grateful to the Minister for putting down this Government amendment. He is doing the right thing, and it shows that this House can certainly serve a purpose even when legislation has been discussed fully in the other House.

Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."

Miss Bourke

I am not too happy about the consultation with the visiting committee of St. Patrick's Institution in relation to the time during which an order under this section might come into operation, and also as to whether the Minister will consult with them if he wishes to make an order under the section. If the Minister decides for the purpose of relieving overcrowding that there can be a transfer of a number of persons serving sentences from St. Patrick's to prison, the Minister does not appear to have to consult the visiting committee on it. I might be wrongly construing the section, but it is open to the interpretation that the Minister could specify the number of prisoners who ought to be transferred to prison on his sole discretion without consulting the visiting committee, and that these might not necessarily be the persons who ought to be transferred to prison. It is also not clear in this section on what grounds the Minister would chose a particular number or even particular individuals, and I would like some clarification on this.

The reason the section does not contain a provision that I shall consult with the visiting committee is that the visiting committee are a part-time, unpaid voluntary body most, if not all, of whom are working and the necessity to transfer under the section would arise at very, very short notice. It would be impossible to get the committee together to consult with them but I would of course consult with the governor and the welfare officers connected with the prisoners. I would normally accept their advice about the number of persons and also the choice of individuals. I assume their approach to the matter would be to transfer the most unruly people or the people less likely to benefit and that would be my approach too. I assume they would recommend the transfer of those who were a bad influence and not benefiting from the place.

Miss Bourke

Can I take it that the transfer of such a number would only be because of overcrowding?

As Minister, I must ultimately take responsibility for the transfer of each individual. As an individual person, I am not likely to interfere with the transfer of any person. I shall accept the advice given. But, as Minister, I must accept responsibility for the transfer of each named individual.

Question put and agreed to.
Sections 8 and 9 agreed to.
Title agreed to.
Bill reported with amendment.

Is it agreed to take the remaining Stages today?

Has the Minister any particular reason why he wants the Report Stage now?

I am anxious to get the things which the Bill gives me power to do started and having accepted the Senator's amendment I shall have to go back to the Dáil with it and this will hold the Bill up for some time. I am not certain if there is anything arising out of the Committee Stage. I have been reasonable about this and other Bills in allowing them to be put back but I would urge the House to give me the Report Stage now.

I am not going to refuse to agree to the Report Stage but as a matter of principle I am asking the reason why it is sought. I do not think it is a good idea for Government Ministers or anybody else to take it for granted that they will get all Stages immediately.

The Senator said that last week. As the Senator is new to this House I would like to tell him that we have got on very well here with the system which has obtained for many years. This House is not precisely like the Dáil and it is not customary to put up obstructions when there is no serious intention of making any further amendments on subsequent Stages. If the Senator would co-operate a little more we would get a great deal more business done but if this continued obstruction persists it is not going to be very nice.

I am sure all Senators are grateful to Senator Ó Maoláin for his lecture. Perhaps at some stage he will elaborate on the statement I understood him to make about the practice of obstructing in the Dáil and the fact that that was not followed here. The point I want to make, and I do insist on this, is that as far as I and those associated with me in this House are concerned we are going to insist, when we deem it necessary, on obtaining time to give proper and full consideration arising out of discussion of Bills whether it be Second Stage or Committee Stage. It might happen that no amendments spring to mind following on a Committee Stage discussion but after consideration Senators might want to put forward amendments. I simply want to retain the rights of Senators to do that. As far as I am concerned on this particular Bill and on this particular occasion I am quite agreeable to give the Minister the next Stage now.

There is no question of a concession. If the Senator feels he has something to say on the Report Stage he should insist on his right to say it. I am only suggesting to the Senator that common sense dictates we should work together instead of standing on one another's toes.

Agreed to take remaining Stages today.

Bill, as amended, received for final consideration and passed.