Private Business. - Prisons Bill, 1972: Committee and Final Stages.

SECTION 1.

I move amendment No. 1:

In page 2 to add to the section the following:—

"In this Act the expression ‘military custody'means the holding under arrest or in confinement of a person by the Defence Forces by virtue of a direction made by the Minister under this Act."

It is a little bit difficult moving amendments and dealing with Committee Stage immediately following the Second Stage because Senators may not have had the opportunity of digesting the amendments and seeing how they stand in relation to the text of the Bill. On Second Stage I dealt broadly with the amendments which I proposed putting down so that the Minister would have some advance knowledge of them, would have an opportunity of considering them and obtaining some advice from discussions with his Department regarding them.

The amendment which I am now moving is to cure what I believe to be a defect in the Bill as it stands. That is, to insert in the Bill a definition of what we mean by "military custody". The Bill as it came to us from the Dáil did not contain any definition of "military custody". It is an easy thing for anyone to say: "Of course we know what ‘military custody'is?" That is not going far enough, with respect to anyone who may feel like advancing that argument. We have imposed on us the obligation of participating in the legislation which is to have the force of law in this country. When we have done that our job ends. It is then a matter for the courts to interpret what we have done and any question that is raised with regard to the meaning of the Acts which go through this Parliament, any decision on that question, is a decision which has to be made by the judiciary—not by this House.

If we are lazy or slovenly in our work, we have merely to meet a temporary situation in order to accommodate a Minister who for perfectly valid reasons is in a hurry with the Bill. If we allow the legislation to go out from us in an unfinished and untidy way with loose ends, with defects of one sort or another in it, the only result will be that sooner or later the Minister will have to come back to this House with an amending Bill to try to remedy the defects.

It is a defect in this Bill that there is no definition of "military custody". The entire Bill is dealing with something called "military custody". It never gets around to face up to what military custody is. I ask the Minister to put in a definition and I am suggesting to him a definition which would cover the position adequately. I suggest that he should amend section 1 by inserting the words:

In this Act the expression "military custody" means the holding under arrest or in confinement of a person by the Defence Forces by virtue of a direction made by the Minister under this Act.

That is exactly what we mean by "military custody" in relation to this Bill—that following a direction made by the Minister under section 2 of the Bill when it becomes an Act, a prisoner will be transferred into the custody not of any servants of the Minister for Justice, not of any persons in the prison service but into the custody of the Defence Forces who are under the authority and jurisdiction of a completely different Minister.

The Minister for Justice is, in effect, hiving off, from his direct responsibility to one of his colleagues, the custody of prisoners who, in the first instance, were, broadly speaking, under the custody of the Minister for Justice or the servants or officials of his Department. I think the definition which I have suggested is accurate: I think it is comprehensive and comprises precisely what is in the minds of the legislature in relation to this Bill. It is not only that, but it is necessary. I could visualise a situation arising, if a definition is not put into this Bill, where a dispute could arise and an argument could develop and possibly an adverse decision could be given by the courts all arising out of the two words, which are used so frequently in the Bill, "military custody".

It may be it will be argued that the custody of persons in places which are not barrack prisons would not constitute military custody. It might be argued, for example, that if some of the serving personnel who were charged with the responsibility of custody of prisoners in any shape or form were not members of the regular Army but were, for example, drawn from the FCA, that the question of military custody could be challenged on that score.

There is an infinite variety of ways in which this matter could be raised, any of which might for all we know be successful if raised before the courts. We may let that situation go, we may let it develop, we may chance to luck on it. The Minister may say: "Well, surely everyone knows what military custody is; it is not necessary to do this."

He may chance his arm in that way and possibly he would be proved to be correct. Possibly no challenge would ever arise but are we, as responsible legislators, entitled to approach the matter from that point of view when there is a very simple remedy. The simple remedy is to put in a definition of "military custody" in the Bill, to write into the Bill what we mean by military custody. Would anyone object to the definition I have suggested? If they do, my attitude to it is, as I expressed on the Second Stage, that if there are any flaws in the drafting of this or any other amendment that I have put down I do not think it would be fair to oppose the spirit of the amendment or to defeat the principle of the amendment merely by verbal fencing, because everyone knows the exceptional circumstances in which we have had to consider this Bill and in which we have had to draft Committee Stage amendments.

Consequently, if the principle is accepted by the House, and I think it should be, it would be not only a prudent thing for the House to do but, to my way of looking at it, it would be a necessary thing for the House to look at it. If the House looks at it in that way and agrees with the principle, then as far as I am concerned I certainly do not press the particular wording which I have included in this amendment. If the Minister tells me there is another definition of military custody which he thinks would be better, as far as I am concerned that is grand, I will accept it, but it does seem to me that if we are to do our work properly here, if we are to produce a proper piece of legislation to deal with this situation, then we should include some definition of military custody in the Bill.

There is no need to define terms which have ordinary plain meaning. "Military custody" is simply custody by the military or the military authority. The responsible Minister is the Minister for Defence who will make regulations under subsection (9) of section 2. The term "military custody" is to be found in section 51 (3) of the Offences Against the State Act, 1939 which contains no definition of such custody.

The need for a definition of "service custody" in the 1954 Defence Act arose from the fact that service custody is not a term that has a plain and ordinary meaning. Our legislation is far too concerned with definitions which instead of defining, result in restricting the meaning. For this reason definition sections now often say (a) or (b) or (c) "includes" something rather than "means". This type of definition is only necessary in order to make sure that a term includes something that it might not otherwise include. Military custody will of course be lawful custody and the Bill clearly distinguishes between military custody and what is called custody in prison— between a person in military custody and a person in prison. In these matters we have to rely on the skill, expertise and experience of the parliamentary draftsman who has felt that a definition of "military custody" is not necessary in this Act any more than it is necessary in the Offences Against the State Act, 1939.

I have never, and I do not now, cast any aspersions on the skill and experience of the parliamentary draftsman but I reject utterly the Minister's assertion that we have got to rely on the skill and experience of the parliamentary draftsman. If that were the situation which were to be allowed to develop in this Parliament there would be no need whatever for a parliament, there would be no need whatever for discussions on Bills once they were produced by the parliamentary draftsman. The Minister already this day conceded in relation to this Bill in the other House of Parliament that it was produced by the skill and experience of his parliamentary draftsman and was not the kind of Bill which was to go through the Houses of Parliament as finished legislation. We see it already and we had his colleague, who substituted for him, replying to the Second Stage of the Bill in a very generous way singing the praises of an amendment accepted by the Minister for Justice in the Dáil although it was moved by this party.

Therefore we can dismiss as merely a convenient argument by the Minister —and it is the sole argument he has made on this of any substance—the argument that we must rely on the skills and experience of the parliamentary draftsman. I do not care whether the Seanad is abolished or not but I do not see any reason why we should, merely on the obiter dicta of the Minister, regard ourselves as redundant, unnecessary, as drones who serve no useful purpose in looking at legislation. I do not see any reason whatever why the collective wisdom of this House should be so lightly dismissed by the Minister——

Wait now. There is no proof at all of collective wisdom——

——because he thinks we should rely on the skill and experience of the parliamentary draftsman. I utterly reject that approach by the Minister. It is an insult not merely to this House but to the other House of the Oireachtas as well. The Minister was saying that there is no proof of collective wisdom. Does he mean by that that all the wisdom reposes on the benches which support him in this House or is he going further by saying that there is no wisdom whatever in this House—that whatever bit of wisdom and enlightenment is brought to this House is only when the Minister steps into a seat, having failed to be here to reply to the Second Stage——

The Senator made the statement that the collective wisdom of this House wants his amendment. The only way that can be discovered is by a division. It can then be seen whether the collective wisdom of the House wants it. Until such time as the House proves it in that way——

A mistake which is frequently made by youthful politicians is that every question of who is right and who is wrong is to be decided by a count of heads, by people going like so many well-drilled ballet boys to the division lobbies. That does not settle anything in a situation where a Minister can crack the whip and know that he has a majority. Whether a Minister is made of the right mettle very frequently depends on his ability to listen to the views of a minority as advanced in this House or in the other House of the Oireachtas.

Would the Senator like to reconsider what he said there a few minutes ago? I resent it very much. The insinuation was contained in the Senator's remarks that the Minister was not here to answer the Second Stage of the Bill. The Senator knows very well that he ought to reconsider that statement—that it will be resented by everyone on this side of the House.

I made a factual statement that the Minister was not here to answer to the Second Stage of this Bill.

The Senator knows the insinuation which is in that statement—in other words, that the Minister was afraid to face the Seanad.

I make no apology if Senator O'Higgins is endeavouring to criticise me for not having been here. I went out for three-quarters of an hour and because the Opposition were not able to keep the debate going I was taken by surprise. My colleague more than ably filled in for me. I have been at this Bill continuously since 6 o'clock yesterday.

If the Minister would be a bit orderly, there was no imputation in what I said that the Minister was afraid to face the reply to the Second Stage.

That was the impression.

If it was, it was a wrong impression. If I gave that impression, certainly I did not intend to and I would withdraw it. I made a factual statement that the Minister was not here to reply to the Second Stage of the Bill.

That is all right.

That is a fact, and I repeat it. I dealt with the Minister's argument that all we can do is to rely on the skill and experience of parliamentary draftsman. What was the only other argument he put up against this amendment? It is that it is not necessary to define in an Act of Parliament something which is clearly understood and that the term "military custody" was clearly understood. I wonder would the Minister like to reconsider that, like the invitation extended to me by Senator Ó Maoláin.

Has the Minister taken the trouble in relation to this matter, for example, to look up the definition section of the Defence Act of 1954? Is the Minister aware that in that Act a definition is given—and an extremely good definition—of what civil custody is? If it was necessary in the Defence Act of 1954 to spell out what civil custody is, is it not equally necessary in a Prisons Act of 1972, which is dealing with the transfer of prisoners to military custody, to define what we mean by "military custody"? The Minister thinks that all this can be settled by a count of heads. I would have hoped that the Minister's attitude in relation to the Committee Stage would be, as I suggested when I was speaking on the Second Reading, one of co-operation.

Whatever the Minister may think about it I certainly do not agree that this House should be so lightly dismissed on a Committee Stage of a Bill no matter how urgent that Bill may be. I would be quite prepared to facilitate the Minister as far as possible. I recognise that he has had a difficult day, that he had to deal with this Bill in the Dáil and that he has to deal with it here. I recognise that we are in somewhat the same situation as we were in relation to the Forcible Entry Bill last summer—that the Minister does not want to have to return to the Dáil with amendments from this House. I am prepared to meet the situation that the Minister will do his best to avoid having to return to the Dáil. That is not a practical difficulty in the present case because when the Dáil meets tomorrow the Minister can bring before it any amendments which are made by this House and he can still have the Bill signed by tomorrow. That is his target, according to the remarks he made when he was introducing the Bill.

I hope that the Minister, before this Committee Stage is over, will prove more co-operative in discussing the details of this Bill. I do not want to see the Minister without this Bill. I should like to see the Minister have this Bill signed tomorrow as he wishes, but it is no excuse for us as legislators to be slovenly in our own work. I could well imagine if the Minister were sitting in these benches and a Minister from this party was introducing a Bill without such a vital definition as this in it, repeating with a better vocabulary than I have the arguments I am making. I would ask the Minister to reconsider this matter. Not alone do I not want to deprive him of having the Bill signed tomorrow but I do not want the Minister to be in difficulty if this Bill goes through with this kind of infirmity.

I am not being hyper-critical about that, because I am not expressing any particular concern for the Minister himself in the political sense. I have no particular wish to advance the Minister's political future but the reason I do not want to see the Minister in difficulty in relation to this Bill is because if the Minister is in difficulty all the rest of us are too.

The sooner this Bill is passed the better. The sooner it is signed the better. I do not know whether Senator O'Higgins realises that what he is suggesting is that by bringing this Bill to the Dáil in the morning everything will be honkey-dory. As far as I can ascertain from the gentlemen in that House, it was agreed that the Bill would be finished there at 3 o'clock today and that we would get it here at 3 o'clock. You know what happened. Things do not always work out in the Dáil in the same way as we work them out in the Seanad. They are much more irregular. I have no confidence whatever in any arrangements the Senator might suggest could be made in the Dáil for an expeditious job in the morning. Therefore I think it much wiser—a bird in the hand is worth two in the bush—to stick to the programme we have and finish the Bill tonight so that it can be signed as quickly as possible.

An Leas-Chathaoirleach

I would like to remind Senator Ó Maoláin that in his remarks he went rather close to criticising the manner in which the other House conducts its business, and this would not be in order.

If the Chair would read the Dáil Debates he would see that occasionally they fall out in bad manner in the Dáil too.

An Leas-Chathaoirleach

The Chair is concerned with the comments being made in this House on the proceedings in the other House.

The most important law ever passed in the world contains no definition. It is called the Ten Commandments.

Would the Minister recite them? There is something about honouring your elders in them. I am afraid I am not about to do that now when I talk of Senator Ó Maoláin's contribution. We seem to have had a third argument added. Let us recap it for the record. The Minister is against this amendment because he thinks it is our duty to rely on the skill and experience of the parliamentary draftsman. He thinks it is unnecessary to write in a definition when the words used in the Bill are in plain language. The third reason advanced by the Leader of the House is that the Leader of the Fianna Fáil Party in the Seanad supporting a Fianna Fáil Minister in the Seanad has no confidence in the Fianna Fáil Party in the Dáil.

I did not say that.

I took it that the Fianna Fáil Party were the majority in the Dáil and that if they wanted to get through their business by a particular timetable it could be arranged.

They are democrats and they like to let the other side have their say, the same as I do here.

An Leas-Chathaoirleach

I feel I must intervene again. It is not proper to discuss in this House the manner in which Dáil Éireann conducts its business.

I could not agree more with the Chair. We have a fourth argument now that in the other House they are democrats and, presumably, in this House we are not. These are the arguments which are being advanced against this amendment. I do not want to be facetious in dealing with this; I regard this as a serious Bill. I regard it as a serious flaw in a Bill if the Minister, with his eyes open, and the Senators sitting to his left or behind him, with their eyes open, refuse to accept either this amendment or a ministerial amendment which would provide a definition of "military custody" and I think the Minister will find himself in difficulties. I may be entirely wrong in that. I am not being insincere when I say that if the Minister does not accept this amendment or a similar amendment—I hope I am entirely wrong in the point of view I am advancing but in my judgment I am not wrong—he may be in difficulties if he does not tie up the loose ends which occur in the Bill at the moment. One of those loose ends is the omission of any definition of "military custody". If the Minister wants to take a chance on it I cannot prevent him from doing so. I can merely try to persuade him.

If the Minister has closed his ears to any argument on this question there is nothing I can do to help him except try to persuade him by the votes of Senators in this House. I am prepared to do that if necessary. I had hoped it would not be necessary because, with all due respect to the views expressed by Senator Jack Fitzgerald, I feel that this Bill, even though it is an emergency Bill, is of such importance that it would do nothing but good for this country that there should be a definite degree of solidarity shown in the approach of the Legislature to the problem with which we are confronted. The Minister's attitude in saying that the matter can be settled by a Division, that we can find out by a Division where the wisdom lies, is a divisive attitude which I do not think will help him or help this House in relation to discussion on either this or other amendments.

I do not presume to know anything about law and I do not intend to enter into any discussion about law. I am struck by Senator O'Higgins' plea for and concern about this amendment. If he is so concerned with the future of the country he has colleagues in another House—we are not allowed to discuss the Dáil—who could have got that amendment through today and we would not be faced with this argument now. I have no doubt that Senator O'Higgins read this Bill this morning and it strikes me as rather late in the day to make this amendment now when he could have had it passed in the other House.

If I thought that Senator O'Higgins was right in thinking that the Minister would find himself in difficulties by not putting in this definition I would be urging the Minister to accept this amendment. I think, on balance, that the Minister is far more likely to be in difficulties by accepting this amendment than by rejecting it. It is wrong to assume always that giving definitions of every term used in a Bill is necessarily going to improve it or going to help in the interpretation of the Bill. The definition that has been suggested is not much more than a dictionary definition. It explains what military custody means, which could probably be obtained by opening a dictionary. This is not the function of a definition in a Bill. Where the term is one which can be readily understood there is no need to define it and in so far as it is necessary to define it when it comes to interpreting the Bill the court is the proper body to interpret it. By attempting to put in a definition, the Bill is far more likely to meet with difficulties in the future. I see no necessity for it and, on balance, I would be very much against it. There are many things in this Bill and in every other Bill that comes before us which you could attempt to define, but it is a mistake to do so. The tendency in recent times in the drafting of Bills is to leave out definitions and leave it to the court to interpret it.

There are very special cases where you want to strain a particular phrase or number of words to include something which would not normally be included but this is merely for convenience. To say "cattle" should include "rabbits" is merely for convenience but normally definitions are to be avoided if at all possible. I believe in this case that the definition suggested by Senator O'Higgins is more likely to lead to difficulties in the future.

I wonder if Senator Ryan could say what difficulties have been caused in any sphere or in any court in this country by reason of the fact that we have in the Defence Force Act, 1954, a definition of "civil custody". Could he say what difficulties have been caused by reason of the fact that we have in that Act a definition of "service custody", or that we have in that Act a definition of what is a civil offence or a civil court? These are all defined, and closely defined, in the Defence Act, 1954. We are told that the expression "civil custody" means "the custody of the Garda Síochána or other lawful civil authority authorised to retain in custody civil prisoners and includes confinement in a public prison".

Can the Senator say what good it does?

It lets everyone know exactly where he stands. That is the good it does. May I put it to Senator Ó Riain: what harm does it do to let everyone be clear as to what exactly our legislation means?

Anything that is surplus to a Bill or an Act is "harm" to that extent.

That argument might be very sound, very valid, and very substantial, if I agreed with the view that it was surplus. It is not. My view is that it is necessary, and that if the Minister does not include it, he may be in difficulties. However, I have made the point and there is not very much more I can do about that.

Amendment put and declared lost.
Question proposed: "That section 1 stand part of the Bill."

In relation to section 1 I should like to draw the attention of the House to one point, and in particular the Minister and Senator Ó Riain, who have been arguing that definitions were not necessary, and that we all knew what was meant. Now we are told in the Bill that "Minister" means "Minister for Justice".

To save a phrase being repeated time and again throughout the Bill.

Question put and agreed to.
SECTION 2.

An Leas-Chathaoirleach

Amendments Nos. 2 and 3 are alternative amendments and may be debated together.

I move amendment No. 2:

In subsection (3) to delete "or prison staff".

This amendment is put down to cover a point which I dealt with on the Second Stage and which was also dealt with in the Dáil. Amendment No. 2, which is to delete "or prison staff" in subsection (3), is a repetition of an amendment which was moved in the Dáil and which, I think, was negatived there. Amendment No. 3 is, as the Chair has quite rightly pointed out, an alternative to amendment No. 2. On the Second Stage I made the point that, as I understood it, the basis on which this Bill had become necessary and was being recommended by the Minister to the Houses of the Oireachtas, was because of lack of accommodation by reason of the damage done to Mountjoy Prison. I pointed out that subsection (3) goes a lot further than that. It does not limit the operation of the Bill to lack of accommodation, but it extends it also to insufficiency of prison staff. I queried that and pointed out that, at least in theory, a situation could arise where the Minister had let the prison staff run down. By reason of a shortage created over a period of time, if this Bill is passed in its present form, he could then legitimately say: "Now there is insufficient prison staff and I can operate the Prison Act: now I can get so-and-so and so-and-so, who is in Mountjoy or Limerick, transferred to military custody."

I did not suggest on Second Stage— I think I made this clear—nor am I suggesting now that the Minister would have any intention of acting in that way. I am just saying that it would be open to him, or to any other Minister who succeeds him, to act in that way if the Bill is left unaltered. I concede that there may be particular instances where a staff shortage arises. In circumstances such as those, I could see that an argument could be fairly made that this also should entitle the Minister to turn for assistance to his colleague, the Minister for Defence. It is because of the reservation which I have in mind, because of the possibility of a sudden emergency happening which might cause a shortage of prison staff, that I suggest amendment No. 3 as an alternative to amendment No. 2. In relation to subsection (3) this would read:

If and whenever, at a time when this section is in operation, the Minister is of opinion that prison accommodation or prison staff——

I would insert after that the following:

(in the event of a sudden emergency causing a shortage of such staff.)

In other words, the Minister's entitlement to operate the provisions of this Bill, when it becomes an Act, on grounds of shortage of staff, should be limited to cases where the shortage of staff is caused by a sudden emergency.

If the Minister is not prepared to delete the reference to prison staff, as I assume he is not by reason of the Dáil discussion, I would ask him to consider, at least, putting the position on the basis proposed in amendment No. 3.

I want, briefly, to support the amendment proposed by Senator O'Higgins. It is possible that even if the Minister does not accede to the suggestion that the subsection should be amended, the Ministerial opinion contemplated by the subsection will still be subject to judicial review. As the Minister knows, the courts have recently taken the line that a Ministerial opinion, or any other kind of administrative opinion, must be reasonable. In other words, it would not be open, even on the subsection as it stands, for a Minister simply to form an opinion mala fide, and on the basis of an ostensible opinion about prison staff to operate the powers which this subsection contemplates. It would not be possible for him to do that. I mention that merely in a prudential vein. I think it would be wise for the Minister, if he is able to do so and if it is possible, to accede to Senator O'Higgins's suggestion. I can envisage not this Minister nor his Government, but some future Minister or Government, if this law is still in force, doing what Senator O'Higgins suggests and allowing a prison staff to run down to a point where they cannot control and could not control the inmates of a prison, and using that as the pretext for transferring them to military custody.

Senator O'Higgins's amendment is a reasonable one. I recognise that the Government are under pressure and difficulty of a kind which could be measured in hours, but in fairness to Senator O'Higgins's argument I must say that it is a perfectly reasonable one and one which the Minister might accept.

I am glad Senator Kelly made that point, because I have some vague recollection of a decision of that nature. I was not very clear on it. It reinforces what I said in the Dáil this afternoon in relation to these amendments which are basically in the same terms as an amendment which was not passed in the Dáil. As of now, there is a shortage of staff in our prisons and there is also a shortage of accommodation. It would be imprudent not to provide for the eventuality that there might not be a temporary shortage in the two-year life of the Bill. The numbers of staff must be related, first to the size of the prison population and, secondly, to the intensity of security required at any given time. As far as the size of the prison population is concerned, the number of prisoners is increasing and it could easily happen, as envisaged in amendment No. 3, that a steady gradual increase could change a situation from where the number of staff who were sufficient in January would be inadequate by March of the same year.

As far as the intensity of security is concerned, there could be a need for intensification of security at a particular time, or over a particular period, which would involve a severe strain on existing staff in the prison. This would be so even though there was no accommodation problem or no undue or unusual increase in the prison population. There is a further factor in that it is likely that within the period of life of this Bill I will acquire further establishments or institutions for the detention of males over 21 years. These institutions may be on the lines of Lochan House, which I am just about to open at Blacklion, County Cavan, and also on the lines of Shanganagh Castle, Bray. I am committed to the idea that these small centres—one might like to describe them as large private houses—rather than vast impersonal institutions are much better for the treatment of young people. The numbers detained in them should not exceed 40 or 50, if at all possible. When one disperses the prison population in these smaller units around the country, as I am in the process of doing, the demand for staff increase more than pro rata with the increase in population. Obviously, a particular establishment will need a certain basic force to look after it.

There are certain unavoidable overheads which would be avoidable in a large institution on its own. When these additional institutions are provided—and I hope more of them will be provided during the next two years —I will then be in a position of having enough accommodation and, indeed, possibly ample accommodation, but at a given time I might have an insufficient number of staff in all the prisons and similar institutions. For that reason, I would have to insist that these words would stand.

I want to put one point of view to the Minister. I am somewhat alarmed to learn from the Minister that he apparently envisages a situation where, by reason of the terms of this Bill, he will be able to direct the transfer of prisoners to military custody because there is a gradual decrease in the number of people serving in the prison service. I feel that that militates to a great extent against what I thought was the basic reason for the introduction of this Bill. It is a terrifying prospect to find that what I advanced merely as a possibility was something that had been thought of. I was at some pains to point out that I did not believe the Minister had in mind allowing the prison service to run down but it is something analogous to that that apparently is the argument which is being used by the Minister. He is not allowing the prison service deliberately to run down, but he tells us that there is a gradual decrease, and because of this gradual decrease——

I said no such thing.

Maybe I misunderstood the Minister.

I am sorry. I misunderstood the Minister. Of course if there is a gradual increase in the prison staff——

I talked about a gradual increase in prison population.

I am talking about prison staff and I will refer to prison population in a moment. Am I correct in saying that the Minister's view is that there is a gradual decrease in prison staff?

Not at all. On the contrary, I have recruited more staff in the last 12 months than were recruited in 25 years before that. There were over 100 additional staff brought into our prisons in the last 12 months. As I mentioned in the Dáil, I got sanction recently for a further 150.

The Minister need not feel a bit prickly about this. I am not suggesting that he is not trying to get prison staff. I heard the Minister speaking on television about the efforts to get increased numbers on the prison staff and I was rather taken aback by my misunderstanding of what the Minister had stated here. I thought he had been making the case that there has been a gradual decrease over the years in prison staff, and that that was the reason why he wanted these words to remain in the Bill. There was no decrease in prison staff and I am glad to learn from the Minister now there has been a substantial increase in the prison staff—it fortifies my argument and lessens the Minister's argument, if we leave out of account, and we cannot do this, that there is an increase in prison population. I have made a note having regard to what I have already said about the drafting of these amendments. I should be happy if the Minister were to accept amendment No. 3, even if he added in "or an increase in prison population", in other words, if the reason for using military custody, not being related to lack of accommodation should be due to a decrease in prison staff which was caused by a sudden emergency or a sudden increase in prison population.

If we deal only with the question of a gradual increase in prison population and couple with that the Minister's efforts to increase the prison staff, then a gradual increase in prison population should not justify a direction to transfer to military custody. A sudden increase in prison population might be a justification for implementing the machinery of this Act and I would be happy to have the Minister insert by way of amendment to the amendment a reference to an increase in prison population.

I wonder if Senator O'Higgins's point could be met in part at least if the Minister were to consent to amending in his own time and way subsection (6) of the section, that is, the details which are to be laid before both Houses. These details are simply the names, addresses and the sentences, where appropriate, of the persons concerned. In a case falling within subsections (3) or (5) it might not be inappropriate if the Minister were also to detail in the information which he lays before both Houses what exactly has led him to take this step. In other words, if he were to include along with these details the reasons, namely, lack of accommodation and lack of staff, which have led him to take this step, that would automatically lead to a possible debate in either House on the adequacy of the reasons which the Minister alleged.

As a matter of practice I would give the reasons anyway.

I am sure the Minister would, but would the next Minister or the Minister after him?

If he did not he would be open to strong criticism. He would be asked why did he suddenly decide out of the blue to transfer people to military custody, presuming there were no people in military custody at that particular time. He would have to give some reason. Subparagraph (a) of the subsection sets out that the Minister must certify in writing that he is of that opinion, so that what Senator Kelly suggests might go into subsection (6) is actually contained in subsection (3).

It does not say which of the reasons.

If the Minister would give an assurance that he would do this I would be happy.

Leaving out the inessential words, "if...the Minister is of opinion that prison accommodation is insufficient to provide secure and reasonable conditions ... he may, in writing, certify that he is so of opinion and direct the transfer..." He must specify it.

Prison accommodation or prison staff.

It is only one or the other. It could, as was pointed out to me, be both simultaneously.

I agree with that. I would accept Senator Kelly's suggestion and I would accept the Minister's suggestion relating it to paragraph (a) if the Minister would assure the House that in certifying as to his opinion he will say, in the event of its being one or the other, which it is and that if his opinion is based on insufficiency of staff, he will say so.

He can only and must say one of three things. He must say he is of opinion that prison accommodation is insufficient, or that prison staff is insufficient or that prison accommodation and prison staff are insufficient. One or other of those three must be set out in the written certificate. That would be a public document.

If that is the Minister's reading of it, I am happy.

I do not think one could read it any other way. I do not think the words I skipped make any difference to the sense of that part.

May I make this suggestion to the Minister? I could visualise this becoming quite a stereotyped thing as to what would be recited in the substance of subsection (3), whereas subsection (3) of section 2 of the Prisons Act, 1972, provides that the substance of the subsection be recited and at the end "and whereas the Minister so certifies". That would not let anyone know which ground he was certifying and yet it would be in compliance with the section. But if the Minister says that he will spell out on his certificate whether it is all three, both or one only, then I am satisfied with the position.

We are not talking in this instance about something that might or might not happen at some time in the future. We are, assuming this Bill goes through here tonight, talking about something that I will be doing tomorrow. The certificate I will sign tomorrow will contain the recital "Whereas I am of opinion that prison accommodation is insufficient to provide secure and reasonable conditions of custody, now this indenture witness," etc.

Could I ask the Minister whether he has already made up his mind which prisoners are going to remain in the Curragh and which will remain in civil prisons?

Would that not be better raised on the section? When we finish with the amendments, the Senator could raise it on the section.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.

I move amendment No. 4.

In subsection (3) after "aforesaid" to insert ", being persons on remand or sent forward for trial or sentence," and to delete paragraph (iii).

I would not have moved this amendment if I had been convinced that this Bill was simply one to deal with a problem of accommodation following the destruction of part of Mountjoy Prison. Just as the previous amendments, with which I sympathise considerably, dealt with the reasons for the Minister's exercise of a power which is to be given to him under this Bill, the amendment I propose is an attempt to deal with the type of person who will be affected by the Minister's exercise of the powers to be granted him under this Bill. The effect of my amendment, if accepted, would be to remove from the category of persons in detention and subject to the Minister's wishes in this matter, people who have been sentenced for any crime. Perhaps it is incumbent on me to point out at this stage that if this amendment is accepted by the House there will be a consequential amendment to which my attention has just been attracted in subsection (6) of the same section where the words: "and, where appropriate, the sentences" would also have to be deleted. In many senses I am not happy with this particular amendment as creating a distinction between classes of prisoners, between, on the one hand, prisoners who are on remand or who are sent forward for trial or sentence and, on the other hand, prisoners who have been convicted by a court of the land. I justify this on the grounds that the Minister's statements since the Bill has been introduced have led me to understand that there are already substantial distinctions being made in the Minister's mind between different categories of prisoners to whom he intends to apply this Bill.

If I had been convinced that it was simply a matter of finding rooms, beds, locks and keys for individual persons for whom an accommodation problem existed by the destruction of part of Mountjoy I would not have moved this amendment. I brought in this amendment because although the Minister did claim the damage to Mountjoy and the consequental need for extra accommodation as one of his reasons for bringing in this Bill, he also asked for it specifically for two other reasons which are quite different in connotation and which imply a distinction already drawn in the Minister's mind between categories of prisoners.

The first one I have in mind is when yesterday in the Dáil—the quotation is from today's Irish Times—he argued for this power to be given to him on the grounds that he needed to segregate certain violent prisoners from other prisoners. In this evening's Evening Press having mentioned in the Dáil the damage to accommodation he is quoted as saying:

Taking into account all these factors and the disturbed state of the country, north and south, as well as the unfortunate likelihood that they would have to hold in custody prisoners of a particularly dangerous kind for the next two years at least the time limit he proposed was the minimum compatible with these factors.

We have a completely new situation introduced by these two statements of the Minister. He is not just asking for extra accommodation for extra people.

He is asking for extra accommodation for a particular kind of person, to be more precise, for two particular kinds of person, first, the violent type, secondly, the person whose imprisonment is in some way connected with "the disturbed state of the country, north and south". The Minister need not have these distinctions so explicitly if what he had in mind was simply the matter of providing additional accommodation.

It becomes clear in the light of what he said that what he has in mind will be establishments created to hold specifically these two kinds of prisoners. I believe the Minister is creating these institutions for particular classes of prisoners. I question whether it is right or proper for him to make this class of distinction between prisoners.

This point was put very cogently by Senator Kelly on the Second Reading.

I agree wholeheartedly with his analysis of the situation without necessarily agreeing with his suggested remedies. I believe that any prisoner who is convicted of a crime, no matter what he subjectively thinks his crime to have been committed for, is entitled to the full, however inadequate, rehabilitatory services of a normal prison and should not be locked up in what will undoubtedly turn into an Irish equivalent of a maximum security prison with distinct political overtones. I am against creating ghettos of any kind in society.

Creating a ghetto of this kind for violent prisoners or those whose crimes carry, at least for them, political overtones is basically a step which can only be successful in the short term. The whole history of this kind of institution, whether it was the concentration camps during the war, or before that the internment camps in which Irishmen were interned and since then the internment camps established in the Curragh by native Irish Governments, shows that these institutions, far from remedying the problems they set out to solve, only provide a reservoir of bitterness, an ideological deepening and a totally unrealistic approach to the basic problems they set out to solve, only provide a reservoir of bitterness, an ideological deepening and a totally unrealistic approach to the basic problem. Karl Mannheim, the German sociologist, has said—I have used this before but not in reference to the Minister for Justice's Department—that the fundamental tendency of the bureaucratic mind is to reduce all problems of politics to problems of administration.

The problem of how we cope with our offenders in society is fundamentally a political one quite irrespective of whether the offenders believe they have or have not any particular political justification for any crimes they may commit. The way we treat our convicted criminals is a very useful indicator of the way in which we believe our society should be run. I am against creating distinctions against prisoners. Alarmed by the distinctions which the Minister already appears to have in his mind, I am proposing that convicted prisoners, that is, people on whom society has already passed judgment, should never be segregated, least of all in terms of their real or supposed violence or political allegiance, because this is the worst possible way of reintegrating them back into society, an aim to which the Minister for Justice has pledged himself.

I agree with Senator Horgan that no distinctions should be drawn between people convicted of an offence which, so far as the law is concerned, is the same offence based on the motive which induced them to commit it. While I think there should not be a special category here of political prisoner who gets honourable treatment like the treatment which was given by the German army to an officer who had been guilty of an honourable offence and who was confined to a fortress where he could eat all kinds of good things and drink good wine. That is not what the Irish people want. I would not go along with it.

On the other hand, I agree with Senator Horgan that there should be no excessive severity towards people because of their political views. This is the point which Senator Horgan has missed in his remarks. The State is perfectly entitled to decide as a matter of discussion which prisoners require more security than others. I see no objection to it. I feel that the governor of a prison or those advisers from the Department of Justice or elsewhere are entitled to make up their own minds and are under a duty to the public to make up their own minds which kind of people require more security and which less.

For example, a man who has been convicted for a bank robbery in which possibly someone has been killed will require supervision of a different kind to that required for, say, a woman who has been sent to prison for living on immoral earnings or soliciting or some such thing. It seems that that is unarguable. Common sense dictates that the Executive should be left with this kind of discretion. This is an element of what Senator Horgan is saying which I believe is valid and which I hope the Minister will bear in mind. He was not here when I was making the same point in another context earlier, that is, if the military custody were used not just as a custodial measure but as a penal measure against specified prisoners, then it would be objectionable. In other words, there could be no objection, legal, political or any other kind, not in my view anyway, to subjecting a particular class of prisoner to an extremely close guard. I would have no objection to that. If the form of custody to which he is subjected has dimensions which could be described as penal and going beyond the imprisonment to which a judge has sentenced him, then it is not just objectionable but illegal. From the constitutional point of view, there is a core of truth in what Senator Horgan says. I have not introduced it into an amendment, because I thought it would be sufficient to express the view here so that the Minister and his advisers could listen to it. Any operation of this Bill, when it becomes law, which can be represented reasonably as conferring on the Minister or on any executive authority the power to intensify or make harsher the punishment which the court has awarded is probably invalid. To that extent, Senator Horgan's point is correct. I only want to draw the distinction in the case of the arguments that are being put forward between security—in which respect the State has a perfectly legitimate discretion to decide, putting it metaphorically or in the figurative sense, the thickness of the wall or the strength of the bars—on one hand, and the severity of the regime, on the other. But the State has not the power to select—and I am afraid the Minister, and I do not mean this Minister but some Minister, might feel he had such power under this Bill—to select prisoners to whom he was going to give the thick end of the stick to by sending them down to the Curragh. That is something which I believe, in the case of a convicted prisoner to whom sentence has been awarded by an ordinary judge, would be illegal. I hope that even if the Minister does not accept Senator Horgan's amendment, he will bear that in mind.

While there may be some general attraction about the views of Karl Mannheim quoted by Senator Horgan, they are in no way applicable to the contents of the Bill before us or, indeed, to the particular circumstances in which we are dealing with this legislation. The assumption behind what Senator Horgan and a few other people had to say, whether as anonymous senior counsel on television or in another House of Parliament, is that somewhere in this Bill the Minister is given power to be selective in treating prisoners or people on their way to prison in a way which would be more severe than under normal, existing legislation. My view is that the Minister is given no such power under this Bill.

It is quite clear, for example, that the normal procedure regarding visiting committees will apply to places where the persons may be kept in military custody, and, indeed, the regulations which the Minister for Defence will be obliged to make under this legislation shall correspond to the normal prison rules. That is quite clear in this Bill and it is nonsense to claim that the Minister is in any way given power to mete out more severe treatment than might otherwise be given to ordinary prisoners, whatever claims they may make as to their status.

One other thing that staggered me about what Senator Horgan had to say in his opening remarks and in his contribution to the discussion of an amendment is the insinuation he makes that somehow the damage to Mountjoy Jail has not been as severe as people think and that some kind of "fudging" may be going on. He quoted The Irish Times as chapter and verse for his own remarks. May I say to Senator Horgan that one of the gentlemen on the roof of Mountjoy was quoted in The Irish Times as saying:

There is no prison left. It is gone inside and there will be no walls left unless we get our conditions by tomorrow morning.

That is the sort of person with whom we have to contend in passing this legislation and in dealing with this present emergency.

I do not doubt that the information is there. I felt there should be more information there for the Minister to be more specific. I mentioned two points in my opening remarks, first, the vagueness of the statistics and the assertion that the prison was almost totally destroyed, coupled with what I believe to be a fact, that the majority of the prisoners who were there before the riot are still there. This seemed to be not incapable of explanation but certainly in need of an explanation.

I should like to make one further point in support of my amendment which would have the effect of separating from prisoners who have already been sentenced prisoners who have not been sentenced and who may be on remand. It has been one of the oldest cries of the prison reform movement in this country that considerable problems are caused by the extent to which prisoners on remand, who may in very many cases be innocent of the crimes with which they are charged, have occasion to mix with the old age, with prisoners who have been convicted.

Under the kind of scheme I am envisaging, assuming it is necessary, the pressure on the prison system would be relieved precisely by siphoning off these people who in many cases, as I say, may be totally innocent of the charges which are being preferred against them and perhaps putting them under military control as a sort of stopgap measure in a city institution. There are plenty of barracks in our cities which, I am quite sure, could be converted to the kind of accommodation the Minister has in mind with very much less trouble than will be involved in providing accommodation at the Curragh. It would have the advantage for prisoners on remand that it would not in any way seriously affect their accessibility for members of their family and so on.

Senator Keery and Senator Kelly have spoken basically on the same point. Senator Keery specifically said that nowhere in the Bill could he see the Minister being given the power to be selective in his choice of prisoners who are being subjected to a different sort of treatment.

This is a point to which Senator Kelly adverted as well. To a certain extent my point is not about whether prisoners who are transferred under this Bill are treated worse or better or treated the same; my point is that the Minister in choosing these people has to be selective. He has already given us an indication of his mind in that he is going to select specifically two kinds of prisoners. It is very bad from the penal point of view that prisoners of this kind should be segregated in ghettos, and I believe that it is a shortterm solution.

I did not really intend to say anything about this Bill but the notion has been running through the debate that military custody is a different thing entirely from civil custody. I have a small bit of experience in this field.

At the receiving end?

At the handingout end?

Does the Senator say it is the same thing?

No, I am speaking from my own experience because the inference has been that if you go into military custody it is like sending you to Siberia. My experience is that in the Curragh or any of the other places where people are put under arrest they get infinitely better treatment in military custody than they get in the civil prisons because they have not got the room there to deal with them. I am not prepared to subscribe to the idea that if you put people under military custody they are under inferior people, that they will be treated worst. They have many advantages that they would not have in a civil prison. I know that from experience. The idea seems to be running through this debate that if somebody is put into military custody he will be subjected to regulations that do not exist in civil prisons. My experience is the opposite. Most people who go into military custody are respected. They are judged entirely by their own conduct and they get facilities that could never be made available to them in civil prisons because the room is not there to do it.

We are over-alarming ourselves in thinking that if people are sent to a military detention area they, of necessity, will be worse off than if they were sent to a civil prison. My experience tells me they are much better off. They are better looked after and have more freedom. It depends on themselves what their code of conduct is. In civil prisons there is overcrowding which you have not got in military detention. From my experience of speaking to people who were there they would much prefer to be under military detention than to be confined in a place like only one of the State prisons. I would say that if they had a choice they would elect to go to a military prison.

The Minister will be inundated with applications to go to the Curragh.

The Minister will now appreciate the necessity to include definition of "military custody" because we have had one now that it is a place where you are better off and that additional facilities——

I am afraid that on that description the Senator's definition would not have done anyway. Amendment No. 4 seems to be a remarkable one. I would have found it more understandable if it had been the other way around and if it were suggested that convicted prisoners only might be put in military custody, although one could doubt it after Senator Honan's description.

I take it that Senator Horgan's views are that military custody is less desirable than civil custody. If that is so, and I assume it is, it seems remarkable that somebody who is convicted of an offence should have an easier place of confinement or regime, as is believed by Senator Horgan in the argument, than somebody who, potentially at least, is innocent. Indeed, I suppose some people who are on remand are innocent and, indeed, one must assume until such time as they are convicted that they are all innocent. It seems remarkable, therefore, to seek to have this done because if one tried to take care of dangerous prisoners and if one felt that one could hold dangerous prisoners more securely in military custody than in civil custody, as a general rule convicted prisoners would be likely to be more dangerous. Of course, the numbers of convicted prisoners in our prisons greatly exceeds the number of unconvicted, which is another factor.

However, while frankly I do not think there is anything to recommend the amendment itself it does give rise to a discussion of problems generally associated with it. The first thing that was suggested by the mover of the amendment was that in some way I was categorising prisoners or dividing them into groups. Senator Horgan said this should not be done. I see his argument even though I do not necessarily agree with it. The categories into which I was alleged to have divided them were in fact categories that I went to great pain not to divide them into. Certain elements in society try to impress on us or have us believe that there is such a thing as a political prisoner in Ireland today. Some of these spokesmen, with addresses in two places in the city of Dublin, scream and roar about political prisoners on the one hand and what they call ordinary criminals on the other hand.

As far as I am concerned everyone who is convicted of a criminal offence and is in our prisons is a criminal, a criminal full-stop, without any adjectives. I have consistently refused, notwithstanding the exhortations of all these people, to adopt the terminology which they use and which is repeated very widely throughout the papers, to the extent now that even the inverted commas which were used about them at one time have been dropped. It is almost accepted now, unfortunately, in some quarters at any rate, in the alleged validity of this claim for something to be categorised specially as different from the ordinary run of criminal. I am very tempted possibly to categorise them by saying that they are worse than the ordinary run of criminal, but I would be defeating my own argument. Therefore, I will not pursue the matter.

So far as the sending of people to military custody under this Bill is concerned, I do not recognise categories of the type which Senator Horgan has in mind and I will not categorise them in that way. Senator Fitzgerald categorises them in a certain way, too, and feels that a certain type of prisoner should be sent to the Curragh in military detention. In other words, he argues quite the opposite to Senator Horgan. I am afraid I cannot agree with him on that point. I have not made up my mind who is going to the Curragh or even what type of prisoner. I will decide that tomorrow when the Bill is passed. Certainly, I will not be picking out any of the kind of categories which have been indicated because I do not recognise them as such.

Notwithstanding what Senator Honan has said and in reply to the points very well made by Senator Kelly, I must point out that under existing regulations and for many years past in our prisons one has to separate prisoners from one another in a certain way, to separate different types of prisoners. We have various prisons and the atmosphere in these prisons differs also. Generally speaking the "regime", in its true meaning, is different. It is clearly, in practice, more severe in some than it is in others. Notwithstanding that, my predecessors and myself have had power for many years to transfer prisoners from one prison to another. If a prisoner in Limerick Prison is transferred to Portlaoise, he may feel, as most prisoners would, that he is less well off. That power has been recognised in decisions for a long time. There are dozens of these cases every year. I have elaborate powers of transfer, including powers of transfer to Shanganagh Castle from a prison or from St. Patrick's Institution.

Senator Kelly makes the point that the court, in imposing a sentence, had a particular type of institution and regime in mind but that the offender might be sent to a different type of institution under a different type of regime. My reply to that is that that happens every day of the week. We often have a boy in St. Patrick's and it can be assessed very quickly, usually less than a week, that he is the type of individual who would benefit from Shanganagh Castle. Shanganagh Castle is a completely open institution. There are no locks or bolts, you come and go and walk around as and when you wish. It has a very free and easy atmosphere; undoubtedly it is a very pleasant place. On the other hand St. Patrick's Institution was unfortunately originally built as a prison and we must recognise the fact that it is still basically a prison. A particular boy may have been sent by the court to St. Patrick's but he may spend nine-tenths or more of his period of detention in Shanganagh. One cannot comtenth plain about that. If it happens the other way around, as occurs quite frequently, that a boy is sentenced to detention in St. Patrick's but that he is very difficult to manage, as many of them are, and is having a bad influence on other young boys there—they are under 16—then I can transfer him to Mountjoy Prison. That transfer was tested in the courts many times and was found quite valid. It is recognised in legislation. That legislation is on much the same enabling lines as this legislation we are now considering.

Furthermore, a court sentences a person to a term of imprisonment. If he is a fairly long-term prisoner— six months or more—and the welfare officer in the prison concerned can get him a job, provided he is regarded as a reliable type of prisoner I regularly allow him daily release to employment a month or two before his sentence ends. I may allow him full temporary release to employment for the last few weeks before his sentence ends in order to assist in his rehabilitation. I give these examples to show that there are many instances where the custody or type of sentence which is actually served by a person sentenced by a court may be quite different—a lot better or a lot worse—than what the court had ordered. The validity of these transfers has been tested many times and has not been found wanting.

I do not want to hold the House up with this. What the Minister says about the validity of transfer regulations or statutory provisions is quite true. It was decided by the Supreme Court eight years ago that the rules which permitted the Minister to transfer people from one prison to another were valid. I realise that you cannot expect one prison to be just the same as another in all aspects. I can well imagine a certain hierarchy of preference going up between the four different prisons and the State. That is not really the point I was making. I simply want to impress on the Minister and his advisers this point, that while it is within his powers to order the transfer of a prisoner from one prison to another for reasons of rehabilitation or security, what is not within his powers —I am absolutely certain of this—is to order such a transfer for a punitive reason existing in his own mind. That is definitely not within his powers. I am sure the Minister has not made such a transfer nor has it in mind, but I wish to be on record, since I am not putting an amendment down to this effect, as having made it clear that—in my opinion at any rate—that if the power which the Minister is getting this evening is to be used not by this Minister but by any Minister in such a way as to allow him to subject specific prisoners, for reasons which are basically punitive, to a tougher regime than they otherwise would be subject to, the matter would become invalid. That is the only point I wanted to make. The function of inflicting punishment is a judicial function and not a ministerial one.

I should say that I regard this power as entirely custodian and I propose to operate it that way. In fact, I think it would be really hard to operate it in any other way, particularly so in the light of what Senator Honan had to say.

The Minister's remarks in response to the moving of this amendment were very interesting and I listened to them with great care. I should like to point out to him that the thrust of my argument on this amendment is quite different from that of Senator Kelly. I am making no judgment, no assumption, of any description about the quality or otherwise of military detention as opposed to the quality of civil detention. This is a separate argument of which I have no experience and I believe, in the circumstances, we have to wait and see. I am making an assumption, based on what the Minister said in the Dáil yesterday and today, about persons who are destined for military custody. The Minister has said that he has not made up his mind about the kind of persons we will have to confine to military custody but it seemed to me from his speeches that he had.

There are basically two problems here. First of all, there is the overall accommodation problem caused by the damage done to Mountjoy Prison. The second problem is what to do with the "baddies". I believe that these two problems, which are essentially separate problems, have been confused in this Bill and in this debate. It seems to me that the work of rehabilitation and prison control is carried on at two levels simultaneously. There is the control level and there is the rehabilitation level. Obviously there must be some of both. It has been my view that in our prisons the control element has in the past been stressed too much and the rehabilitation element has been stressed too little. I know this must be a great problem for any Minister for Justice and for any Department of Justice. What I am saying about it is a valued judgment but I give it for what it is worth.

When it comes to the suggestion, which I believe is an underlying suggestion, behind this Bill that a particular institution—for the purpose of my argument I do not care whether it is controlled by the military, the Garda, traffic wardens or anyone else—should be set up for the treatment of prisoners who are adjudged to be particularly violent or whose crimes have been in some way linked to what the Minister has described as the disturbed state of the country, North and South there is an educational analogy here which I believe is quite relevant. If you tell children that they are bad, stupid and unintelligent they will most likely end up by being bad, stupid or unintelligent whether or not they are objectively so. Very often judgments about whether children are intelligent or unintelligent are made in a totally unverifiable and unjustifiable way.

Senator Kelly made some distinctions in a sense when he talked about the difference between the woman who might be in prison for soliciting and some other person who might be in for some serious bank robbery crime involving violence. It can be a facade to categorise persons in terms of the treatment they need simply in terms of the crimes they have committed. There is the chance, in what has been said in the Dáil, and it is one I am concerned that the Minister should not adopt, of locking up all the "baddies" in one spot. It will solve the problems of society but I doubt very much if it will solve the problems of the "baddies" and it may very well intensify them.

What about the problems of the "goodies"? We will have to solve them first.

I would like to clarify what I said. I said what Senator Horgan quoted me as saying as being one of the factors we have to take into account here. I said that we have an accommodation problem and we also have violent men in our prisons. We have a serious situation in the country, North and South. I said that we, therefore, had to open the Curragh but Senator Horgan has read a further sentence into that which I never uttered which, in fact, was that therefore, all these violent men and troublemakers North and South have to go to the Curragh and consequently all the "baddies" are now in the Curragh. That is not so nor will it be so. I do not intend it to be like that. In any event the worst of the "baddies" are neither in Mountjoy nor the Curragh. They are in some other place, and by that I do not mean the Dáil.

Is the Minister perhaps referring to the Seanad?

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 3, subsection (6), to insert after the words in brackets the following:—

", the place of detention".

The Minister will recall that I referred to this matter on the Second Stage discussion. In subsection (6) the Minister has, I think very fairly—I conceded this on the Second Reading discussion—brought into this Bill a provision which requires him to lay before each House of the Oireachtas a statement with regard to people who have been transferred to military custody specifying the names of those people and the offence or offences with which they have been charged and, where appropriate, the sentences which have been imposed.

I believe, it is also necessary for the Minister to specify in the particulars which he lays before each House of the Oireachtas the place of detention to which the named persons have been sent. I should imagine that it was merely an oversight that this was not included in the particulars in the first instance. It was probably assumed by the Minister or the skilled and experienced parliamentary draftsman to to whom he referred, that there would only be one place of detention, namely, the Curragh.

The Curragh is not mentioned in this Bill notwithstanding the reported reference of the Tánaiste to this as being the Curragh detention Bill. It is open to the Minister whoever he may be, to order a transfer to military custody and the military custody could be anywhere. I think it is common knowledge that there has been, from time to time, very serious concern which at times amounted to a public outcry, about a situation in the North of Ireland where sufficient information was not given to relatives, legal advisers, and so on as to where prisoners were located.

From the point of view of practical politics, apart from anything else, it would be a disaster if a situation were to develop under this Bill, where the Minister, because he is not obliged to do so, does not give the information to the Houses of the Oireachtas as to where any particular prisoner, who has been transferred to military custody, has been detained.

The Senator should be able to elucidate that point by one question here in the House. If the Senator did not do it, Senator Kennedy would stand in for him.

I am not entirely sure of that. We have not got the facility. I know that Senator Honan is all on for additional facilities. He thinks that military custody gives all sorts of additional facilities that you do not get in——

You can ask a question here.

This House has not got the system of Parliamentary Questions. It is not unknown for Ministers to refuse to give information in reply to Parliamentary Questions. Perhaps it is not relevant to say it here, but one of the Ministers of the present Government has indicated that information will not be given by him, in reply to Parliamentary Questions concerning the health boards, for example.

The Chair would agree with the Senator that that does not seem to arise on his amendment.

I am glad I have got someone to agree with me. Maybe I shall have some luck with the Minister, now. This certainly will not weaken the Minister's Bill in any way. I should imagine that the Minister's intention is that this information will be given, except the situation is that there is a general announcement that there is only one such place. Then it can be properly assumed that anyone who has been transferred to military custody will be in that place. So far as the practical effect of the Bill at the moment is concerned, there could be any number of places where a person could be detained in military custody. The Minister is not obliged to say where those places are: He is not obliged to say where any particular prisoner is, under the information which he is required to give under subsection (6).

I entirely agree with the point being made by Senator O'Higgins. However, I am realistic enough to realise that the Minister will not accept Senator O'Higgins's amendment. I wonder if the Minister would agree to meet the point which Senator O'Higgins very rightly raises in some other way. Senator O'Higgins is probably right in saying that this is only an oversight. I do not want to blame the Minister or his Department for this, because they are doing something in haste. I believe that it is an oversight, and that if anyone in his Department or in the Dáil had spotted this lacuna in the Bill, it would have been set right earlier today. The Minister may not wish to go back to the Dáil now.

He could not go back until the morning.

That is his problem. Would he consider meeting Senator O'Higgins's point by undertaking now that when he comes to draft the regulations contemplated by subsection (9) of section 2—I am sorry, it is the Minister for Defence. Obviously, this Minister can give no undertakings about him.

I can do better. The regulations are already drafted. They include specification of the place.

To be communicated to the prisoner's friends or his legal advisors.

To be laid on the Table of the Houses of the Oireachtas, which is in relation to the subsection we are discussing.

Is that piece of information to be required by regulation? For example, if a future Minister were to take it out, one of the Houses would be able to have a look at it.

The regulations are drafted and this information is already contained in them.

This will be a regulation under——

Subsection (6).

I take it the Minister means that the form of the information is drafted. There is no regulation required under subsection (6).

There is a form——

There is nothing in the Bill that says who the direction is to be given to. I presume that as the Bill stands it is enough if the direction is given to the governor of one prison to release the prisoner from his custody and to the military commandant of the barracks. There is nothing in the Bill, as it stands, which requires——

Subsection (11).

Yes. Subsection (11) requires regulations made under section 2 to be laid before each House of the Oireachtas. I am now suggesting to the Minister that if he could ensure that the Minister for Defence, in making regulations under subsection (9), which are supposed to correspond to the rules—I presume, the 1947 rules— would provide that the prisoner's friends and legal advisers would know where he was, it would go some distance to meet Senator O'Higgins's point.

I do not see anything in subsection (6) about it. The direction there is a direction under subsections (3) or (5) and these directions are contained in sections which do not specify to whom the direction is to issue. In other words, it is not required to be published in Iris Oifigiúil or anywhere else. I am not trying to pick stupid holes in this. It is late and we all want to get it finished. The direction contemplated by these subsections seems to me to be a direction with the sense of the Act, if it merely issues to the governor of the prison from which the man is to be transferred and is then shown to the commandant of the barracks to which he is being brought.

Yes, but if a regulation under section 2 (7) specifies the form of the direction under subsection (6) and includes the place of detention, that would be laid before the House and could not be changed without——

Senator Ryan will appreciate that if subsection (11) only deals with regulations which are required to be made by any of the subsections of section 2, it becomes necessary to have a regulation made under section 2 in relation to the information to be given to the House.

It is not necessary.

No, it is not necessary. I appreciate it would not be captured by subsection (11). I should be quite happy to withdraw this amendment on a Ministerial assurance on this point. I gather from the Minister's intervention that whether it is by a particular regulation or by reason of the form already having been drafted, he is in a position to assure the House that the information relating to the place of detention will be given to the Houses of the Oireachtas as well as the names and offences of the persons concerned. I should be quite happy about that—I am not trying to hold it up. I just do not want the situation to arise where it can be suggested, either because a Minister is in a bad humour or for some other reason—that he does not answer a Question in the Dáil for instance—that there is something secretive or underhand or sinister being done by the information not being given.

I presume that under the ordinary court, the relatives of a prisoner are informed where the prisoner is.

As soon as they are transferred they are allowed to write a letter that day, irrespective of whether their allowance of letters may otherwise be used up.

I am merely putting a question to save time here. I presume this would apply under section 9?

They could not be less well off. The rules must be the same. They must correspond.

That clears up that point.

They are terrified of the question of the regulations. The regulations which will be made by the Minister for Defence under subsection (9) will specify at the start his appointment of a place to be the place of detention under this Act. It will specify one place and one place only. Therefore, anybody detained under the Act cannot be detained anywhere else. If an additional place were to be specified under the Act a new regulation would have to be made which, in turn, would have to be laid before the Oireachtas.

If that situation arose two or three times and there were two or three different places of detention, in such circumstances would the Minister assure the House that when he is giving the information he will say where the person is detained?

Of course I would.

A letter could be written.

I am talking about this House knowing, not the relatives. Senator Kelly raised the question of the position from the point of view of relatives.

I have the relevant rules in regard to the conduct of prisoners. I think they are the 1947 rules. The rules relating to visits and communications certainly allow a prisoner to communicate but they do not require anybody to communicate on his behalf with anybody in particular. They do not require the governor or anybody else to let anybody in particular know where he is. I accept that the Minister is in good faith about this.

What he has said about the Minister for Defence nominating one place only is fine, but from looking at this particular point for the first time I am not sure that the Minister for Defence or the Minister now in the House could be outside the powers of the Act if the Curragh suddenly filled up and there was a riot in the Curragh and they broke all the beds, the dental and laundry equipment and so on and they all had to be removed to other military establishments, say in Templemore, or in Ballina. I am not sure that it would be outside the powers of the Minister for Defence to keep them in out of the way stations of that kind.

Although I accept that the Minister intends that only one place will be used, in the regulations which he is speaking about I am not satisfied that the Minister is obliged to contain persons in military custody only in places for which regulations have already been made specifying where they are to be held. I do not want to bother the Minister or the House by raising foolish points. It is not a foolish point. Senator O'Higgins's point is a substantial one going right to the root of a citizen's constitutional rights. It is a pompous phrase often abused. I believe that in whatever shape or form the Minister chooses to examine the matter he will be doing himself and his successors, of whichever political colour, a disservice unless he bears Senator O'Higgins's objection in mind and has it seen to in whatever regulations are made under this Bill even if he will not accept this amendment.

On the basis of the assurance given by the Minister I will not press the amendment. As I understand it, the position will be that there will be only one place of detention and that if there is to be another place of detention there must be another regulation brought in under subsection (9), and so on, according to the number of places of detention that there are—that in that event, if there are more than one place of detention, the Minister will give the information to the Houses of the Oireachtas.

The amendment relates to a subsection which is concerned with information to be contained in the statement to be laid before each House of the Oireachtas. I do not know whether it is the Minister for Defence or I who is supposed to lay this information before the House. I presume it is I. If so, I will include the name of the place at which they are detained in all these matters.

I am satisfied with that.

Amendment, by leave, withdrawn.

I move amendment No. 6:

To add to subsection (8) the following:

"and shall provide that the person in charge of the place of detention shall be an officer holding the rank of commandant or a higher rank".

This point is also of importance. There is an error in the drafting of the amendment because the reference is to the Bill as introduced first. The reference in this amendment should be to subsection (9) of the roneoed copy of the Bill we received. This is in relation to the regulations to be made by the Minister for Defence. The position under subsection (9) is that the Minister is required to make regulations in relation to the places, and the manner generally in which persons in military custody should be kept in custody. There is a requirement that such regulation shall correspond to the rules for the time being in force under the Prisons Act. This whole subsection replaces the earlier proposal in subsection (8) of the Bill as introduced, which was much too lose in that it required the Minister for Defence to have regard only to the desirability of ensuring that the conditions in military custody would not be less favourable.

The present wording of subsection (9) is a considerable advance on that. It does not require the Minister for Defence, in the making of his regulations, to ensure that the person to be in charge of the place of detention will be a person who would be regarded as a responsible person by reason of the rank which he has achieved. I am certain the actual position will be that whoever is put in charge of the place of detention will be a responsible officer. There is nothing in the Act to oblige the Minister for Defence to provide for that and I am suggesting in this amendment that we should add to the subsection which spells out the requirements to be included in the regulations to be made by the Minister that these regulations should provide that the person in charge of the place of detention should be an officer holding the rank of commandant or a higher rank. There will be public confidence if there is no question or no danger of a person who lacks experience for example or who might by reason of junior status not be regarded by the public as a person of sufficient responsibility to be put in charge of an establishment of that kind.

The Minister may reply that this is covered in the regulations which have been made. If that is so, I will have to accept that position and I will be glad to know that it is covered. However, it would be preferable that it should be written into the Bill and that there should be no suggestion that there might be any danger of a person who has not sufficient weight or experience being put in charge of prisoners transferred into military custody.

Does the Senator suggest that great strength is synonymous with great power or that the degree of right is synonymous with the degree of brain power?

I am suggesting it should relate to ability.

If one has a bit of common sense and considers that in the barracks in the Curragh an officer of that rank, or higher, is in charge, one will realise that even if he were transferred to another barracks which is not included in the Bill, every O.C. of a barracks carries a higher rank than that. To bring in an amendment like this is wasting the time of the House. I know the Curragh well from experience.

Was the Senator ever interned?

No, but I know the Curragh Camp well and have been through the barracks there, and there is an O.C. in charge with the rank of commandant or higher. He will have to be in charge of any detention centre there.

No one can accuse Senator Crinion of having taken up too much of the time of the House on this serious discussion, but this last minute intervention by him will be an eye-opener to the Minister. I have no doubt that the Minister has read this Bill carefully and knows its contents and has failed to find any such requirement as seems to be common sense to Senator Crinion. There is no requirement in this Bill for the place of military custody to be the Curragh. Even if we assume that the place of detention in military custody is to be the Curragh, there is no requirement at all in this Bill for the officer in charge to be an officer of senior rank. He could be a corporal in the FCA.

In every barracks in Ireland there is an OC with the rank of commandant or higher.

If Senator Crinion keeps this up there is great danger that in the debate on the next section the Minister will have to specify this House as a prison because we are likely to be here for some time. I anticipate that the regulations which will be made will make a provision of this sort. It is essential to understand in relation to this matter that we are not concerned with the present military establishment in any particular barracks. We are not concerned with what ordinarily is the position in relation to the Curragh or any other barracks. We are concerned here with specific regulations which the Minister for Defence will be obliged to make by virtue of this Act. We are not concerned with any regulations he may make under the Defence Act, 1954, or any Act bar the Prisons Act, 1972. I am concerning myself purely with the regulations which the Minister for Defence will have to make under section 2 (9) of this Bill.

This subsection is imposing on the Minister for Defence the obligation to make regulations in relation to the places and the manner generally in which persons in military custody shall be kept in custody. It would be open to the Minister, under these regulations, having regard to the fact that the regulations will relate to the place of custody, to say that a corporal in the military police shall be in charge of the establishment. I am not suggesting that he would do it and I am not basing my case on that. I am basing it on the need, as I see it, for the Minister to establish confidence in what is being done by this Bill and what will be done under these regulations.

Senator O'Higgins reminds me of a man who got the last drop out of the lemon ten minutes ago and is still squeezing. The first observation I should like to make on this amendment is that under the Garda Síochána Acts, 1923 to 1972, I am not prohibited from appointing the youngest recruit in Templemore as Commissioner of the Garda Síochána. I have not done so, nor has any of my 13 or 14 predecessors done so.

The law is very defective if the Minister can do that.

Similarly, under the Defence Acts there is probably nothing to stop the Government appointing the most junior private in the Army to be Chief of Staff.

They have done analogous things in other spheres.

It flabbergasts me that such a self-evident thing should have to be spelled out in an Act of the Parliament of this country. It seems to me to be much more vital in the interests of those who will be in custody in that place that they get breakfast, dinner and tea every day. The Minister for Defence will have to specify in his regulations under subsection (9) of this section that they will get three meals every day. I think that is vitally important, but we are not asked to write that into an Act of Parliament in case the Minister and his advisers would forget it. Senators opposite expect us to believe that a corporal will be in charge of the barracks.

I do not know whether it is the late hour but the Minister reminds me of the person who has imbibed the lemon that I have been squeezing, because the longer we continue the more sour he is becoming. We do not need to spell out that the prisoners will get their breakfast, dinner and tea. What we are spelling out in this subsection is that the regulations which the Minister for Defence must make will correspond to the rules for the time being in force under the Prisons Acts from 1826 to 1970 governing the treatment, employment and control of persons in prison.

I do not know if the Minister would wish me at this hour to look up and quote in extenso the prison regulations. I am confident that if I did so I would find an obligation there which requires that prisoners will be properly fed and that they will get their breakfast, dinner and tea. If I am right in that, the example the Minister took is not all that fantastic. If I am right, then we are writing into subsection (9) the requirement that the prisoners will get their breakfast, dinner and tea.

And wash themselves.

I suggest that we should also write in a requirement that there will be a responsible officer put in charge of the place of detention. The Minister regards that as fantastic.

It is fantastic that it should be otherwise.

The Minister thinks it fantastic that Seanad Éireann should write into the legislation what we want to have done.

Would the Senator define the responsible officer?

I have done so in the amendment.

It is defined in several statutes.

You relate ranks to responsibility.

The Minister referred in the Dáil today, and I am citing from an evening newspaper, to the possibility of a special court being set up, staffed by civilian judges. If that is correct, he is referring to a section of a statute which provides for the possible staffing of special courts by military officers not below the rank of commandant. That is a simple instance of a case very much in point where the rank of an officer is regarded as being a crude index of his responsibility and experience.

I would not accept that at all.

It was Senator Ó Maoláin's Government who passed that statute.

It is a thesis on responsibility.

I take it the amendment is accepted.

Amendment put and declared lost.

I have already expressed my views on the Minister's method of deciding where wisdom lies by counting heads.

Question proposed: "That section 2 stand part of the Bill."

I have a few questions to put to the Minister on the section. He has made considerable play of the possibility of habeas corpus proceedings being brought unless this section legalises the present situation. Would he care to express his view on the possibility of actions for illegal detention being brought after the passing of this Bill, in the absence of any retrospective section to this Bill?

I should also like to hear his views in relation to the status of prisoners who will be confined under it, either to actions which may be taken against them arising from activities they have been involved in while in custody or actions they may care to take against the people who are detaining them. Will these actions be taken under military law or in the civil courts? I am also concerned to know what relevance the Minister thinks the disturbed state of the country, North and South, has to the Bill. Am I correct in assuming that he foresees, because of this disturbed state North and South, a large increase in the prison population?

There are two matters I should like to deal with on the section, mainly for purposes of clarification, although there is some procedural importance in dealing with these matters on Committee if it is proposed to put down amendments on Report Stage. I should like to ask the Minister is there any particular importance in providing at the beginning of section 2 that this section shall continue in operation for a limited time until 31st May, 1974? This was the amendment put in by the Dáil. Am I correct in assuming that effectively that means the Bill—that no particular importance is to be attached to the fact that the time limit which the Minister has written into the Bill relates only to section 2?

On this question of military custody, the flesh and bones of the Bill are contained in section 2, but I wonder if any importance can be attached from the Minister's point of view to a situation where the Bill as a whole remains law, with the exception of section 2, after 31st May, 1974. Is there any importance in continuing in operation, say, sections 3 and 4? I assume there is not and if so I should have thought that what the Minister might have done would have been to provide that the entire Act would continue in operation until 31st May, 1974, and not only a particular section of the Act. The second point I wish to raise is in relation to subsection (5). This provides

The Minister—

(a) may, at any time, direct the transfer to a prison of a person in military custody pursuant to this section, and

(b) shall direct the transfer to a prison of all persons in military custody as aforesaid if he is of opinion that circumstances warranting their being retained in military custody no longer obtain,

and, if a direction under this subsection is given, thereupon any person concerned shall be transferred to a prison.

Paragraph (a) of subsection (5) is discretionary in that the Minister may at any time transfer back to a prison or transfer for the first time to a prison a person who is in military custody. Paragraph (b) of subsection (5) is mandatory. It sets out when the Minister must transfer to a prison all persons in military custody. Possibly my query is not entirely a fair one but I am wondering if the precedent is that a matter of this sort should depend entirely on the opinion of the Minister. If a situation arises when there is some other Minister there, then it is clear to everyone that the situation which warranted the transfer to military custody no longer exists. If the Minister refuses to act on it, is there any remedy open to the persons who are in custody? Can they, for example, by mandamus procedure force the Minister to act? If there is no remedy open, it would seem to me that this matter might be looked at again by the Minister.

If we take the example where the position is reasonably clearcut but a Minister nevertheless refuses to act, it seems to me to be preferable that it should not depend entirely on the Minister's opinion, but that there should be some provision for the matter being reviewed, say, by the court.

Of the five questions which I have been asked, four seek legal advice. I wonder am I the one to give it. Even if I were, I wonder should I. To take Senator O'Higgins's last point, presumably the two steps open are either mandamus by the prisoners themselves, or the moving of a motion in the Dáil to take the section out of effect—a motion under subsection (2) of the section.

I do not know whether the Minister has anything in mind in the particular structure of the Bill.

The only effect will be to keep section 3 in force, but section 3 is not of any great significance if it is not connected with section 2. Section 3 is there to remove doubts which result from vagueness in one of the sections in the 1877 Act which is more or less the basic Act. For that reason, it would be desirable that section 3 should remain in effect.

That obviously explains it.

Senator Horgan asked me how certain people could go about suing the civil authorities.

I asked the Minister if he was worried about this possibility.

I am not terribly worried about it. Even if they were to succeed in getting a finding in their favour their damages would clearly be either nil or negligible because they are in custody anyway. Of course, that is not a situation that could go on indefinitely. The danger, as I see it, does not lie there, but it lies in the habeas corpus side.

On the question of common law negligence, I take it the Minister for Defence is the person who would be sued now rather than the Minister for Justice.

I suppose he would.

On the habeas corpus side any sort of cat-and-mouse thing like this would be undesirable, but I presume the Minister would be able to meet a habeas corpus application, even if it were brought at midnight, by shifting the prisoner quickly back to Mountjoy or Portlaoise.

That is what I would do. Apart from that, Senator Horgan asked how I connect the disturbed state of the country, North and South, with this Bill. I think it is pretty fundamental to it. The disturbed state of the country, North and South, has resulted in an event which itself has resulted in the Bill. Senator Keery gave some of the choice quotations that came from Mountjoy that night. There were many others. Those quotations were not all just verbal. The written ones were splendid, but in deference to the lady Members of this House I cannot describe what was written on the walls of Mountjoy. They were foul four-letter words.

But we are not sending them to the Curragh for that.

No, but I think it does display the type of person involved.

There are people in the country who write and use these words but who are not criminals.

Certain people who seek to involve themselves in the disturbed state of our country, North and South, involved themselves in the event which has resulted in this Bill. That is how I draw the connection.

I am completely with the Minister in his feelings about the Bill and about the people who necessitated it, but it is late at night and we are tired. Presumably, there are reporters still here and let us not reduce the subject to the level of trying to slag these stupid lunatics and madmen on account of the language they used.

Perhaps I could get an assurance from the Minister on the third point I raised. The assurance I am looking for is that at all times in connection with the internment regulation of these prisons military law is excluded and civil law, the ordinary law of the courts and the ordinary criminal law, applies.

I understand that that is so.

Question put and agreed to.
SECTION 3.
Questions proposed: "That section 3 stand part of the Bill".

Did the Minister mention that this was to clear up a doubt and, if so, what was the doubt?

I do not know the exact details. The 1877 Act is rather vague in this regard and when we found we had a Prisons Bill suddenly on our hands, we decided to put in this.

Question put and agreed to.
Section 4 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.