Seanad Éireann debate -
Friday, 7 Jul 1995

Vol. 144 No. 7

Transfer of Sentenced Persons Bill, 1995: Committee and Final Stages.

Sections 1 to 5, inclusive, agreed to.

SECTION 6.

Ms Honan

I move amendment No. 1:

In page 7, between lines 11 and 12, to insert the following subsection:

"(3) The Minister shall not consent to a request under subsection (1) of this section unless he or she has first obtained a certificate from the governor of the prison in which the sentenced person concerned will be detained certifying that the reception of that person into the prison will not necessitate the release of any prisoner detained within the prison prior to the expiry of his or her sentence.".

I tabled this amendment because of my concern about prisoners transferred from abroad taking up prison spaces here. However, the Minister indicated she will have complete discretion on accepting the transfer of prisoners to Ireland, they will not have automatic rights to transfers, she can refuse requests for transfers if spaces are not available and a waiting list system can be put in place. I will withdraw the amendment on the basis that I am satisfied the Minister will use her discretion to ensure prisoners will not be released to facilitate the return of prisoners from abroad.

Amendment, by leave, withdrawn.

Mr. Daly

I move amendment No. 2:

In page 7, between lines 11 and 12, to insert the following subsection:

"(3) Where the sentencing state does not agree to the transfer the Minister may appeal the refusal to the European Committee on Crime Problems of the Council of Europe under the provision of Article 23 of the Convention on the Transfer of Sentenced Prisoners.".

This amendment is necessary because in my view there is a deficiency in the Bill, and, perhaps, in the convention. with regard to matters of appeal when there are disagreements or disputes. If a state in which a person is imprisoned refuses point blank to agree to a transfer, in spite of the good intentions of the Bill, nothing can be done about it.

The convention appears to be contradictory in some regards. It states that, if a sentencing state refuses an application, it is not obliged to give information why it refused it. It can inform the Minister for Justice it is not releasing a particular prisoner and it is not obliged to give any reasons whatsoever for that refusal. This is apparent from the explanatory memorandum, although I know this does not give the statutory legal position. It appears that a state has the sole right to refuse to transfer prisoners and cannot be challenged in any way.

On the other hand, Article 23 refers to a friendly settlement. This appears to be a formula to deal with disputes and disagreements. This states that the European Committee on Crime Problems of the Council of Europe shall be kept informed and shall facilitate friendly settlements. I presume that, if we have a disagreement with another state about the transfer of a prisoner, this committee will have some adjudication in this regard. I am not sure if this is the intention but if not, it should be. If the committee cannot deal with this, maybe the European Court of Justice will adjudicate. There may well be vehement disagreements between member states on some prisoners, who will be left in limbo and will not have the right to have their cases adjudicated on by the committee, the European Court of Justice or any other authority.

Miss Ormonde

I support Senator Daly. A way around this problem is to provide in the Bill for appeals to the committee under Article 23 of the convention. The Minister should agree to this. This would give confidence to the public because it would know there is another mechanism available.

Mrs. Taylor-Quinn

States which have signed the convention are committed to it. If they were to refuse to transfer prisoners, this would have to be for specific reasons. However, I envisage difficulties with regard to Britain, where there are 402 Irish prisoners, 35 of whom belong to paramilitary organisations. Questions about the latter may arise as far as the British Government is concerned. There is an avenue open to us, given the negotiations taking place between the Irish and British Governments on the peace process. I ask the Minster to raise this issue with her counterpart in Britain, given that both countries are signatories to the convention. This problem can be overcome. We hope that a number of political prisoners in England will be released. Some prisoners may seek transfers to this country and we would like them to be transferred at the earliest opportunity. There is a way around this difficulty and I have every confidence this will be taken by the Minister.

I am sorry I was not able to contribute earlier. I thought Senator Lee would have spoken longer on Second Stage and that I would have been able to contribute on that Stage.

Professor Lee

I am sorry to have disappointed the Senator.

Mrs. Taylor-Quinn

I compliment the Minister on introducing the Bill. The convention was signed over nine years ago but the Bill was not brought before the Oireachtas until Deputy Owen became Minister.

Minister for Justice (Mrs. Owen)

I understand the position from which Senator Daly and Senator Ormonde are coming. They are seeking a mechanism to put manners on other countries. Article 23 of the convention states that the European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of the convention and shall do whatever is necessary to facilitate the friendly settlement of any difficulty which may arise from its application. In our domestic law we cannot change the convention or the application of the committee. However, I will put the points made by the Senators to the committee in which we play a full part.

If a country wants to accept an application for a transfer and the sentencing country refuses, the matter could be referred to the committee but this would not be in the form of a formal appeal. Attempts would be made to achieve agreement by means of a friendly settlement. We cannot in our domestic law force any country to implement the convention in a way which is not in keeping with the convention. I cannot accept the proposition that the committee should act as an appeal board. It would have to act in an informal way under a friendly settlement.

Paragraph 25 of the explanatory memorandum states that it is the basic principle of the convention that a transfer requires the agreement of the two states concerned as well as the prisoner. The question of an appeals procedure in circumstances where a state is complying with one of the basic principles of the convention would hardly arise. We have to accept the convention as it is framed in its entirety. The amendment essentially purports to confer a role on the crime committee and we cannot do this in domestic legislation. What would be at issue would be an amendment to the convention itself.

I appreciate the point raised by the Senators and this will be usefully pursued at European level. Senator Taylor-Quinn's suggestion is good and later this month I will meet the British Secretary of State for Home Affairs, Mr. Howard, who retained his position in the recent British Cabinet reshuffle and I will raise this matter with him. I cannot accept this amendment because I cannot put it into domestic law. However, I will take up the spirit behind the amendment and raise it at the committee.

Professor Lee

This may appear an academic observation, and it probably is at present, but it may not be entirely useless in the long run. The Minister agreed that the principle behind the amendment is constructive. Accepting what she said about the impossibility of incorporating this provision in domestic law, I would like to raise a scenario. The amendment states: "Where the sentencing state does not agree to the transfer the Minister may appeal". We are a sentencing state also in this context. If the issue was to be further processed at the European Committee on Crime Problems in the Council of Europe, would it be in order for us to think of giving a lead in trying to facilitate due process in this matter — in other words, orderly agreement about the renunciation of our full rights in the matter if we thought it would facilitate activity under this legislation?

Where issues arise concerning prisoners in this State and where appeals are made to us, we could offer, if a difference arose, to submit them for arbitration or settlement to the European committee. We could nudge forward conceptualising the role of the European committee and expanding its role and giving good example to other members if we thought it was in the interest of facilitating the principle behind this legislation internationally. Would there be anything to prevent us doing that? I know it is marginal at present, but it is something we should keep in mind and activate in due course. The principle of humanitarianism underlying these provisions is one we should try to reinforce in practice as far as possible, although the issues which might arise may be rare in practice.

Mr. Enright

I am pleased that the Minister will take up this matter with the European committee. There would be a problem if a government had a certain view on an individual and opposed a transfer on grounds which we regarded as invalid. I understand what the amendment is trying to achieve, but I go along with what the Minister said in that she wants to try to see if this matter can be resolved. There are problems which we must not try to disguise.

The peace process has been successful and has been supported by all parties on this island and in Britain. However, the recent release of Private Lee Clegg has caused problems, particularly in the North. It has upset people in Ireland and, I am sure, in Britain. It is essential that the level of goodwill that we have seen as regards the release of prisoners and the efforts made by this Government is maintained. If somebody has been convicted of paramilitary activities and wants to be transferred back here, difficulties will arise if a firm attitude is taken by the British Government.

I understand what the Minister is trying to do as regards the spirit of the Bill and the goodwill expressed in the friendly settlement referred to in article 23. I do not believe this problem can be resolved today and I am happy with the Minister's assurance. She should communicate with the House to let us know what progress has been made when she makes representations on this matter. This is a friendly settlement, which means that the two sides must work together.

Mrs. Owen

Senator Lee made an interesting intervention. However, my hands are tied. This convention has been passed by 34 countries. Although I can make some noises, an amendment to the convention would be required, as would agreement by all countries. We are the only country which is including in its legislation the need for an annual report. When we contacted the Council of Europe offices to get some background on the implementation of the convention in other countries, we found that there was little gathered wisdom available. We said that we were thinking of including this provision as regards an annual report and we asked how it worked in any other country. We were told that no other country had done that. I would like to suggest this to other countries.

An annual report will allow us to identify where there are considerable disagreements. If I want to give a transfer but am unable to do so, I will be able to list in the annual report the number of applications to which the sentencing country would not agree. We will be able to establish a pattern as to how this is working. We do not know how this will work until it begins. I do not have that power as regards article 23. Anything I suggest would reduce the discretion at the heart of this convention. I do not believe that we could renegotiate it without removing this discretion. I, therefore, cannot accept the amendment.

Mr. Daly

I am not asking the Minister to renegotiate anything. We are asking her to break with the convention to include this provision. She has done so already in relation to the annual report.

Mrs. Owen

This is creating an appeals system and I cannot do that.

Mr. Daly

It is not really. It is giving effect in this legislation to something which is already in the convention.

Mrs. Owen

The Senator is being disingenuous.

Mr. Daly

Senator Enright put it better than I. He said clearly that the spirit, thrust and purpose of this legislation can be negatived if, for example, there is a difficult Justice Minister in the United Kingdom who may say that they will not transfer Joe O'Connell from County Clare back to Ireland——

Mrs. Taylor-Quinn

Or Harry Duggan.

Mr. Daly

——or Harry Duggan. As far as this legislation is concerned, that is the end of it. They do not have to give an explanation as to why they will not transfer prisoners back. We may find that this may work out very amicably in practice. However, I see problems arising fairly soon, especially in relation to special category prisoners to which Senator Taylor-Quinn referred. These are sensitive cases and these people have been in prison for many years for committing serious offences. Nevertheless, the humanitarian element must be taken into account. There is no way to appeal decisions made by a difficult Justice Minister in the United Kingdom. Some Ministers may not be as hospitable as the Minister. Problems may arise very soon and this legislation may prove to be deficient.

My amendment is carefully worded from article 23 of the convention. I propose that it be included in this legislation to give notice of the intention to utilise it in the event of somebody being difficult about transferring prisoners. I presume the convention has been ratified by many member states and has been in operation. Does the Minister have any indication or knowledge at her disposal as to how many cases have been dealt with by other member states and whether this kind of difficulty has arisen between, for example, the UK and France or between Spain and Portugal or whoever?

Acting Chairman

Is that question to the section, Senator?

Mr. Daly

It is related to the amendment. Such information would give the Minister an indication as to whether there are difficulties arising with this issue. I have good reason to presume that problems have already arisen between some of the parties to the convention.

Acting Chairman

Is the amendment being pressed?

Mr. Daly

It will be pressed unless we obtain a satisfactory reply.

Mrs. Owen

It is somewhat disingenuous of Senator Daly to imply that this——

Mr. Daly

I have been very generous——

Mrs. Owen

No. The Senator's suggestion fundamentally undermines the discretion——

Mr. Daly

It does not; it is written into the convention.

Mrs. Owen

It fundamentally undermines the convention. The convention says that each of the three parties — the sentencing state, the administering state and the prisoner — must agree. If an appeal system is instituted it takes away the right of one of the parties to say "yes" or "no", as the case may be. In the other House, Deputy O'Donoghue put down another amendment to the same effect, addressing the same fundamental point.

If the Senator's amendment were to be included in this legislation it would not mean anything. The European Committee on Crime Problems of the Council of Europe deals with problems on crime and has no power to take an appeal and override a country's decision on implementing the convention. The insertion of an appeal system fundamentally changes the convention. I cannot change the convention. The Senator is suggesting——

Mr. Daly

I have submitted my proposal in writing.

Mrs. Owen

The amendment states: "Where a sentencing state does not agree to the transfer the Minister may appeal the refusal to [that] committee ...under Article 23..." What does the committee do?

Mr. Daly

It has a function.

Mrs. Owen

It only has a function in an informal way to reach friendly agreements.

Mr. Daly

It is not a question of formal or informal; it is in writing.

Mrs. Owen

It does not have any power to listen to that appeal and to override a decision made by one of the countries to the convention.

Mr. Daly

The Minister is making this up. It is written into the convention.

Mrs. Owen

It says that they have the right to do whatever is necessary to facilitate a friendly settlement.

Mr. Daly

That is all we are asking.

Mrs. Owen

No. The Senator is asking that a refusal may be appealed. He does not go on to make clear what should done with such an appeal. I assume he means that the appeal may override the decision.

Miss Ormonde

No.

Mrs. Owen

What is the point of having an appeal?

Mr. Daly

To facilitate a settlement.

Mrs Owen

This can be done in any event.

Mr. Daly

It cannot. Provision for this is not written in.

Mrs. Owen

It would be one thing if the purpose of the Senator's amendment was to put article 23 of the convention into the legislation. However, the Senator is attempting to create an appeal mechanism. I cannot implement such a mechanism. The Senator is trying to ensure that article 23 is used. However, his amendment goes beyond this by using the words "...may appeal the refusal...". If the amendment was worded: "The Minister may request the European Committee on Crime Problems of the Council of Europe to examine the reasons for a refusal...", it——

Mr. Daly

Would the Minister accept an amended amendment on that basis?

Mrs. Owen

The Senator is seeking to put article 23 of the convention into the legislation.

Mr. Daly

Would the Minister accept the wording she has suggested?

Mrs. Owen

I do not like accepting an amendment that has been changed on the floor of the House without it being considered by the draftsman. We want to try and finish the Bill today if possible. I will deal with the country about which the Senator is especially worried with diligence and I will also deal with article 23. We are obliged under the convention to do so, even if it was not included in legislation. The proposed legislation is merely giving effect to the convention. Every article in the convention must be implemented. The Senator is trying to put article 23 into the legislation; it is already included in that I will implement the article. I have no choice on this matter, nor does any other country to the convention. They must implement article 23. It means that I can ask the committee to attempt to settle an issue on a friendly agreement basis. Those with whom I seek agreement must also attend the committee as they are obliged to do so by the convention.

Mrs. Taylor-Quinn

Senator Daly is being deliberately obtuse on this section. To include the amendment in the Bill would have no affect on the broader international fora. The convention is an international agreement. Acceptance of an amendment such as this does not in any way compel the other signatories to the convention to comply with the section of an Act of a national Parliament. It would, therefore, be useless to incorporate the amendment. It would not improve the situation with regard to prisoners. The Bill agrees to the terms of the convention and article 23 of the convention is, following enactment of the Bill, agreed to by the Government and the country as a signatory to the convention. Senator Daly understands this, but he has chosen to make a political issue of this matter.

Mr. Daly

That is outrageous.

Acting Chairman

Senator Daly, you can indicate and speak after Senator Taylor-Quinn.

Mrs. Taylor-Quinn

I have every confidence that the Minister will take up whatever problems there are with other countries under article 23 of the convention and that she will use the terms of the article to its fullest in this respect. The specific difficulties that may arise relate to the 35 paramilitary prisoners in England. The Minister is aware of this and she will raise the matter. There are prisoners in this group who are from every constituency across the country. For example, Joe Connell and Harry Duggan are from County Clare and have been in prison at this stage for over 20 years.

Acting Chairman

Senator, this is the speech you did not make on Second Stage.

Mrs. Taylor-Quinn

The Minister will use article 23 of the convention to the fullest extent.

Acting Chairman

I call on Senator Ormonde and would remind the Senator that the Minister is under time pressure.

Miss Ormonde

I appreciate that and thank the Minister for giving us such extended time. There is concern that, although we are aware of it, article 23 to the convention is not widely known. The convention provides a mechanism we can use. It is for the Minister to make it clear that in the implementation of any decision we can, if necessary, refer to the terms of the convention.

Mrs. Owen

This will be in the information document.

Mr. Daly

I was not briefed by anybody on this matter and I did not have the opportunity to speak to Deputy O'Donoghue. It is clear that in cases where Ministers refuse to provide an explanation of a decision or refuse a favourable decision, it would not be possible under the terms of the proposed legislation to get a third party to adjudicate. I accept the Minister's assurances, not those made by Senator Taylor-Quinn.

Acting Chairman

Is the amendment being pressed?

Mr. Daly

I will withdraw the amendment on the basis of the assurances given by the Minister.

Amendment, by leave, withdrawn.

Section 6 agreed to.

Sections 7 to 13, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Justice (Mrs. Owen)

I thank Senators because it has been a good day's work to pass this legislation. It will be implemented three months after it is signed by the President.

Miss Ormonde

I thank the Minister for helping us to speedily process this legislation. We dealt with it using the extension of time. It is good legislation, all it needs is to be monitored carefully.

Dr. Henry

I congratulate the Minister for bringing forward the Bill so rapidly and thank her for discussing it so openly and at such length with us.

Ms Honan

I congratulate the Minister for being willing to listen to what we had to say and to reassure us as to our concerns.

Mr. Enright

I join with other Members in thanking the Minister for bringing the Bill before both Houses and for her courtesy this morning. In her Second Stage speech in the Dáil she said she had an open mind on amendments. She showed that by accepting some amendments and this is much improved legislation as a result of the debate in the Lower House. It is an important Bill and the Minister, her officials and those mentioned earlier deserve our warmest thanks.

Question put and agreed to.