Prisons Bill 2006 [Seanad]: Committee Stage.

I welcome the Tánaiste and Minister for Justice, Equality and Law Reform and his officials to the meeting, the purpose of which is to discuss Committee Stage of the Prisons Bill 2006. We will adjourn at 4 p.m. We will resume for one hour at 9.30 a.m. tomorrow and again from 2 p.m. until 4 p.m. Is that agreed?

I understand the Minister of State with responsibility for children, Deputy Brian Lenihan, wishes to speak to the Fine Gael spokesman and me tomorrow afternoon regarding the proposed referendum on the rights of children. However, we can play things by ear.

We will come to some arrangement. Is the schedule for discussion agreed? Agreed.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1

In page 6, line 16, after "force" to insert "at a material time".

This is a technical amendment. I am advised that the word "force" in the definition of prison rules may cause a problem. If proceedings were taken under a ruling no longer in force, that would not be captured by the definition. That is why I am suggesting the change. I understand the Minister considers this possibility is captured by the existing wording but for the avoidance of doubt and in the interests of clarity and simplicity I suggest this amendment be made.

I have been told by the Parliamentary Counsel that this amendment is not necessary. In fact, I have been advised against it. However, my own view is that it is safer to accept the Deputy's amendment.

Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 and 4 agreed to.

The meeting will suspend for a number of minutes. Is that agreed? Agreed.

Sitting suspended at 2.43 p.m. and resumed at 2.44 p.m.
SECTION 5.

I move amendment No. 2:

In page 7, subsection (1), line 2, to delete "Government" and substitute "Oireachtas".

The amendment proposes that the consent of the Oireachtas be required for the provision of prisoner escort services.

I have looked at this amendment and I am not disposed to accept it. This is, fundamentally, a matter for the Minister and the Government. If the circumstances arose, I would not like to be prevented from entering into such an agreement, unless both Houses of the Oireachtas were in session and debated the matter. This is a contingency arrangement, as I made clear on a number of occasions. It is not the intention of the Government or the Department to invoke it. If the contingency were to materialise, it would be a matter for the Minister and the Government to move on the matter. That is sufficient.

There are advantages to having greater involvement by the Oireachatas in such decisions. The Executive will be involved because it is stated in section 5 that the Minister for Justice, Equality and Law Reform may enter into an agreement. The Minister for Finance must also be involved in this regard. In addition, the Bill states matters must proceed with the approval of the Government. The Minister for Justice, Equality and Law Reform would not enter into an agreement with the consent of the Minister for Finance unless the Government had also signalled its approval.

I will not press the amendment. I merely wished to give the Oireachtas a role. I will, perhaps, return to the issue on Report Stage.

Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.

Amendments Nos. 3 to 8, inclusive, are related and may be discussed together.

I move amendment No. 3:

In page 8, subsection (7)(a), line 12, to delete “and”.

Section 6 deals with the certification of prisoner custody officers. In other words, it indicates who is a fit and proper person to perform the duties of a prisoner custody officer. The amendments in this group are technical in nature. A suggestion was made that we should include a requirement that the Minister should not issue a certificate, unless he was satisfied that a person was of good character and capable of performing the necessary functions. Amendment No. 5 contains the additional proposal that a person should demonstrate respect for all prisoners in his or her custody.

Section 6 states a person appointed as a prisoner custody officer shall not contravene the terms of any agreement and shall comply with the provisions of the Bill. Amendment No. 6 proposes that he or she should "make all reasonable efforts to ensure the safety, security and well being of prisoners in custody". Amendment No. 7 proposes that a person selected to serve as a prisoner custody officer should "behave in a manner appropriate to his or her position". Amendment No. 8 suggests he or she should "at all times act in accordance with the law". One could easily state prisoner custody officers will behave in this way. However, I am of the view that there is a case to be made for spelling out the provisions.

I support amendment No. 5 which deals with the issue of respect for all prisoners in custody. This is an important amendment. It might not necessarily be fashionable to refer to respect for prisoners because there appears to have been a drift towards abusing people's human and civil rights. I am concerned about this drift and accept that it came about in the aftermath of some horrific incidents. All prisoners in custody should be treated with respect. Not only that, serious attempts should be made to rehabilitate them. If they have done something wrong, they should be given an opportunity — be it through drugs, education or health programmes — and encouraged to reintegrate into society. Amendment No. 5 illustrates the kind of ethos I am trying to present in respect of this issue. It is important that people outside should be aware that Members of the Houses care about the rights of prisoners and those of poorer sections of society.

On amendment No. 5, how would one gauge whether a prisoner custody officer had demonstrated respect for a prisoner? If he or she did not do so, what sanction would be imposed?

Section 6 states:

(7) It shall be a condition of a certificate that the person in respect of whom it is issued shall, in the performance of his or her functions as a prisoner custody officer---

(a) not contravene the terms of an agreement under section 5, and

(b) comply with the provisions of this Act and any prison rules relating to the treatment of prisoners in custody.

The exact equivalent of what a prison officer is required to do is being conferred on prison custody officers. There is no two-tier arrangement. We are talking about the movement of people from A to B. This legislation requires prison custody officers to treat prisoners in the same way that prison officers doing the same task are required to treat them. I do not see any need to amplify or increase those obligations, or to state them in any particular form.

I have signed off on the draft prison rules, which will be introduced when this Bill becomes law. If members of the committee are interested in the rules, which provide a comprehensive framework for the treatment of prisoners, I will be pleased to furnish them with a copy. The new prison rules will apply to prison officers and prison custody officers in exactly the same way. The same obligations in respect of duties to prisoners will apply to both classes of officer. I do not think there will be any difference.

If I were to accept these amendments, there would be no reason for me not to put in permanent statutory form similar obligations for prison officers when they bring prisoners to court appearances. I do not think I should put higher obligations on people whose work has been outsourced than on people who are working within the system.

I do not think those obligations would be higher.

They would be more explicit.

They would hardly be more explicit than the proposed new rules, which we have not seen. I imagine the new rules will involve a much longer citation than the proposal before the committee.

Yes. I would prefer to apply the ordinary rules of prison officers to prison custody officers than to put a different code in place. If lawyers could point out that the Act says one thing and the prison rules say another thing, they would ask whether there is a difference. I would prefer to have a simple and uniform set of standards applying to prisoners.

Perhaps the issue should be considered in the round. Should we be talking about a common set of rules which might include——

This Bill provides for a common set of rules, which have to comply with all prison rules relating to prisoners.

The point is that the rules will be made by the Minister rather than by the Oireachtas.

The rules are laid before the Houses of the Oireachtas. I am sorry that I do not have with me a copy of the draft rules which will come into effect. In my view, these enlightened rules constitute a very reforming measure.

That says a lot.

We understand that the Minister would consider his draft to be an enlightened measure. As Deputy Howlin said, we thought there might be some element of enlightenment in the Oireachtas as well.

We thought some further bright light could be shone on the new rules by the Members of the Oireachtas. While I felt it was worth raising this matter, I will not pursue it further.

I will circulate the draft rules to the members of the committee. I am sorry that they are not available today.

How extensive are they?

They are very extensive. They represent a new bible for the running of prisons, which are currently operating under 1948 rules which, in turn, were replications of 19th century rules. Some of the old rules referred to all sorts of classes of prisoner, including "gentle folk" who were entitled to get a naggin of wine or whatever.

Do they still get that?

Prisoners used to be allowed to bring in their own furniture.

If my amendments have done nothing else, they have provoked this enlightening and worthwhile discussion around the table. I will not press the issue.

Amendment, by leave, withdrawn.
Amendments Nos. 4 to 8, inclusive, not moved.

I move amendment No. 9:

In page 9, subsection (16), to delete lines 12 and 13 and substitute the following:

" "applicant" includes---

(a) any person who applies for a certificate under this section in a personal capacity,

(b) any person who applies for a certificate under this section for another person, and

(c) any person on whose behalf another person applies for a certificate;”.

This is a technical amendment to section 6(16), which defines an "applicant" as including "a person on whose behalf another person applies for a certificate". I have proposed this amendment, which is of a technical nature, to tease out this matter a little further.

I ask the Deputy to imagine that if we went down the road of having an outsourced prison transport service and if, for instance, Group 4 or some similar group were to apply for a licence, it would also have to apply for certification for all its individual employees. The term "applicant" is extended to cover that situation because it is considered more likely that this would be the scenario than a company applies and the individual employees send in under separate post, their applications to become officers. It is assumed that a commercial entity, if applying to run the service, would also apply on behalf of its individual proposed officers.

On that question and taking Group 4 as an example because it was referred to by the Minister, does the Minister mean there would be no individual assessment of a company's employees?

There would be. The company would have to make an application for each of its officers. The term "extended applicant" means that an applicant is applying not just for himself or herself but also on behalf of other people.

I will not press the amendment.

Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.

Amendments Nos. 10 and 11 are related and may be discussed together.

I move amendment No. 10:

In page 9, subsection (1), line 21, after "person" to insert "without delay".

Section 7 deals with the revocation. Amendment No. 10 proposes that it would happen without delay. Amendment No. 11 is a question of issues being dealt with without delay. In a situation where the matter is going to the Minister, a prison custody officer would stand suspended and would not perform the functions pending the decision. I am unsure whether it adds to the Bill or not but it seems to be an issue that should be raised.

I sympathise with this amendment and agree that there should be no delay. It would not be in the Minister's interest to have an unsuitable person doing the job. However, if for whatever reason there was a delay, I would not like to see a situation arise where the Minister could not get rid of the person because the Minister had not acted soon enough and was informed by the courts that the time for doing so had passed and that the Minister should have taken action weeks or months earlier. This is the only problem I foresee with the amendment but I will consider it between now and Report Stage. I do not want to create a trap for somebody who suddenly finds himself or herself in a position that he or she cannot deal with it at a later time.

I am happy to have the matter dealt with on that basis.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Section 7 agreed to.
SECTION 8.

Amendments Nos. 12 to 14, inclusive, are related and may be discussed together.

I move amendment No. 12:

In page 10, subsection (2), line 30, after "clothing" to insert the following:

", but may not conduct an intimate search of a prisoner".

Section 8 deals with the functions of prison custody officers and, by and large, it transfers the normal custody duties to these potentially privatised individuals. The amendment is to ensure they would not have the power to conduct intimate searches of a prisoner. The section refers to a prison custody officer not removing or requiring the removal of a prisoner's clothing, other than outer clothing, unless he or she has reasonable grounds for believing the prisoner has concealed a prohibited article beneath his or her clothing. It should be made explicit that prison custody officers would not have the power to conduct an intimate search of a prisoner in such an instance.

I am merely concerned that there would not be an excessive power for prison custody officers which might lead to abuse. It is similar to the issue specifically raised by Deputy Howlin. My amendment proposes that the section might be improved by requiring — as in amendment No. 13 — that any such search must be reported to the prison governor. It further proposes that the following should be outlined: the reasons for conducting the search; the grounds the prison custody officer had for believing the prisoner had concealed a prohibited article beneath his or her clothing; details of anything found; and any other details that the prison custody officer deemed relevant. In case we might put in place a framework that could be abused, it would be worth sending it back now, in the abstract, and reconsidering it before we commit it to legislation.

I know where the Deputies are driving. It would not normally be acceptable for a private security officer to conduct an intimate search — I accept that proposition. However, I do not want the opposite situation to arise, namely, that a privatised security officer would have every reason to believe a prisoner had a knife concealed in his or her clothing but had to sit staring at him or her wondering what to do with him or her. That would be equally difficult to deal with.

Bearing in mind that the prison rules will deal with powers of search, I propose to come back to this question to determine whether there is a need for differentiation between the rights of a prisoner custody officer and those of a prison officer in regard to such a search. It could be argued that if one suspected somebody had a knife, one could bring that person back to the prison and search him or her there. On the other hand, if the person was going to court and one had reason to believe he or she had a knife, it might not be practical to get a prison officer all the way from the prison to conduct a search in the courthouse. I have sympathy for the point that this is effectively a security officer's job.

With regard to the term "intimate search", in this context, I have no interest in allowing prisoner custody officers to conduct internal searches. However, I will have to consider the matter further before I accept the proposition that clothing should be effectively sacrosanct.

The import of the amendment is that prisoner custody officers could require clothing to be removed to ascertain whether there was a knife, or something of that nature, but they could not then take the next step, that is, to conduct a physical, intimate search of an individual.

I am sympathetic to the amendment. Can I take advice in this regard?

Certainly. Even if the Minister did not, on balance, believe he wanted to go as far as to have an absolute prohibition, as I suggest, a circumstance might arise, for example, where there was contact in the courtroom, although I presume gardaí could deal with such a case. Deputy O'Keeffe's amendment is a step back from my position, but it would be a safeguard in that this could not be seen as routine.

Between the amendments, I will consider the issue before Report Stage.

I am happy with that. What is important is that we ensure adequate powers will be available to prisoner custody officers but, at the same time, that we put in place a framework which will as far as possible ensure those powers are not abused. If the Minister will consider the various amendments in that light, we can reconsider the issue on Report Stage.

Amendment, by leave, withdrawn.
Amendment Nos. 13 and 14 not moved.
Question proposed: "That section 8 stand part of the Bill."

I am opposed to Part 2 of the Bill and intend to discuss it later. Section 8(4) states:

A prisoner custody officer shall, as respects any prisoner for whose transfer or custody he or she is responsible--

(a) prevent his or her escape from lawful custody,

(b) prevent the commission of an offence by him or her,

(c) ensure that he or she behaves in an orderly and disciplined fashion,

(d) comply with any order of a court relating to him or her, including any such order relating to his or her custody, treatment or transfer.

I have no problem with this, apart from the privatisation of the escort service.

However, there is nothing in the section to state a prisoner custody officer will have responsibility for the health and safety of a prisoner or preventing an offence being committed against the prisoner by another prisoner. Neither is there anything to state, for example, that if prisoners are being put into a prison van, a prisoner custody officer has a duty to protect them, as well as to keep them in custody. This should be provided for.

Question put and agreed to.
SECTION 9.

Amendments Nos. 15 to 18, inclusive, are related and will be discussed together.

I move amendment No. 15:

In page 11, subsection (1), line 28, to delete "information" and substitute the following:

"information, other than to a governor or a contractor,".

This amendment would make it explicit that information could not be disclosed, other than to a governor or a contractor. It may be implicit in section 9(1)(b) which will allow it if a prisoner custody officer does so for the purposes of performing his or her function. However, I am not sure if that is the case and propose the amendment as a possible improvement to the section prohibiting unauthorised disclosure of information.

The question remains as to what can be disclosed by the Minister. Perish the thought that any Minister for Justice, Equality and Law Reform would be involved in the unauthorised disclosure of information. However, given the fact that we are dealing with the issue, we should at least consider providing for what can or cannot be publicly disclosed by the Minister. The question also arises as to the circumstances in which a contractor may disclose information.

It is probably covered by section 9(1)(b) because it is difficult to imagine how a prisoner custody officer could give information to a governor or contractor which was not for the purposes of performing his or her functions. There could be others to whom the Minister would be in a position to authorise a prisoner custody officer to disclose information. I cannot imagine who they might be but there could be circumstances such as in the context of an inquiry or for statistical purposes in which the Minister would authorise a person to reveal information.

The section states: "A prisoner custody officer shall not disclose information relating to a prisoner obtained by him or her". A situation might arise in which somebody comes across information which might be useful in preventing the commission of a crime. In such circumstances does a person have to wait for the Minister's authorisation to go to the Garda?

That is a fair question and I will look at it again. Perhaps we should insert a line to allow it where it is given lawfully to a person in authority. The inspector of prisons might have an interest in the matter. The section may be overly restrictive but I want to prevent people telling stories and infringing the dignity of prisoners by setting them up for publicity.

I am in sympathy with the Minister on that point.

What does Deputy O'Keeffe mean by the reference to a prisoner's appearance at paragraph (vi) in amendment No. 16? Is it intended to prevent photographs of a prisoner being published?

Articles in tabloid newspapers have relied on information which obviously came from within prisons to demean prisoners more than they have already been.

The reference covers a multitude.

Absolutely. Are amendments Nos. 15 to 18, inclusive, withdrawn?

Amendment, by leave, withdrawn.
Amendments Nos. 16 to 18, inclusive, not moved.
Section 9 agreed to.
SECTION 10.

I move amendment No. 19:

In page 12, between lines 9 and 10, to insert the following subsection:

"(4) A report produced under this section shall be laid before the Houses of the Oireachtas not later than 31 May in each year.".

Section 10 deals with reports and the appointment by the Minister of an officer to monitor the performance of a contractor and make an annual report. Subsection (3) gives powers to such an officer. Such reports should be laid before the Oireachtas. Is it agreed that the Oireachtas should have a function in dealing with such reports? I propose that it should. That is the purpose of the amendment.

I do not want to commit myself completely to reproducing such reports. There could be security reasons they should not be released. If, for example, the inspector found that the vans being used had a particular weakness, that the modus operandi had a weakness or that a person who had criminal associations was being used, it might not be right to put the report in the public domain. Nevertheless, I will examine the matter before Report Stage. If the inspector found, for example, that the brother-in-law of a well known gangland criminal was acting as driver for a contracting company, it might be sensible to report this to the Minister but unfair for the Minister to place the observation in the public domain. Should it be widely known that this potentially totally innocent person has a potentially compromising relationship with someone else? I do not want to commit myself to complete transparency on this issue.

The Minister will appoint the officer to make the inspection and report. The matter will be entirely in-house. One might, therefore, expect that an officer appointed by the Minister would be cognisant of security considerations, particularly if he or she knew the report would be laid before the Oireachtas.

This is the great conundrum. If one knows a report will be published, what does one put in it? An officer may want the Minister to have certain information. He or she may want the information to be on the record in order that if the Minister blithely ignored it, it would be available when, eventually, someone accused the Minister of ignoring the constant warning by his official that a company was doing the wrong thing. A balance must be maintained. If I say a report is to be published as a matter of automatic presumption, I know it will be different from a report which could refer to security matters.

I will not press the issue at this stage. I hope the Minister will return to it on Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill."

I will be tabling an amendment to delete Part 2 of the Bill. I am opposed to the privatisation of the prison escort service. The explanatory memorandum states, in respect of section 42, that it is not intended to outsource prisoner escort services in the foreseeable future. This is somewhat previous. I have argued against privatisation of any part of the prison service. However, I will not delay matters because we have argued the point before.

I share the Deputy's preference for a State-run transport service and as long as it is economically viable, I am happy to proceed with it.

Question put and agreed to.
Section 11 agreed to.
SECTION 12.

I move amendment No. 20:

In page 12, subsection (3), line 21, to delete "may" and substitute "shall".

As it stands, section 12 states the procedure relating to an inquiry may be specified in prison rules. That is an enabling provision. There should be a requirement that the procedure should be specified in the prison rules. That is the import of my amendment.

We considered that issue and the view at which we arrived was that it would be unwise to prescribe a mandatory procedure in prison rules, particularly as we will be in a start-up position in respect of these inquiries. There may be matters that we might not foresee and if reference was not made to them in the prison rules, an inquiry would be completely hamstrung. It was for that reason we formed the opinion that, particularly in circumstances where a new system was being put in place, it would be unwise to state the only procedures that could be followed by an inquiry were those laid down in prison rules. Almost inevitably, one would be obliged to include in the prison rules a statement to the effect that in unforeseen circumstances a person conducting the inquiry would be obliged to use his or her common sense in accordance with the rules of natural justice.

I will reflect on what the Minister stated.

Questions as to whether we should use the words "may" or "shall" constantly arise.

More reflection.

Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.

Amendments Nos. 21 to 28, inclusive, are related and will be discussed together.

I move amendment No. 21:

In page 13, subsection (1)(d)(ii), lines 4 to 6, to delete all words from and including “visits” in line 4 down to and including “from” in line 6 and substitute the following:

"those from a doctor or other healthcare professional,".

This is a drafting amendment which clarifies that visits from health care providers will not be prohibited as a sanction or part of a sanction imposed on a prisoner under section 13 for breach of prison discipline. It addresses concerns raised in the Seanad that the current wording might appear to preclude persons visiting for the purpose of providing psychological treatment. It was not intended that a sanction prohibiting visits as provided for in section 13(1)(d)(ii) would preclude visits from medical and health care workers, be they doctors, dentists or psychologists. The wording brought forward in the amendment merely clarifies that intention.

My amendments relate to the sanctions that will be imposed and the restriction of visits. They add to the list of persons who would have an entitlement — the Minister has given himself an entitlement to send a representative to a prisoner in all circumstances — to visit a prisoner. Any public representative should have the right to visit a prisoner and not be prohibited from so doing, even if that prisoner is being reprimanded or sanctioned in some way. It is part of the oversight responsibility of the Oireachtas to have such access. It is a right of every prisoner who remains a citizen of the State to have access to his or her public representative. To seek to delimit that access would be to diminish prisoners' rights as citizens and also the right of the Oireachtas to represent or have access to any citizen.

As regards a non-Irish national, access to a diplomatic or consular officer of that person's country of nationality should be a right and not circumscribed in any way. We would expect that in other jurisdictions consular officials from an embassy of Ireland would not be restricted in any circumstances from having access to Irish citizens being held there. We should afford the same rights to citizens of other countries who are temporary or long-term residents in Irish prisons. That is the import of amendment No. 22.

Amendment No. 23 proposes to insert a reference to the United Nations Committee against Torture in section 13 of the Bill, which envisages that prisoners who are being punished will be allowed visits from representatives of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. It seems to me and my advisers that it would be appropriate to include the UN committee in this context.

During the debate in the other House, the transcript of which I have read, the Minister indicated that the UN committee does not visit prisons. Having read this section of the Bill, however, I think the committee could have an impact by being able to receive correspondence. I have proposed amendment No. 23 because it provides for an interpretation that will ensure that the sending and receiving of letters to and from the United Nations is not interfered with in any way.

Amendment No. 24 has been included on foot of the recent decision to give prisoners the right to vote. I suggest that prisoners who are being punished should continue to have the right to receive postal ballot material and send their ballot papers. We need to ensure that people cannot prohibit prisoners whose voting intentions are known from exercising their postal ballots, not that anyone would want to do such a thing. The possibility of such interference should be avoided in as clear and transparent a way as possible because it would be quite wrong.

Is the committee considering amendment No. 27 in this grouping?

Yes, it is considering amendments Nos. 27 and 28.

Amendment No. 27 proposes that "the imposition of a sanction shall not be stayed by virtue of a petition". I have been advised that the Bill, as currently drafted, does not state that a sanction can be imposed pending an appeal. I suggest, in the interests of clarity, that a sanction should be imposed unless the governor, the Minister or the appeals board directs otherwise. I am proposing that the authorities in question should have flexibility and discretion in ensuring that a sanction is imposed. Alternatively, the governor, the Minister or the appeals board can suspend a sanction pending the outcome of an appeal if they, as the appropriate authorities, choose to do so.

Amendment No. 28 proposes that a prisoner on whom a sanction has been imposed can appeal it by means of petition "within 7 days of a decision of an Appeal Tribunal affirming the sanction so imposed".

That amendment is to a separate section of the Bill.

Are we taking these amendments together?

Amendment No. 28 is being taken in this group because it is related to the other amendments.

I bow to Chair's decision that they are linked. It is a broad linkage. We are trying to be comprehensive. It has been suggested to me that the provisions for making petitions to the Minister are somewhat flawed because they cannot operate following the exhaustion of the appeals process. My advice is based on a reading of the legislation that interprets it as plain English. This amendment would clarify the matter while meeting the intentions of the Minister.

Deputy Howlin and I are co-sponsors of amendment No. 23. I support what the Deputy said about the amendment. Amendments Nos. 25 and 26, in my name, are largely of a technical nature. I have proposed them for the consideration of the Parliamentary Counsel not as a point of principle, but because they may represent improvements on the present drafting.

I am sympathetic to amendment No. 22. While I am also sympathetic to amendment No. 23, I should mention that the United Nations Committee against Torture does not carry out periodic visits to institutions. I take the point that the UN committee might want to communicate with prisoners. I will ask the Parliamentary Counsel to examine those amendments.

I agree with the principle of amendment No. 24. It is obvious that one should not sanction somebody by stopping him or her from voting. I do not think it is necessary to provide for a longer section 13(1)(e), as proposed in amendment No. 25, in the name of Deputy O’Keeffe. The words “from public funds” ensure that this section of the Bill refers to moneys paid to the prisoner, rather than private sums of money which are the property of the prisoner. I do not wish to become involved in the minimum wage Act. I am advised that amendment No. 26 would create a grammatical infelicity if I accepted it.

But, are they happy?

I will look at amendment No. 27. I am not in principle opposed to the amendment if there can be a power on the part of the appellate or petitioned body to provide a stay.

I will examine amendment No. 28. It was not really my intention to make the Minister the court of final appeal after an appeal. I would be reluctant to go down that road because it will produce a large amount of paperwork. If one is to have a conclusive appeal, then there must be some finality. There are people with a lot of time on their hands who might write letters to the Minister every time they lose an appeal and this results in the opening of a new file in the Department.

Will the Minister agree to any of these amendments without reference to the Parliamentary Counsel?

With regard to amendment No. 24, the Department of the Environment, Heritage and Local Government wishes to study any proposal. I accept the principle of the amendment.

Is amendment No. 22 moved?

Amendment No. 22 is agreed in principle but I will resubmit it and the Minister might have a look at inserting his own wording.

I suggest the Deputy liaise with the Department so that he has the right wording in the new amendment.

There is always a view that Departments like to put in their own words.

I do not subscribe to that view. If the wording is perfect I will advise acceptance of the amendment.

I might change the term "public representative" to "Member of the Oireachtas", in order to confine it somewhat.

Amendment No. 21 agreed to.
Amendment No. 22 not moved.

I move amendment No. 23:

In page 13, subsection (1)(d)(ii), line 10, after “Commission “to insert”, United Nations Committee against Torture”.

I am agreeable to amendment No. 23 in principle because it is connected to amendment No. 24.

It is a very neat and simple sentence. Is the amendment accepted?

I am not too sure of the wording.

Amendment, by leave, withdrawn.

Amendment No. 24 is consequent on amendment No. 23.

I move amendment No. 24:

In page 13, subsection (1)(d)(iii), line 14, after “(ii))” to insert the following:

"or sending or receiving postal ballot material".

What are the Minister's plans with regard to this amendment and the Department of the Environment, Heritage and Local Government?

With regard to the voting papers, I wish to consult that Department about how it will be done. The Department of the Environment, Heritage and Local Government proposed wording referring to any document relating to the registration of electors, including entry in the postal voters' list or to voting at an election or referendum.

Will the Minister submit that wording?

In that case I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 25 to 27, inclusive, not moved.
Section 13, as amended, agreed to.
Amendment No. 28 not moved.
Section 14 agreed to.
SECTION 15.

Amendments Nos. 29 to 33, inclusive, are related and may be discussed together.

I move amendment No. 29:

In page 15, subsection (1), line 6, to delete "notify the governor of his or her intention to".

These amendments relate to the appeal against forfeiture of remission and a portion of sentence by a prisoner. It is a suggested redrafting and rejigging of the way it is framed. There is the issue of whether the prisoner should be entitled to appeal directly to the appeals tribunal. The reframing will provide for this with what amounts to a direct appeal to the appeals tribunal. It is more a technical reframing of the section. I put it forward for consideration.

I see where the Deputy is driving. However, it is preferable that the governor is the conduit for the appeal because, first, it puts him or her on notice and, second, he or she is then under an obligation under the next section to refer the matter to the tribunal. I am worried that if one provides for a parallel process of appeal, some will say: "Well, I asked my brother to send the letter for me. I do not know why it did not get there." Also, the appeals tribunal would need an outside address to which people could go. It would become complicated. From a practical perspective, I would prefer to have it in its current form. I do not want to have people claiming that they appealed but the application was lost in the post.

The issue is technical. I will not press the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 30 to 33, inclusive, not moved.
Section 15 agreed to.
SECTION 16.

Amendments Nos. 34 and 35 are related and may be discussed together.

I move amendment No. 34:

In page 15, lines 41 to 43, to delete subsection (3) and substitute the following:

"(3) The Minister may appoint a person who is—

(a) a practising barrister or solicitor of not less than 7 years’ standing, or

(b) in the Minister’s opinion, suitably qualified for the position through that person’s—

(i) professional or academic experience,

(ii) substantial experience of the prison system, or

(iii) relevant international experience of penal systems, to be a member of and constitute an Appeal Tribunal.".

We are discussing the establishment of an appeals tribunal to deal with prisoner appeals. I support the idea of such a tribunal being independent in the performance of its functions. Subsection (3), as currently framed, provides for the membership of the appeals tribunal to be a practising barrister or solicitor of not less than seven years' standing. My proposal aims to broaden the pool from which the appeals tribunal should be established. I see no reason a member of the appeals tribunal has to be one of our colleagues in the legal profession. There could be others who are eminently qualified for the position through their professional or academic experience, substantial experience of the prison system — I hope not as a prisoner — or relevant experience of penal systems generally, here or internationally. I am not turning against the profession of which I have been a member for many years but I do not see why we should automatically reach for a member of the legal profession when establishing tribunals of this nature. It is not that there will be any great abstruse points of law to be decided. We should broaden the pool and provide for the appointment of persons who, while they may be barristers or solicitors, may also be from outside those professions and could bring other expertise to such a tribunal.

I support the suggestion. We often take the normal suspects down from the shelf. It should be open to persons who do not fit into these neat categories of legal training but who might be perfectly suited to the task. That option should be available to the Minister.

Perhaps the requirement could be seven years' experience as a justice spokesperson in opposition.

That sounds like a good qualification.

The Deputy has another five years to go.

This is my second term. I was sentenced again for bad behaviour.

I am not an old boys' network kind of person. However, on this occasion it is necessary to appoint people with legal training. Case law of the European Court of Human Rights and legal opinions obtained by the Office of the Attorney General point to the possibility that imposing loss of remission as a sanction might be regarded as effectively imposing an additional sentence of imprisonment, requiring the safeguards associated with a criminal trial. Against this background we are endeavouring to provide in the Bill a relatively uncomplicated disciplinary procedure while allowing cases where loss of remission is imposed to be appealed to an independent, legally qualified person who will deal with it in a quasi-judicial manner. It is important that a member of the tribunal would have extensive legal experience and, as an appeal tribunal is a quasi-judicial authority, it is not appropriate that a person with no legal background should take on the role.

I am preparing for the judicial reviews which will be required where procedures have not been correctly followed. Barristers and solicitors are not the only people with common sense, humanity or the capacity to make important decisions.

What a relief.

In the case of an appeal, which could become the subject of a judicial review were it to be conducted incorrectly, it would be a mistake to appoint unqualified people who did not know the law or have an intuitive grasp of whether a submission made to them by a solicitor was right or wrong. Legal aid is allowed and somebody without legal training should not have to listen to lawyers bully him or her.

There are a variety of procedures, such as those in the area of labour law, wherein appellants are represented by counsel or solicitors and the decision-making authority has no legal training at all.

I appreciate that.

I do not accept that people with legal training do not make mistakes as to procedure, as the Minister suggests. Members of the Oireachtas follow law rather well and can read statute law better than many solicitors who have, for example, practised conveyancing for many years. The Minister's proposal is very narrow and old-fashioned.

The Minister said the provision was for an appeals board to potentially impose new sentences. Under our Constitution such actions can only be taken by a court.

It does not quite do that. The effect of the decision is to restrict somebody's liberty for a considerable period of time, as is the governor's decision in the first instance.

Does one have to be a barrister or solicitor of seven years' standing to be a governor?

This is an appeal by way of rehearing, not a judicial review.

It is the governor who makes the primary decision to impose loss of remission. Should the Minister's argument not similarly apply to the primary decision?

First, the governor must be in charge of his or her prison and must make reasonably quick decisions. Governors are generally loth to invoke the power to impose loss of remission. They will deprive prisoners of privileges, transfer them to another prison or otherwise confine them but, in my time as Minister, I have not come across somebody forfeiting remission. It may happen but is very rare. Even where it is imposed it is the habit of governors to reinstate it before the end of the sentence, if they can do so. They are not comfortable with interfering with statutory remission.

Is it not a bit pointless, then?

They are probably constrained at the moment by the European Court of Human Rights and feel they will end up in the Four Courts if they do so. I am trying to make it more practicable. I am not suggesting that every governor should be legally qualified. However, a governor is in a full-time position where he or she would have the time to acquaint himself or herself with the relevant case law and could receive guidance, from time to time, on what the case law does and does not permit. I am not keen on bringing in people who are merely "decent skins" to act as jurors rather than quasi judges. The fact that someone knows how the prison system works is not sufficient. For example, it was suggested on a previous occasion that former governors might be an eligible category. I do not believe they would be sufficiently independent, nor do I believe former prison chaplains should be in this category. The person concerned should be taken from outside the system and should approach the matters concerned in a clinical way. Relatively few of these people will be appointed. If they get it wrong we might have an accumulation of judicial reviews piling up because the law regarding hearsay, or whatever, was misunderstood.

We will be providing for legal aid for prisoners. It would be slightly strange if a prisoner could, in certain circumstances in a serious case, get a solicitor to act for him or her, who would know more law than the person to whom he or she was making submissions.

That situation pertains in other instances.

The chairman of the Employment Appeals Tribunal, for example, is always a lawyer of, I believe, the same qualifications we are dealing with here. The tribunal also has two lay members, who are employer and union representatives. That is not the case in the Labour Relations Commission and I do not believe it is the case in the Equality Tribunal. It is the case in the Employment Appeals Tribunal and, by and large, it works out well to have a lawyer present.

Is it intended that the tribunal would sit as a sole member?

I am not convinced by the Minister. Part of his thinking relates to a process with which I am not entirely happy, that is, that the tribunal would deal with matters such as loss of remission. Remission should be earned by prisoners. The finding should be that a prisoner has not earned remission rather than that his or her remission is to be taken away.

While I have considerable sympathy for that point of view, for a prison system to be workable there must be some incentive to go with the flow. If everyone were free to be obstructive and unco-operative the prison system would grind to a halt. There must be a substantial incentive. In the UK prisoners are granted remission of one third of their sentences. The corresponding figure in Ireland is one quarter.

Where is the incentive when the courts have regard to remission when fixing the original tariff? When the discount is automatic where is the incentive?

Deputy O'Keeffe's proposal, with which I have an emotional sympathy, is that it would be better if there was no automatic remission but that it had to be earned by rehabilitative activity and good behaviour, in a positive sense rather than by merely abstaining from bad behaviour.

By, for example, requiring a sex offender to undergo therapy.

That is provided for in the Criminal Justice Act. There is a power to suspend portions of sentences for that purpose.

The prison system depends on the carrot and stick approach. If a person obeys the rules, there is, as of right, an incentive in terms of remission. If we were to go down the road of allowing people to earn such a remission, it would become extremely subjective. If that were to happen, matters would become complicated and rows would break out as to whether Governor O'Keeffe took the same attitude to something as Governor McDowell and whether the former granted remission in particular circumstances. There is an issue of practicality at the centre of this matter. Will the system, if it is merit based and focuses on people's earning remission, collapse or should the existing model, under which once people play ball, remission is theirs as of right, remain in place? It is purely a matter of practicality. Deputy O'Keeffe will recall that a former leader of his party stated "That is all right in practice but will it work out in theory?"

I am informed that the statement in question is apocryphal. I am not attempting to play the hard man as far as prisoners are concerned. Under the system I advocate, prisoners would obtain remission in sentences but they would be obliged to earn it. This would offer a carrot from the point of view of their engaging in good conduct, in respect of which provision is made. However, it would also be very much offered from the point of view of encouraging prisoners to participate in rehabilitative programmes, etc. I would like this area to be explored to a much greater degree, particularly in the context of any educational facilities and rehabilitation courses that might be made available.

My views on this matter are similar to those expressed by Deputy Howlin in respect of sex offenders. I understand sex offenders were housed in one of the prisons in the Curragh that was closed and that rehabilitation courses were made available to these individuals. I do not know whether that is correct but I was advised that this was the position. I also understand that those to whom I refer did not bother to take part in the rehabilitation programme because they were not being offered anything additional to what they would receive.

The Deputy is correct in that regard. The Criminal Justice Act 2006 provides that a court can make it a term of partly suspending a sentence that a person must agree to undertake, in respect of drug or substance abuse or a sexual offence, a course of rehabilitation or treatment.

That would not cover the matter about which I am concerned. A judge would be obliged to make the provision to which the Minister refers at the time of sentencing. I am referring to educational, rehabilitative or other courses that might be developed. Prison governors might offer places on these courses to prisoners and make it clear that special arrangements might apply in respect of their sentences as a result of their taking part.

I have sympathy with the Deputy in respect of that matter. However, he must appreciate that a question of practicality arises. For example, the governor of a particular institution might state anyone who completes the computer driving licence course will be entitled to one month extra off his or her sentence. An argument might then arise as to whether a prisoner was messing during his or her computer classes. In such circumstances we would enter into the realm of complexity. When an issue of complexity arises, those in prison have nothing better to do than to mount a challenge. The simpler the rules, the easier it is to run a prison. I accept that this sounds slightly crass but it is true. If merit-based, subjective criteria are introduced in respect of remission, the system will become increasingly complex and be bogged down by arguments.

The Minister and I will be obliged to agree to differ. Therefore, I will not withdraw the amendment.

I should draw the committee's attention to section 13(5) which states:

The governor may restore all or any part of any remission of portion of a sentence forfeited by a prisoner under this section if--

(a) he or she considers that its restoration is justified by the prisoner’s good behaviour over a period of time, or

(b) the prisoner has, in the opinion of the governor, performed an exceptionally meritorious act.

There is an element of——

It is a backdoor way of doing it.

Amendment put and declared lost.

I move amendment No. 35:

In page 16, subsection (7), line 14, to delete "may" and substitute the following:

"shall publish the reasons for its decisions, but may otherwise".

We have not discussed this amendment, which is of a technical nature, to any great degree. It relates to publication of the appeals tribunal's decisions.

This amendment is supposed to have been discussed with amendment No. 34.

I will leave it therefore.

Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."

Does Part 4 of the Bill represent a significant departure from the current planning process? Will its provisions be in addition to the current provisions?

A completely new structure is being put in place.

It is brand new. Part 9 of the Planning and Development Regulations permits the Minister for Justice, Equality and Law Reform to build a prison virtually anywhere he or she likes in the country, other than in the vicinity of national monuments, as long as he or she consults the local authority. With the exception I have mentioned, there is practically nothing one cannot do under the current law if one wants to do so.

It does not provide for consultation.

When I examined Part 9, I came to the view that such a substantial scheme required some protections for members of the public. I considered two issues — whether to normalise the planning requirements for the building of prisons and bring them into the general run of the planning Acts, and whether to provide for a separate arrangement. The difficulty with the planning Acts is that the county development plan for Fingal, for example, would not refer to providing a location for a prison if the local authority were asked by the Minister for Justice, Equality and Law Reform to do so. Such a provision would not be written into any county development plan.

I would say County Leitrim would like to have a prison.

Some parts of the country welcome prisons. Deputy O'Keeffe is aware that a proposal was welcomed in his part of the world. They are not welcomed in other areas.

The Minister was directed out to Spike Island.

There is a need, under EU law, for a process that takes environmental impact into account. Developments in EU law would have forced me to amend Part 9. I would have had to use one of two processes to meet environmental requirements. I would have had to ask an independent body such as An Bord Pleanála to make a decision on the issue, or I would have had to refer it to the Legislature. EU law permits two approaches, one of which is legislative. If the French National Assembly decides to develop a TGV from Paris to Marseille along a certain route, it will be in compliance with EU law as long as it provides for an environmental impact study. I am strongly of the view that this country should provide for something like the Railway Acts of the 19th century to facilitate the building of motorways. We should not go through a quasi-planning process — we should a provide for a statutory scheme with the authority of the Oireachtas to get things done much faster. One will encounter difficulties, regardless of the option one chooses. We cannot tolerate circumstances in which a prison is needed but cannot be built because everybody objects to its location. Section 17 of the Bill proposes a system, whereby the Minister proposes a scheme, an environmental impact assessment is made, the public is given notice of the proposal and a rapporteur reports to the Houses of the Oireachtas on its environmental impact. The scheme can be amended in light of the report, or not as the case may be. Under section 26, if the Minister decides to proceed with a development, resolutions of both Houses must be passed to approve the development. It is much like the old restrictive practices code. The groceries order was made by the Minister for Enterprise, Trade and Employment under the Restrictive Practices Acts but the law provided that when the order was made by the Minister, it had to be confirmed by a separate Act of Parliament. A short confirmatory Act was needed to make it part of the law of the land. This, when done, complies with European law. That is the route that was taken.

Last year the Oireachtas passed the Planning and Development (Strategic Infrastructure) Act which, as I understood at the time, provided for the fast-tracking in the national interest of strategic infrastructural developments and established after much consideration a process for seeking the necessary permission to enable that to happen. Why would a prison not fit into the same category? Why is a prison not regarded as a strategic infrastructural development? Why did the Minister not cause prisons to be included in the Act or why is he not seeking to amend it to include them?

I have a jaundiced view. The Minister is facing great difficulty in that his current prison plans would not survive a challenge in Europe. I would welcome a more transparent mechanism. The rapporteur will report to the Minister on these proposals. It is the Minister, not the Oireachtas, who may either accept, reject or amend them. From my reading of section 26, I understand a simple resolution will be placed before the Oireachtas and decided yea or nay. Will Part 4 of the Bill apply to the development at Thornton Hall?

It will, yes.

The Minister will appoint a rapporteur.

I will go through all of the detail with regard to the development at Thornton Hall. It is not just a matter of a vote in both Houses of the Oireachtas; it is dealt with under section 26(3), by way of a confirmatory Act of the Oireachtas. If somebody claimed it was unconstitutional——

What is a confirmatory Act?

A statute. The groceries order was made by the then Minister but having made it, he then introduced a confirmatory Act stating it should have the effect of law. Deputy O'Keeffe asked why the Government did not ask An Bord Pleanála to act as the determinant body in these cases. I do not have CPO powers in acquiring land for prisons.

The Minister has €30 million to throw away.

We will not go down that road again. I do not have CPO powers. The Department contemplated whether I should simply give the Minister such a power as part of this legislation. However, even CPOs eventually end up before An Bord Pleanála. Unlike the owner of the land in Fermoy — the Army, or the farmer in Thornton HalI, it is a different situation to knock on somebody's door and say, "I have been looking around from a helicopter and your farm is it". There would not be political agreement in a situation where I designated a big section of a county to be used to build a prison and a family was to be evicted. It would be regarded as very harsh to say to somebody that I was taking his or her land to build a prison.

In the absence of CPO powers, I would have to own the land before I went to An Bord Pleanála. If I did not have a CPO power, it would be absurd to have a hearing while I did not own the land. If I bought the land and then said, "Oh dear, it is no good", that would not be a good position for a Minister to be in, particularly if I had paid top dollar for the land.

The Minister would be looking for a single farm payment from it.

Is that not the potential situation? The Minister has already acquired the land for a prison in north Dublin. He paid good taxpayers' money for it and is going through a process which, at least notionally, the Oireachtas could reject.

That is true.

What is the difference?

The Oireachtas can refuse to vote moneys for any project if it so decides.

The Minister would then be left with a very expensive farm.

That is theoretically possible, although we will not go into the merits of the argument now. I am making the point that in future the situation should be — this will apply to Thornton Hall——

What is the timeframe for Thornton Hall?

I hope, when this Bill becomes law, to approve a tenderer in the near future. A process in this regard is already under way. That tenderer must put together a public private partnership project——

Does the Minister mean a builder?

Yes, a consortium. I must then——

One or more than one?

I must then go through this procedure with the consortium's plans.

Is the Minister referring to a preferred tenderer?

There will be a preferred tenderer. As I understand it, a selection process is taking place as we speak. A preferred tenderer will emerge from that process. It will have its PPP project. I will then have to go through all of the EIS process with it.

How long will that take?

It should not take too long. If this Bill is passed into law, the tenderer should be selected in the next month and the whole statutory process should happen this year. Whoever is Minister for Justice, Equality and Law Reform will be in a position to avail of Part 4.

Question put and agreed to.

I must bring a typographical error to the attention of members. With regard to amendment No. 21, which was in the name of the Minister and which was agreed, the lead-in should read: "to delete all words from and including "visits" where it secondly occurs". Is that agreed? Agreed.

Progress reported; Committee to sit again.
The select committee adjourned at 4.05 p.m. until 9.30 a.m. on Wednesday, 28 February 2007.