Amendments Nos. 7, 10 and 11 are related to amendment No. 5 and all may be taken together. Is that agreed? Agreed.
SECTION 2.
I move amendment No. 5:
In page 4, subsection (3), to delete lines 20 to 22 and substitute the following:
"(3) Subject to subsection (4) of this section, the Minister shall grant an application under subsection (1) of this section if the Minister is satisfied that the following requirements have been fulfilled, save only where there are substantial grounds for believing that the sentenced person concerned may be in danger of being subjected to torture, inhumane or degrading treatment if transferred, or where the Minister is otherwise satisfied that there are good and substantial reasons for believing that it would not be in the interests of justice or the welfare of the sentenced person to grant such an application:".
Section 2 deals with the application of a prisoner for a transfer out of this State to another. The power of the Minister is entirely discretionary. It is a matter for the Minister to decide whether she will or will not accede to a request from a prisoner in the State for a transfer out of this jurisdiction into their own.
My amendment removes the discretion from the Minister and places a legislative or statutory imperative to grant the application subject to certain conditions. I accept the convention does not give sentenced persons a right to transfer to their countries of origin and it merely facilitates that transfer on request and both states must agree. However, Ireland can unilaterally legislate to give a right to a foreign national who is imprisoned here to transfer to his or her own country. That would be contingent on the person's home country agreeing so the principle of consent would not be removed from the equation. Accordingly and in those circumstances the amendment as proposed is within the terms of the convention.
This provision would impose upon other states where Irish prisoners are held a certain moral authority in that it would exercise moral pressure on other convention states to adopt the same attitude to Irish nationals held on their territory. The statutory imperative is required because some prisoners might find themselves prejudiced in that the Minister might wish to receive a citizen who is an Irish national; the individual might wish to avail of the provisions of the Bill, but the sentancing state, for reasons of its own, would refuse.
I accept this State cannot legislate for what happens in another State but it can clearly legislate for what happens in its own boundaries. That is why I propose a statutory imperative on the Minister to accede to the request of a foreign national in this State seeking a transfer to another state. While it would be contingent on the consent of the receiving state, I am conscious that if this provision is accepted, while it would not be the duty of a sentencing state holding an Irish national to accede to the request, nonetheless the existence of this provison here in relation to foreign nationals would bring a certain moral authority to bear.
The principle of consent is extant in the amendment. I ask the Minister to accept it.
Deputy O'Donoghue accepted that if I was to accept his amendment it would substantially remove the discretion available under the convention to refuse to consent to the transfer of a prisoner from this jurisdiction. The central feature or cornerstone of the convention is that all three parties involved in a transfer — the administering state, the sentencing state and the prisoner — have an absolute discretion as to whether to consent to a transfer. That is central to the convention.
Generally, I would be very anxious to facilitate the transfer of a foreign national serving a sentence here back to his own country. Humanitarian considerations central to the convention apply in the same way as they would apply to Irish prisoners who would want to be nearer their families to allow their families to visit them. The same applies to any other national serving a sentence here: their families are equally deprived of visits to them. I am anxious to facilitate transfers.
I would also be anxious to do it as it would release some of the pressure on prison accommodation here and would allow me to have spaces available for the inward flow of prisoners here. Any Minister would apply his or her discretion to an application from a non-national seeking a transfer.
However, I must maintain the discretion because we have no experience of operating in this area. This point is probably not as easily argued if one is talking about a prisoner leaving this jurisdiction and going away, but I must maintain the inherent discretion built into this convention, which is that all three parties — the prisoner, the sentencing state and the receiving state — must be in agreement as to whether the transfer should take place.
There could be other circumstances, but I cannot deal with them in depth at this point because we have no experience in this area. For example, it could be concluded that other considerations outweigh the humanitarian considerations which might be involved in transferring somebody, depending on the charge and the reason why the person might be in prison here. There may be a time when it might be the right thing to refuse a prisoner a transfer from this jurisdiction.
The same questions will be asked by other jurisdictions about Irish prisoners who seek to return to Ireland. They may decide it is better for the prisoners to serve their sentences in the country in which they were sentenced. This could be for all types of reasons, for example, political reasons or because their crime was of a particular nature in which people suffered grievously. They may wish that person to serve their sentence in the country in which they committed the crime and not somewhere where its heinous nature might be forgotten.
I ask Deputy O'Donoghue not to press the amendment. I believe it is right for me to maintain the discretion. We will fulfil the cornerstone of this convention by maintaining the discretion to enable a decision to be made on each application. However, I will be disposed towards allowing anybody serving a sentence in Ireland to leave this jurisdiction and go back to their own country for the reasons I outlined.
The Minister will not be the Minister forever.
I may not be Minister forever, but I will be Minister in this particular area for a sufficient length of time to enable us to consider how this legislation is working after its passage. Amendment No. 25 will allow us to review the operation of this legislation.
The people who drew up this convention did so on the basis that they wanted to leave open this type of discretion. If we go along the lines suggested by Deputy O'Donoghue, the only possibility is that people will suffer as a result of making something mandatory. The Deputy said it would ensure a moral onus but, on the other hand, if a country wanted to send a prisoner back to Ireland from their jurisdiction that we did not particularly want to take, would it put any extra pressure on us if we knew it was mandatory on the other country to force us to accept the person back?
I think we would still want the freedom to exercise discretion as to whether that prisoner should be allowed back. I am sorry but I cannot accept the amendment. It may be decided in a year or two years that this type of mandatory discretion or its removal is the right way to go if the legislation is not working, if the spirit of the convention is not being fulfilled or too many refusals are being made because too many countries are trying to jeopardise or thwart the implementation of the convention.
I am sorry the Minister cannot accept the amendment. It is within the terms of the convention and ensures that the principle of consent still exists, albeit the consent of the receiving state. However, that in itself shows that the amendment comes within the terms of the European convention. The amendment also stipulates that the Minister would retain the discretion to refuse a transfer if there was a danger of the prisoner being subjected to torture, inhumane or degrading treatment or if other charges were pending against the prisoner. The general tenor of the amendment is reasonable. It provides for a certain amount of discretion, but the Minister does not feel free to accept it. I see the logic in some of her argument, but the amendment would be preferable. However, in the circumstances, I will not press it.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 4, subsection (3) (d), line 38, after "consents" to insert "in writing".
This is a relatively minor amendment.
Deputy O'Donoghue, the Minister has indicated her willingness to accept the amendment.
Accepting the amendment involves inserting the phrase "in writing" in another section of the Bill. I will come back on Report Stage with a tidy amendment to cover both sections. However, there is no problem with the phrase "in writing".
May I explain the point of the amendment to the committee? Section 2 (3) covers criteria the Minister can use. Subsection (3) (d) states:
....that the sentenced person or, in the case where the Minister or the administering state considers it necessary because of the age or physical or mental condition of the sentenced person, the legal representative of the sentenced person or any other person considered by the Minister or the administering state to be an appropriate person for the purpose, consents to the transfer;
The amendment seeks to ensure that the individual consents in writing. This would dispel any doubt in the vast majority, if not all, cases about the adequacy of the consent. I thank the Minister for accepting the amendment.
I may have misled the Committee. Section 4 (1) (d) will also have to be amended with the same wording.
Perhaps Deputy O'Donoghue could withdraw his amendment on the basis that the Minister has accepted it in principle and will come back on Report Stage with a technical, housekeeping measure. The Minister had indicated her acceptance of the amendment. It is a further insertion for technical reasons. Perhaps the Deputy coud leave it until Report Stage?
I do not see any problem about that.
Is that agreed? Agreed.
Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 not moved.
Amendments Nos. 9 and 19 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 9:
In page 5, between lines 13 and 14, to insert the following subsections:
"(6) In deciding whether or not to grant the application under subsection (1) of this section, the Minister shall not discriminate between applicants on grounds of race, colour, ethnic identity, gender, marital status, age, religion, sexual orientation, medical condition, or political opinion.
(7) The Minister shall develop and publish criteria in accordance with which decisions whether or not to grant an application under section (1) of this section shall be made. In devising such criteria, the Minister shall have regard to such factors as the length of sentence that the sentenced person has remaining to serve, the circumstances of the sentenced person's family, and the sentenced person's health.
(8) Where the Minister refuses an application under subsection (1) of this section, the Minister shall furnish to the applicant within one month a written statement of the grounds for such refusal.
(9) An appeal against a refusal by the Minister of an application under subsection (1) of this section shall lie to the High Court.
(10) Where within the period of two months beginning on the day of receipt by the Minister of an application in writing from a sentenced person under subsection (1) of this section for transfer out of the State the Minister has omitted to grant or refuse to grant the application, a decision by the Minister to grant the application shall be regarded as having been made on the last day of the said period, and the Minister shall be under a duty to seek the agreement to transfer of the proposed administering state."
The Minister refused to allow for mandatory transfers by persons in this State to other states for the reasons she outlined. The amendment proposes five new subsections which are reasonable. In tabling the amendment I have been reasonable in accepting the Minister's view that she would not accept a mandatory or statutory imperative imposed on her in regard to the transfer or application by a person in this State for the transfer to another state.
The first part of my amendment states
In page 5, between lines 13 and 14, to insert the following subsections:
"(6) In deciding whether or not to grant the application under subsection (1) of this section, the Minister shall not discriminate between applicants on grounds of race, colour, ethnic identity, gender, marital status, age, religion, sexual orientation, medical condition, or political opinion.
It is not unreasonable to request the Minister to accept that amendment. It merely puts on a statutory footing the fact that no type of discrimination may be exercised against an applicant prisoner. In an age when we found it necessary to set up a Department of Equality and Law Reform, the kind of equality which is being sought to be achieved would be reflected by the Minister accepting this provision to ensure where would be no discrimination against a person on any of the ground specified in the amendment.
My amendment goes on to state:
(7) The Minister shall develop and publish criteria in accordance with which decisions whether or not to grant an application under section (1) of this section shall be made. In devising such criteria, the Minister shall have regard to such factors as the length of sentence that the sentenced person has remaining to serve, the circumstances of the sentenced person's family, and the sentenced person's health.
In short, this proposal tries to ensure that applications for transfer are dealt with in an open and transparent manner. Only when one has openness and transparency — these words are used a great deal nowadays — can one have accountability. Accountability cannot be established unless one is, or can be, satisfied that one knows the basis upon which the decisions were made. I strongly advocate this part of my amendment to the Minister and ask that the criteria be developed and published so that everybody will know precisely where they stand on an application of this importance.
My proposed subsection (8) states:
(8) Where the Minister refuses an application under subsection (1) of this section, the Minister shall furnish to the applicant within one month a written statement of the grounds for such refusal.
This is to facilitate and provide for transparency and, indeed, in this respect, to facilitate appeals.
My proposed subsection (9) states:
(9) An appeal against a refusal by the Minister of an application under subsection (1) of this section shall lie to the High Court.
It is necessary to insert this provision to enable a person who is dissatisfied with the Minister's decision to appeal it to a court.
My proposed subsection (10) states:
(10) Where within the period of two months beginning on the day of receipt by the Minister of an application in writing from a sentenced person under subsection (1) of this section for transfer out of the State the Minister has omitted to grant or refuse to grant the application, a decision by the Minister to grant the application shall be regarded as having been made on the last day of the said period, and the Minister shall be under a duty to seek the agreement to transfer of the proposed administering state.".
That has gone by the board by the Minister's refusal to accept a statutory imperative on her, or subsequent Ministers, to grant an application. Obviously, I will not be pushing that part of the amendment. However, the other parts of this amendment are reasonable and the Minister should accept them. I would like to hear what the Minister has to say on these proposals.
There is some merit in this amendment. I did not favour the previous Fianna Fáil amendment which sought to make mandatory the rights of transfer to be repatriated because discretion is important on these matters, as will be the discretion that will be allowed to transferring countries who are sending people back to this country. Decisions will be made in those countries which will be based on a range of criteria. There is a need to have ministerial discretion not only here but in transferring countries who are returning Irish nationals.
However, as in the exercise of any ministerial discretionary power, there needs to be some checks and balances to allow for some accountability and transparency in the exercise of that discretion. There would be a case for this and I would be grateful if the Minister would consider it before Report Stage. A part of this amendment has been negatived by the refusal of the Minister to accept a mandatory aspect on the question of rights. However, if an Irish or foreign national sentenced here and in jail applied under the new legislation and the convention and for some inexplicable reason, which would not be revealed to the person, they were turned down, they would feel a great sense of injustice. In terms of human rights and due process in the administration of this part of the justice system, it would be fair that they be given an explanation and that the criteria on which the decision was based should be transparent, be seen to be fair and not be based on any of the grounds Deputy O'Donoghue pointed out, whether it be sexual orientation, race, colour, gender or whatever.
Despite the fact that the appeal proposition to the High Court has now gone out the window because it would not be a mandatory obligation, if the decision of the Minister in her discretion to refuse the application was seen to be unfair by the person, they could, by way of judicial review, challenge the decision of the Minister. That would be the normal way to proceed rather than appeal to a court. There would certainly be a right, as in any exercise or act of the Executive, for a person to challenge that decision by way of judicial review.
There are aspects incorporated in this amendment which are in need of attention by the Minister and I would be grateful if she could come back to us with some checks and balances that would deal with the dangers inherent in any absolute discretion being given to a Minister or the Executive in this area.
I must remind Members that we agreed to adjourn at 4.30 p.m. Therefore, I will call the Minister to flag an initial response to Deputy O'Donoghue.
I appreciate we are running over time and I will keep my contribution to one minute.
Then we will not hear the Minister's response to this amendment.
Perhaps it would be better to adjourn, Chairman. I forgot that we were also dealing with amendment No. 19 which would apply precisely the same criteria to incoming prisoners. It will take a considerable period of time to discuss this.
The Members have raised interesting points. I have looked at this matter carefully and will be making my views known at the next opportunity.
I would flag one point that Members might also consider. When you talk about the Minister not discriminating between applicants on various grounds, the reality is that in any implementation of prison policy a distinction is made. It is not discriminatory but you have to make distinctions. For example, when you decide that a woman prisoner has to go into a women's prison, that is making a discrimination or a distinction about somebody on sexual grounds. You also have to decide about a very young person not being put in with older prisoners or similarly decide for those with HIV. I would aks you to reflect on that, although I know what you are trying to get at. However, you must be conscious that in implementing prison policy, even now, a distinction is always made on certain grounds.
In a way, subsections (6) and (7) are conflicting because, on the one hand, you ask that I shall not discriminate on medical conditions and, on the other, that I take into account the sentenced person's health. Those are conflicting points so perhaps you would give some thought to that. I will come back to you on that because this is a substantial amendment.
Thank you, Minister. We must adjourn to another day. The clerk will arrange a meeting as soon as possible in consultation with the convenors.
As 9 June falls on Friday it would mean that Deputies from the country would have to stay here all day. Is there any way the Estimates meeting can be arranged for a day when the Dáil is sitting?
That is not relevant to this Bill.
I have a difficulty with Thursday because questions to the Department of Justice will be taken that day.
It is. The Estimates must be completed in their entirety by 15 June, which is the following week. Next Wednesday has been agreed for the Department of Equality and Law Reform, and Members have been notified for Friday, 9 June. I would have difficulty arranging an alternative date with Members. I understand the Deputy's concern but it is important that we do not curtail Members' discussion on the Department of Justice Estimate. It is a very important day. The Minister has given us most of that day and we will have the use of the Dáil Chamber.
Would it help if we did half of it on the Friday and did not sit in the afternoon?
No.
I thank the Minister and her officials for attending.
The Select Committee adjourned at 4.35 p.m.