I have been giving some thought to this amendment since we began discussion on it last week.
Our Constitution prevents me, or anybody else, from acting in a discriminatory fashion. My difficulty in dealing with the transfer of prisoners is that while we must ensure that a Minister, prison governor or anybody else dealing with prisoners does not act in a discriminatory manner, nonetheless they must draw distinctions. They must have the freedom to decide, for example, that a woman does not transfer to a male prison and vice versa. They make a distinction which is, in the language of some people, a discrimination. However, a distinction must be made between a man and a woman. They must also have the freedom to make a distinction between somebody who is, say, HIV positive and somebody who is healthy. That again, in some people’s language, is a discrimination. I see it as a practical application of how one operates a system.
That is the one difficulty I have with that subsection which states that the Minister shall not discriminate on the basis of race, colour, ethnic identity, etc. I cannot discriminate on a number of those matters anyway, but the same does not apply to matters such as medical conditions, age and gender. It could be argued, however, that if a political prisoner applied to be transferred here — although people who have been sentenced in the UK for terrorist offences are not called political prisoners — I may have to decide that because of the nature of the offence, they should be held in a secure prison such as Portlaoise. I would be making a distinction between that prisoner and a person wanting to be transferred here who was accused, say, of a road traffic offence and whom I would not be considering sending to the secure wing of Portlaoise prison.
The practical day to day operation of prisons involves Ministers, governors and prison officers making distinctions, not descriminating, between people, That is why I have a difficulty in the way this amendment is worded. It may be possible for me to table an amendment on Report Stage that does not tie the hands of the Minister to administer this based on making distinctions but which will ensure that people will not be discriminated against, although our Constitution protects them anyway. I acknowledge what the Members are trying to do here and I do not want to give the impression that this Bill should be operated in a discriminatory way, but it must be operated by way of making distinctions and I hope Members will recognise that particular difficulty.
With regard to the second part of the amendment on developing and publishing criteria, under article 3 of the convention the criteria for transfer are laid down and in ratifying the convention we are bound by those criteria. My amendment No. 25, on which I hope to have the support of the House, calls for an annual report to be made by the Minister to each House of the Oireachtas outlining the operation of the legislation. It must be remembered that we are dealing with an area of which we do not have any experience and few other countries have experience from which we can learn. Producing an annual report would allow us to examine the operation of the legislation in the previous year and identify any gaps in regard to prisoners getting information. It could be said that we should include parts of the convention in the legislation, but I would remind Deputies that this is enabling legislation and, having ratified the convention, we are bound by it. We are not required to write every term of the convention into domestic legislation. That is not done in other countries either, but we do have the right to expand it where we believe that is necessary.
In regard to grounds for refusal, I have some sympathy for that viewpoint. I can understand how prisoners would become frustrated if they are simply given a letter saying that their application has been refused. I hope on Report Stage that we can find a formula which will allow me to write to a prisoner saying that he or she has been refused on the following grounds. I thank Deputies O'Donnell and Costello for their recognition that there must be flexibility in the operation of this legislation. The Minister must be flexible in this regard, taking into account all the criteria with respect to the health and sex of the prisoner, the availability of prison spaces and the appropriateness of those prison spaces. It is worth noting that the convention makes no obligation to give grounds for refusal, but that is not sufficient reason why we should not do so. I hope to table an amendment on Report Stage that will make it clear that prisoners have rights in this regard.
There must also be sensitivity regarding confidential information which might influence a Minister. Sensitivity must be shown in cases where a prison authority might advise the Minister not to approve an application for certain reasons. Prisoners want to be given the grounds for refusal because they believe they have the right to appeal that decision. I am not prepared to accept the amendment calling for the right to appeal to the High Court because the whole purpose of the convention is to have flexibility. This is a convention between states. I indicated earlier that I would accept an amendment which would allow the prisoner write directly to the state to which they wish to transfer rather than simply making the application to the authority of the state in which they are imprisoned. That would give them the right to have their application examined by the Minister here.
It is my desire that a balance would be drawn between the humanitarian grounds for a transfer to facilitate as many as possible while ensuring there would not be excessive pressure on prison accommodation. As Deputy O'Donnell rightly said, the decisions of the past week would have been of assistance to me in the longer term. However, they would not have helped me to operate this legislation by the end of this year, which is when I hope it will come into operation. I will have to examine the question of prison accommodation as it presently stands in order to operate this legislation. I will come back to this issue on Report Stage and I will try to go at least some of the way towards covering the points made here today.
The courts must be involved in ensuring the legality of a person's detention. It is clear that the operation of the penal system is a matter for the Executive. As the Bill is drafted, the Minister for Justice is always acting on behalf of the Executive, not on behalf of himself or herself. I want to maintain that kind of discretion.
Deputy O'Donnell referred to the fact that the convention states the transfer must be consented to by the state.
