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Select Committee on Legislation and Security debate -
Friday, 16 Jun 1995


Amendment No. 12 is in the name of Deputy O'Donoghue. Amendment No. 13 is an alternative, No. 27 is related and Nos. 15, 17 and 18 are consequential on No. 13. It is proposed, therefore, that we discuss Nos. 12, 13, 15, 17, 18 and 27 together.

There is agreement on all these issues and very little discussion on them is necessary.

I move amendment No. 12:

In page 6, subsection (1), line 16, after "State." to insert "A sentenced person in a Convention state may request the Minister in writing to consent to such a transfer into the State, subject to the subsequent agreement of the sentencing state.".

If the committee accepts my amendment we will not need to discuss this matter. I think everybody agrees with it.

Perhaps the Minister will say why she is presenting the amendment. It is a response to the existing amendments and a full-scale discussion is not required on it.

The purpose behind this amendment is that a direct approach will be allowed to the Minister from prisoners abroad. She will then be able to assist in obtaining agreement to the transfer by the sentencing state. The Minister said that her amendment is similar to this one. I am not going to get involved in nit-picking about this matter but I would have thought that in the circumstances she would have accepted my amendment.

If somebody has a good idea, I will try to accommodate it. I received copies of exactly the same submission as that issued to Members of the committee from the Commission on Overseas Prisoners and in preparing my amendments I was conscious of its concerns. It was not a case of refusing to accept Deputy O'Donoghue's amendment. I worked in parallel with Deputy O'Donoghue and it just happens that Deputy O'Donoghue's amendment appears before mine on the list. Normally, when a Minister puts forward an amendment similar to an Opposition amendment, the Minister's amendment is agreed.

Amendment No. 13 will ensure that persons sentenced in a foreign state who wish to be transferred here may apply directly to the Minister rather than to the relevant authorities of the sentencing state. This will enable the Minister in turn to follow up the request with the sentencing state, whose consent will still of course be necessary. Amendments Nos. 15, 17 and 18 are drafting amendments. I brought forward these amendments in the light of discussion on Second Stage and representations I subsequently received. I believe that my amendment meets all the points. It is not a case of scoring points as to whose amendment is accepted. We all agree it is a good idea to allow prisoners overseas to have direct access to the Minister lest their application languishes in a desk drawer in the sentencing state. We have already discussed this matter at length under other amendments and I suggest amendment No. 13 be agreed to.

I support this amendment. The Minister said earlier that considering the experience of other contracting states, this may be unique. Was she referring to this section?

No, I was referring to the annual report.

It is important to give this right, although it is not a right to transfer but a right to apply to the Minister. The Minister will have discretion, based on the criteria to be outlined on Report Stage, which will ensure fairness and the exercise of proper discretionary powers by the Minister. Since the Minister is prepared to receive correspondence from applicants from here to leave the State or to come back to the State from abroad, will she therefore become a champion of the applicant? If the sentenced person applies to the Minister for transfer to this State and the Minister agrees to consider the application, is there a danger she will become involved in wrangling with the British Government on behalf of a political prisoner? Will she become involved in Anglo-Irish relations and the peace process, which is the bailiwick of the Anglo-Irish section of the Department of Foreign Affairs? If she is to be a possible persuader, this whole process will be controversial.

Will the Minister give details of the number of Irish prisoners in British prisons sentenced for terrorist crimes and their breakdown into various categories? I do not believe that the British Government will agree to the transfer of prisoners in certain categories or will entertain a remission of sentence under any circumstances. People who planted the bombs in the financial Centre in the City of London, the Brighton bomb, particularly the Warrington bomb and other bombs of that nature murdered and maimed people. The objective of their exercise was to murder and maim as many people as possible, whether men, women or children. In many cases the victims were not military or political targets, they were innocents abroad. The Minister will have to be realistic in her approach to this matter. I do not believe the British will agree to the transfer of prisoners in certain categories. I understand their position and I would not be agreeable to the transfer of prisoners from Britain or another country if they had carried out such crimes here. Each transfer will have to be considered on its merit and for that reason I would like to know the number of prisoners in British prisons and the various categories involved.

Deputy O'Donnell raised a point which touched a nerve and we should not ignore it. The language used here this morning referred to prisoners in foreign countries, in the United Kingdom and overseas. Is Northern Ireland a foreign country, in the United Kingdom or overseas? Will a person from say, Derry who holds an Irish passport and is serving a sentence in Long Kesh have to appeal directly to the Minister in Dublin to be transferred to Loughan House, Portlaoise or another prison in the South? If the Minister says that she wishes to take the matter up with the prisoner, what will happen if the entire population of the Maze prison, all holding Irish passports, want to serve the remainder of their prison sentences in the Republic? If a prisoner from Northern Ireland in jail in the United Kingdom or another country overseas wishes to transfer to a prison in the South and to appeal his or her sentence on the basis of further evidence involving legal technicalities not taken into consideration when sentenced, where will that appeal be settled? Will it be settled by the courts in the Republic or by the courts in the state in which the prisoner was sentenced? The issue of Northern Ireland complicates everything, because if it is considered a foreign country, then Dr. Paisley is right in saying that he is living beside a foreign country. That is anathema to the thinking of nationalists and many Protestants in the North and we are getting into a hornet's next.

I must remind Members that the amendments we are discussing have been agreed to. We have done everything except formally approve them. I am sure Members will bear that in mind and be brief.

They involve implications.

I had hoped that the Minister would have initially given an expose on the amendments and following that we would adapt them.

I said something on that.

The Minister eventually gave one, but it opened up the debate. I wish to make a few brief points. The Irish Commission for Prisoners Overseas circulated documentation, made a proposal along these lines and provided good documentation of the Bill. Deputy O'Donoghue, the Minister and others have accepted its proposals.

We must consider the Bill in that context. A campaign has been ongoing for a long time to get transfer of prisoners legislation on the Statute Book. That campaign did not begin this decade or the previous one. A strong campaign was under way in the 1970s and has been ongoing for more than 20 years. The campaign has not focused purely on political prisoners; that aspect is only a small part of it. It coincides with a commitment in the present Programme for Government, and in the previous one which had not been fully addressed, that the Council of Europe Convention would be translated into legislation.

It can be of assistance to the peace process. Regarding the political situation, by and large the issue of the release of prisoners will be considered in the context of negotiations under the peace process. The transfer of sentenced prisoners is an aspect of it. The Minister is making herself accessible to potential applicants, who can approach her directly and, to an extent, avoid the bureaucracy of dealing with various states. We find that measure refreshing and desirable. As Deputy O'Donnell stated, it may have implications in that the Minister may be perceived as being involved as a persuader in one form or another.

What is being provided here is a service, a conduit. The Minister is open and willing to receive applications from individual prisoners. many people consider State services bureaucratic and time consuming. They frequently do not know if their request will be granted and are not given an adequate explanation if it is refused. The Minister has adopted a proactive approach to the process and that is the extent of it.

I am sure Members will forgive me if I insist that we cannot have Second Stage speeches at this Stage. Neither can I allow Members to ask questions that were answered not only this morning but on the previous occasion we met. I will not anticipate what Deputy McDowell wishes to say, but I am sure he will avoid all those pitfalls.

I apologise for my late arrival. I was following the committee proceedings on monitor. The Chairman's increasing despair at the loquaciousness of Members comes across as well on that medium as it does here.

Regarding the amendment and Deputy O'Donnell's comment on it, I will not repeat what Deputy Costello said, but I agree that this will facilitate prisoners. I consider that the Minister should be actively involved in looking to persuade other states to allow Irish prisoners held in prisons abroad to be returned to Ireland. That surely must be one of the functions of the Bill and one of the principal reasons for introducing it. It is not difficult to imagine examples, and Deputy Deasy referred to some, where we might not wish some prisoners to be transferred here; but the guiding principle and overall rule must be to seek to transfer prisoners, I assume the amendment proposes to further facilitate that process.

It raises a more general question which was referred to last week and this week, but I am not sure if the Minister directly addressed it. I am concerned about the question of judicial review and exercise of the Minister's discretion, particularly if she accepts some of the amendments she has agreed to consider between now and Report Stage. The exercise of that discretion will be exposed to judicial review in some manner and I would like to hear her views on that. If that happens it could defeat the purpose of the Bill.

I thought I had answered Deputy Harte's question. The state in which a prison is geographically located decides whether it is a party to the convention. A prison in Northern Ireland is part of the UK prison system and anybody serving a sentence there, irrespective of where they come from, is in another state under the terms of the convention. Therefore, a person serving a sentence in Northern Ireland, Birmingham, Berlin, Madrid or in any country which is party to this convention may apply for transfer under the Bill.

In regard to a person in Northern Ireland applying for a transfer to this jurisdiction, all applications will be dealt with individually; block transfers will not be granted. In the same way as I deal with prison issues in this jurisdiction, each application will be considered carefully. Deputies are correct in sounding a note of caution in that regard as it will be necessary to hold considerable discussions on each application. This amendment will merely ensure that prisoners can make an application directly to the Minister in the country to which they wish to transfer. The convention allows prisoners to express an interest and I am inserting in legislation that they may submit applications for transfer. However, the country in which they are serving their sentences will still have the right to refuse the transfer. Deputy O'Donnell is correct in stating that there will be lengthy discussions on the transfer of some prisoners. Discussions on paramilitary prisoners and prisoners sentenced in another European country for, say, the offence of rape, will be similar. The sentencing state or the victims of crime might be unhappy with the transfer of prisoners to countries where they might serve out more lenient sentences.

Or get early release.

That is true, but equally they may be given a longer sentence, depending on the rate of remission that would operate. Any legal action that prisoners transferred here might want to take on the case for which they received their sentence would have to be carried out in the sentencing state. When prisoners are transferred here, they cannot initiate a case. The case will be taken in the sentencing state.

The convention is a three way agreement and of course discussions will take place. If I believe that for humanitarian reasons a prisoner should be transferred here, I will enter into discussions with the sentencing state and convince them to agree to the transfer. The convention deals with humanitarian issues. However, I may not always be successful in my discussions because sentencing states will have the power to refuse a transfer.

What about the Department of Foreign Affairs?

That Department would have a role to play. Practically on a daily basis there is communication between the Department of Foreign Affairs and my Department about Irish nationals who lose money or get into other types of difficulty abroad.

Deputy Deasy asked about the number of Irish people in prisons abroad. As of 21 January 1994, there were 402 Irish prisoners in the UK, 35 of whom were serving sentences for paramilitary type offences in England, Wales and Scotland. Political prisoners are not labelled as such in the UK. There were four Irish prisoners in Belgium, 14 in France, four in Germany, two in Greece, one in Italy, seven in the Netherlands, one in Portugal, one in Spain, one in Canada and eight in the USA, making a total of approximately 600. The figure may be slightly different today, but that is a ballpark figure of the number of Irish prisoners abroad who might wish to serve out their sentences in this jurisdiction.

Not all those countries have ratified the convention. Therefore, prisoners in countries that have not ratified it cannot apply for a transfer and not all of them might be eligible for transfer when their applications are examined. We will deal with the question of nationals under a later amendment.

This convention was signed in 1986 and it has taken since then to introduce it into domestic legislation. All ministerial decisions are open to judicial review, but this can be discussed in more detail under the amendments I will table on Report Stage. I must always be conscious of the fact that anything I do may be open to judicial review. I must ensure that if I am answerable to a court on a judicial review, I can give an open explanation of my reasons for doing something. I hope the amendments I put down on Report Stage will allow me that facility.

My colleague, Deputy Costello, made a worthwhile point about the peace process. Under that process many political prisoners will be released rather than transferred. Deputy O'Donnell mentioned the role of the Department of Foreign Affairs, but this Bill deals with prisoners sentenced for many types of crime. Under the peace process political prisoners will be released and that will help resolve the difficulties with prison spaces.

Is there not a clear distinction between the way we and the British view certain prisoners? The political prisoners to which Deputy Browne referred are not regarded as such in the eyes of the British.

I was referring to the peace process.

Prisoners serving a sentence in the UK for paramilitary type offences are not political prisoners and cannot be included in a prisoner release programme that operates in this jurisdiction or may eventually operate in Northern Ireland. I do not wish to enter into a wider debate on the release of political prisoners. In the fullness of time prisoners will have served their sentences and will be released, thus creating spaces for more prisoners. As a result of the peace process we gave early release to 20 prisoners. Other paramilitary prisoners in this State served their sentences and were released in the normal way.

I was not aware the Department of Justice accepted that we have political prisoners here. I am prepared to accept that we have politically motivated prisoners, but I would not accept the notion of political prisoners, which has a blameless connotation.

Our extradition legislation defines that.

I was really trying to draw a distinction between how we treat prisoners convicted of particular kinds of offences here, paramilitary prisoners and others. I felt Deputy Browne gave the impression there would be a sort of blanket release of such prisoners, that we were in the midst of discussions with the United Kingdom authorities about their 35 or so paramilitary prisoners. That is not the case. Deputy Derek McDowell is correct in saying I should not have referred to them as political prisoners; they are a particular category of segregated prisoner.

That was something to which I referred the last time we had a lengthy discussion on the status of prisoners. Our language appears to have changed within the context of the peace process "terrorists" have become either "paramilitary" or "political" prisoners. The change is really one of language. Nonetheless, we should not lose sight of the fact that we are talking about very serious terrorist offences committed by terrorists.

I take it Deputy O'Donoghue will withdraw his amendment No. 12.

As the Minister has a majority, I have no alternative, since she is insisting on her amendment being incorporated. While it appears to be the same thing, it would appear that the spirit of generosity about which she boasted earlier in the Seanad has not yet reached this Chamber.

It is extremely important that prisoners held overseas can make a direct approach to the Minister, so that possibly the Minister will be in a position to assist with such application if he or she consents to that prisoner being transferred here. It is extremely important in that for one reason or another there may be very deep-seated prejudice against an Irish citizen held in a foreign prison. In that type of lonely position it is extremely important that such a prisoner be enabled to enlist the support of our Minister for justice should he or she agree that such an applicant has a justified application.

The advice of the draftsman is that my amendment No. 13, along with Nos. 15, 17 and 18 which are consequential, achieve exactly what Deputy O'Donoghue wants but in more precise language. While there may be small differences in the wording, the intent is the same. Deputy O'Donoghue can take credit for having effected this change if that is what he wants.

Not at all, I am a Kerryman; I do not have to boast.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 6, between lines 16 and 17, to insert the following subsection:

"(2) Without prejudice to subsection (1) of this section, a request for transfer into the State to serve the sentence or the balance of the sentence imposed in a sentencing state may be made directly to the Minister by of on behalf or a sentenced person.".

Amendment agreed to.

I move amendment No. 14:

In page 6, subsection (2), to delete lines 17 to 22 and substitute the following:

"(2) Subject to subsection (3) of this section, the Minister shall consent to a request made under subsection (1) of this section if the Minister is satisfied that the following requirements have been fulfilled:

(a) that the sentenced person concerned is, for the purpose of the Convention, regarded by the State as a national of the State. This shall include such persons, being nationals of another state who have or have developed close ties with the State such as to make it desirable for humanitarian reasons that they should serve their sentences within the State;".

The Minister has also made such provision in section 4 (2) (4). However, I propose the addition of the following:

This shall include such persons, being nationals of another State who have or have developed close ties with the State such as to make it desirable for humanitarian reasons that they should serve their sentences within the State.

While realising the Minister has generally made it clear that nationals of one European Union member state who have developed close ties with another member state to which they wish to be transferred may be regarded as nationals of the latter state, nonetheless, there is need for greater clarity of the definition of "national". It is important that it be made very clear in the Bill that a "national" includes a national of another state who has developed close ties with this State, or vice versa, in the event of a person applying for transfer out of this jurisdiction to another receiving state.

The wording of my amendment is plain English, merely stating that if it is clear that a person does have close ties with this State, he or she should be regarded as a national of this State for the purposes of this Bill. This could affect both British-born prisoners who might have developed links with Ireland who wish to be transferred to this State, or Northern Ireland-born prisoners, who would qualify as Irish citizens, who might wish to be transferred from this State to the United Kingdom. While it is not a radical amendment by any means and does not warrant lengthy discussion, I hope the Minister will accept it.

This amendment is a sort of dual one in that it proposes to change the word "may" to "shall", to which Deputy O'Donoghue did not refer, thus running counter to the overall thrust of the convention, which is that there must be tripartite agreement to any such transfer. That refers to the first part of his amendment, but I shall talk about the second part with which I have sympathy. For instance, subparagraph (2) of his amendment would more or less force the Minister to consent automatically to such transfer without having any discretion whatsoever. We have already ventilated those arguments.

With regard to the suggestion in Deputy O'Donoghue's amendment that the term "national" should be comprehensively defined in section 4 (2) (a), I can assure Members that what is being sought here is already covered in the Bill, although perhaps not as obviously as some would like. If Members look at the definition of "Convention" they will see that that includes the 1987 European Union Agreement, article 2 of which provides:

For the purpose of applying Article 3 (1) (a) of the Council of Europe Convention on the Transfer of Sentenced Persons each member state shall regard as its own nationals nationals of another member state whose transfer is deemed to be appropriate and in the interests of the persons taking into account their habitual and lawful residence in its territories.

Accordingly, the Bill uses the term "national" in a wide sense because of that definition and the 1987 European Union Agreement it invokes.

In addition, article 3 (4) of the convention gives the contracting states the possibility of defining the term "national" by means of a declaration at the time of its ratification. The authors of the convention obviously foresaw this since article 3 (4) says:

Any State may at any time, by a declaration addressed to the Secretary General of the Council of Europe, define as far as is concerned the term "national" for the purposes of this Convention.

Deputy O'Donoghue's objective is incorporated in the Bill. But because we often become embroiled in a debate as to what exactly constitutes an Irish national — for example, there are 43 million people in America at any given time who will often say "I am Irish"— perhaps the term should be more clearly defined so that there cannot be any dispute when somebody declares having such close ties.

Rather than accept Deputy O'Donoghue's amendment in its entirety, bearing in mind the first part thereof, I will endeavour to find a formula of words for Report Stage which would incorporate what is already implicit in the Bill but which Members might wish was more explicit.

In those circumstances I am prepared to withdraw my amendment and thank the Minister for her response. The reason I did not stipulate the imperative "shall" was that it had been shot down on more than one occasion.

I do not think this provision is implicit in the Bill, while it is in the relevant convention. The Minister maintains it is included in the definition of "convention" but that does not contain anything that would give anybody reading the Bill an inkling that it extends to other than "nationals"per se.It would not include people who have close ties with the State. I support the idea that we should specify that more clearly in the legislation. I did not know that it was covered in any specific way in the Bill. I accept the Minister’s assurance that she will look at the matter again.

The Minister referred specifically to the EU agreement in her Second Stage speech but she also said that only four EU member states had actually ratified that agreement. Which are the four states and why have the remaining states not ratified the agreement? If our definition of "national" is dependent on the EU agreement, which has been ratified by only four countries, then clearly it is rather limited in its scope.

The EU member states that have ratified the agreement are Belgium, Denmark, Italy and Spain. We understand a number of other member states are beginning to take action in this regard.

Given that all of the remaining EU member states have ratified the convention, is there any particular reason why they have not ratified the agreement that went with it?

We can resume that debate at a later stage because Deputy O'Donoghue has withdrawn the amendment.

It will have some importance if the UK, for example, has not ratified the EU agreement that goes with the convention and therefore does not accept that definition of "national" as including all EU member states' citizens.

That is a fair point, but one assumes they will eventually ratify it. I can include a definition of "national" here. I acknowledge Members would like the definition to be more explicit, but in my view it is explicit because article 2 of the convention, for the purpose of applying article 3.1 (a) of the convention states that each member state shall regard as its own nationals the nationals of another member state whose transfer is deemed to be appropriate in the interests of the persons concerned, taking into account their habitual and lawful residence in its territory. I have agreed to put that explicitly into the Bill and I will do so.

Amendment, by leave, withdrawn.

I move amendment No. 15

In page 6, subsection (2), line 18, after "subsection (1)" to insert "or subsection (2)*".

Amendment agreed to.

I move amendment No. 16:

In page 6, between lines 39 and 40, 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.".

On Second and Committee Stages much has been said about prison accommodation difficulties and comments were made this morning by Government participants that our concerns and reservations in that regard might be unfounded. It would be self delusion, however, if we allowed the Bill to pass without taking into account the critical issue of whether there is space here for a transferred prisoner and if it would necessitate the release of another offender. My amendment asks the Minister to address the issue of space before she approves the transfer of a prisoner from another state. The inclusion of my amendment would be a practical and just way for the accommodation problem to be addressed by the Minister.

If a request for a transfer is received from a convicted rapist, burglar or armed robber who committed those offences in Britain or in another European country, in fairness to law abiding citizens here that application should be challenged. It must be decided whether it is justifiable to transfer such a person here on whatever grounds, if it involves the release of a similar type offender from a prison here to facilitate that transfer. The purpose of the amendment is not to overstate the problem of lack of prison spaces but it calls for focus to be put on the problem at that critical point of transfer. It would put an obligation on the Minister not to consent to such a request if it would result in the release of a convicted person here.

It is well known that our prison system is only surviving because of an active temporary/early release programme. Turnover of prisoners and drug addiction are the two main problems in our prisons system at present. Also, there is no reason we should not return young offenders from Britain or other countries to Ireland. St. Patrick's Institution, which has a capacity for only 148 people at any one time, had to deal with 2,111 people sent to it by the courts in 1992. The majority of those people would be serving a sentence of only three or four weeks.

I do not wish to engage in scare-mongering but if sentences are being handed down by the courts, there is an expectation in justice that those sentences should be completed in so far as is practicable. It would be contrary to justice if we were to release a person early who has been convicted of serious crime here in order to facilitate the transfer of a person who has committed similar offences in a foreign country simply because that person is Irish. That would be folly and I do not think people would accept that as being fair.

In talking about prisoners convicted of terrorist offences in other states, the question of Portlaoise prison, which has a capacity to hold 220 prisoners, arises. That prison has not been used to its full capacity and I understand when other prisoners of that category were released recently, an effort was made to transfer ordinary category prisoners there. However, that plan had to be scrapped because the political prisoners in Portlaoise prison objected.

An unusual stance has been taken by successive Governments to prisoners convicted of terrorist offences in this State and our soft approach to these people is not shared by the Governments or by the citizens of countries that have suffered as a result of terrorist offences. We do not have a category of potitical prisoner here, but different conditions apply in the way such prisoners serve their sentences. It is not generally known how comfortable the conditions are for our so-called political prisoners compared to the squalor in which other prisoners are held in the State. Is Portlaoise prison to remain the campus for political prisoners because there is no chance that so-called political prisoners returning from Britain would go to Mountjoy as they would expect Portlaoise type facilities? Is it intended that so-called political prisoners on their transfer to a prison here will be sent to Portlaoise prison to complete their sentence with only normal remission applying? Is it the intention that political prisoners who are currently seving sentences in other countries as well as Britain — numbering about 70 as far as I can see from the figures — will complete their sentences?

Where did the Deputy get the figure of 70?

The Minister said there was 35 terrorist prisoners in British jails, 14 in France and so on.

They are just ordinary prisoners.

What is the total number of political prisoners?

They do not have a category.

The Minister knows that I am talking about prisoners who have committed paramilitary terrorist offences such as the murder of British soldiers on the mainland in Germany and Holland. We are deluding ourselves if we do not get the figures and discuss where the prisoners will be sent in the event of their transfer and the conditions of their continuing detention. If we are transferring them for possible release by the Executive, let us talk about that. I do not think that this Bill should go through this House without discussing that issue because it has huge implications for right minded people here, in Northern Ireland and in Britain. In Northern Ireland they have suffered 25 years of atrocities. As Deputy Deasy said earlier, we can be flaithiúlach about releasing terrorist offenders because we have not had to pick up the bodies off the streets of our capital. We have not dealt with this issue in a public way, but if the people who perpetrated the Dublin and Monaghan bombings were in our jails and an application was made for their release how would we feel about that?

I am not talking about release but about transfer of prisoners.

That is the point I am raising with the Minister for clarification.

I have already made that clear.

It is necessary for the Minister to make it extremely clear that we are talking about the return of sentenced terrorist prisoners to complete their sentence in this country. Will the Minister confirm whether they will form part of the early release programme under the peace process by which 28 prisoners have already been released? If this Bill is to be honestly debated in this House it is important to raise this issue. My amendment is a practical mechanism that forces the Minister to address the problem of prison space at the point of consenting to the transfer of a prisoner. I hope the Minister will support it.

Deputy O'Donnell's amendment No. 16 as presented is a bit over the top. The amendment requires that the Minister shall not consent to a request for a transfer unless she has first obtained a certificate from the governor of the prison. The general thrust of what is sought is covered by an earlier section dealing with criteria for transfer. If there is not space, a prisoner will not be transferred; obviously it would be self defeating that a prisoner would have to be released on this side to accommodate a prisoner transferring from Britain or elsewhere. The Minister is providing a regulatory framework for the transfer of prisoners and the extent of the prison accommodation, the number in prison and so on will have to be taken into consideration. We have already indicated in relation to females there is not a problem with prison space and in the political wing of Portlaoise there is not likely to be a space problem because it is grossly underutilised.

The thrust of the Bill is to deal with ordinary offenders. The political process is not within the scope of this Bill and whether there is an amnesty for political prisoners is another matter. I do not think the amendment adds anything to the regulatory process because the Minister has taken on board the request to look again at the published criteria for transfer. If the published criteria include the question of prison accommodation we should not go through the cumbersome process of asking the Minister to request the governor for a formal certificate each time a prisoner is to be transfered. Obviously, the Department will be in contact with the prisons and will know the situation. I suggest the Minister adequately covered the concerns in her earlier statement when whe made a commitment to look again at section 9 (7).

This amendment runs counter to the philosophy of the Bill in the sense that it insists on a certificate being obtained from the prison governor that a place was available. I fully accept that it was never intended that this Bill would lead to a situation whereby a criminal would be released just because he applied for transfer to this jurisdiction. If the philosophy behind the Bill is to be implemented, one provides the prison places required. This does not necessarily mean releasing people just because others have applied successfully for transfer to this jurisdiction.

I said earlier that the decision not to proceed with the extra 210 prison places was extremely disappointing, but it will have to be done at some future date. It is for the Government to provide the places; but the philosophy behind this Bill was to provide that prisoners imprisoned in foreign countries, including the Unted Kingdom, who are far away from their relatives and living in extremely lonely circumstances, would have the opportunity of returning to their own country. We must not forget the considerable number of people who never came before a court, committed no offence and did no wrong but who are deprived of the opportunity to visit a relative who did do wrong. It is wrong that the families of prisoners should not have that opportunity. They should not be imprisoned in loneliness because a relative of theirs was convicted of an offence and committed to prison.

It is essential that criminals not be released because somebody has sucessfully applied for a transfer, but the Minister has said that the question of space will be a consideration when deciding whether or not to consent to an application. Places will have to be made available. The failure of the Government to provide places should not be a bar to the granting of a transfer because it is the Government's responsibility to provide places.

I agree largely with what Deputy O'Donoghue has said. Deputy O'Donnell spoke about early release. Section 5 specifically excludes the application of the Criminal Procedure Act, 1993, which overtakes the notion of Presidential pardon — I may be wrong about that. Also, the remission rates that apply in the Republic are the ones that will apply in cases where people are transferred here, but does the Bill specifically exclude the possibility of early release for people transferred here without the consent of the sentencing state?

I can appreciate the thinking behind Deputy O'Donnell's amendment, but I cannot accept the amendment on grounds of impracticality and because the emphasis in this Bill will be to create a balance between responding humanely to requests for transfers and ensuring that inordinate pressure is not put on our prison accommodation. One of the key reasons I am not in a position to accept other amendments is that it would put an obligation on me to accept amendments automatically. I want flexibility, as the convention foresaw. The convention was drawn up by wise people in the context of such a sensitive issue, and we are talking not about people who want to get a house in Portlaoise or somewhere else in the country because they think it would be a lovely place to live, but about people who have committed crimes in one country and would now like to serve out their sentence in another. I want the flexibility to consider each case on its merits and to find a way to give me and any future Minister an opportunity to consider the cornerstone of this convention, which is that it will be a three way agreement which will allow consideration on a humanitarian basis of requests for transfers.

What Deputy O'Donnell is proposing is highly impractical. Inevitably, the prison population is in a state of flux, and Deputy O'Donnell and her colleagues should not make the mistake of assuming that because there are 121 places in St. Patrick's Institution and 2,000 people pass through its doors that 2,000 people minus 121 got out and did not serve their sentence. It is not a straightforwad mathematical calculation. St. Patrick's Institution, like Mountjoy Prison, is a committal prison. Shanganagh and Spike Island are places to which young offenders who come into St. Patrick's Institution on committal are sent. In other words, St. Patrick's Institution is like a clearing ground.

The statistics are much more damning than the Minister is indicating.

I accept that people are being released from prison. However, there is a bigger throughput because young offenders tend to get very short sentences which they serve before they are released. The practicalities are that the prison population is in constant flux through people being released because they have served their sentences, through being given temporary release, through new committals and through transfer between institutions. As Deputy Harte said, there are constantly applications from people wanting to move from one prison to another for all sorts of reasons, and the governor of a prison would not have direct control over the matter to the extent of being able to assure me that he will have a place available on a particular day if I approve an application for a transfer. That is precisely why I want the flexibility, in dealing with applications for transfers, to take into account the implications of bringing somebody back. I do not want to have to release a criminal who was convicted of a serious crime in order to accommodate a prisoner from abroad. A prisoner who has a prison place abroad will have to continue to serve his sentence in that place if I do not have a prison place and I have to be able to say that I do not have a prison place if it would mean releasing a particular prisoner.

Deputy McDowell asked if this Bill precludes somebody who is transferred here from getting early release. Section 5 (4) provides that "the effect of a warrant under this section shall be to authorise the continued enforcement by the State of the sentence imposed by the sentencing state concerned in its legal nature and duration but such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court". Just as in the case of prisoners from France or Spain who leave this jurisdiction to go back to their own, prisoners who return to this jurisdiction will be subject to the system as it operates here. I cannot say with certainty that a prisoner returning here might not be considered for early release any more than I can say that a foreign national returning to his own country would not be subjected to whatever system operates there. For example, our remission rate is a quarter of the sentence; but some states have a higher remission rate and that would mean that somebody going from here to such a country would become eligible for whatever remission exists there. Deputy O'Donnell is concentrating greatly on the issue of paramilitary prisoners——

No, I am not, because we have spaces for those. It is the others who are sentenced to terms of imprisonment in Mountjoy for whom we have no space.

Anybody who visits Portlaoise prison will not find that it is like a luxurious hotel. However, the regime that has been built up in Portlaoise is one that takes into account the 25 years of violence and terrorism on this island. The conditions in the prison mean that the use of space is curtailed in order to segregate prisoners and maintain high manning levels and tight security.

Some Members stated that between 80 and 100 prisoners will be released as a result of the peace process. So far 20 prisoners have been released. On D block in Portlaoise prison there are 67 ordinary prisoners. In the subversive wing, so to speak, between PIRA, INLA and non-aligned prisoners, there are 58. In the special category — persons sentenced for armed robbery by the Special Criminal Court — there are nine prisoners; and on E block, which houses ordinary criminals convicted of serious offences, there are 28 people. The total amounts to 162. Portlaoise prison houses mixed prisoners. The number of prisoners that could be considered for release as a result of the peace process is 58. I am not aware that an attempt was made, as stated by Deputy O'Donnell, to put ordinary prisoners into the subversive block. I do not know if it was just gossip or a comment made in a newspaper.

The Progressive Democrats would not engage in gossip.

It was reported in the newspapers. I will get the newspaper cutting for the Minister.

I heard an exchange of views between two Members in the House yesterday and I thought it might have been gossip. It would be impractical to operate the Deputy's amendment. When dealing with applications, issues such as prison space will be considered. I cannot accept the amendment.

Amendment put.
The Select Committee divided: Tá 1; Níl, 15.

O'Donnell, Liz.


Briscoe, Ben.

Broughan, Tommy.

Browne, John,(Carlow-Kilkenny)

Callely, Ivor.

Costello, Joe.

Dukes, Alan.

Fitzgerald, Liam.

Flaherty, Mary.

Flanagan, Charles.

Kenneally, Brendan.

McDowell, Derek.

O'Donoghue, John.

Owen, John.

Ryan, Seán.

Woods, Michael.

Amendment declared lost.

I move amendment No. 17:

In page 6, subsection (3), line 41, after "subsection (1)" to insert "or subsection (2)*".

Amendment agreed to.

I move amendment No. 18:

In page 6, subsection (4), line 46, after "(1)" to insert "or subsection (2)*".

Amendment agreed to.
Amendment No. 19 not moved.
Section 4, as amended, agreed to.

It has been suggested that we resume the debate at 2.30 p.m. next Tuesday. Is that agreed? Agreed.

I have to attend a Council of Ministers meeting on Tuesday and the Minister of State, Deputy Currie, will deal with the remaining amendments.

The Select Committee adjourned at 1.30 p.m. until 2.30 p.m. on Tuesday, 20 June 1995.